The most widely read magazine for Canadian lawyers
Issue link: https://digital.canadianlawyermag.com/i/50823
opinion BAC K PA GE BY EZRA LEVANT A solution, or deliberate creation, of a problem? law. Yvon Godin's bill C-232 will restrict Supreme Court of Canada appointees to judges who "understand" French and English "without the assistance of an interpreter." The NDP MP must have been surprised when all three opposi- tion parties in the House of Commons banded together to pass his bill, which is now on its way to the Senate. Why is the bilingualism of Supreme W Court judges a pressing subject for Parliament to address? Has there been a failure of the interpreters in the Supreme Court? Has there been a misunderstand- ing that has led to an injustice? Has there ever even been a complaint? Is this a solution to a judicial problem, or is this the deliberate creation of a political problem? It is trite to say so, but from a prac- tical point of view, the bill makes no sense. Rule 11 of the Supreme Court still guarantees interpreters for the parties — unless Godin has secret plans to require all lawyers to be perfectly bilingual, too. Strangely, C-232 only requires bilingual understanding — not bilingual speaking. Is this simply poor drafting, or is there some important moral difference? But that question pretends this is a bill about the judicial system instead of politics. Godin's bill was destined to the graveyard of countless other symbolic private members bills until it was grabbed by the Liberals who wanted to spark a divisive national debate about bilingual- ism to their advantage. Unlike the Reform party of old, the Conservative government has been fairly unco-operative about living up to its crit- ics' caricature of cranky, scary western- ers. They are silent on abortion, have maintained high immigration levels, and haven't repealed gay marriage. And on spending, they're more profligate than either Paul Martin or Jean Chrétien. Thus the recent efforts by Michael Ignatieff to explore old fault lines — first by demanding that abortion funding be part of Canada's foreign aid and then by whipping his rural caucus to support the gun registry, after originally allow- ing them to dissent. But nothing pits Canadians against each other like a good row over bilingualism. The Supreme Court would hardly be the place to pick a fight over French. There is a long-standing convention to guarantee Quebec three seats on the court — or 33 per cent, despite that province's 23 per cent (and falling) pro- portion of the population. The quality of bilingual service is the highest possible, as one might imagine given the court's importance as a national institution and its location in Ottawa. But that's the thing: the Supreme Court is simply the spark to start the debate in other places. Like Saskatchewan. When Ignatieff visited there this spring, he said the problem the bill addresses was "not a minor matter" and he gave this advice to Saskatchewan law students: "You want to get on the Supreme Court? You might want to study a little French." It's the least they can do to solve a major matter. 54 JUNE 2010 www. C ANADIAN Law ye rmag.com hat started out as a long-shot private member's bill is now on its way to becoming Canadian Of course, it takes more than a "little French" to be perfectly bilingual, espe- cially in a fast-talking environment like a court, with many technical legal terms. But how likely is it that someone in Saskatchewan — where, according to the 2006 Census, French is spoken in less than 0.5 per cent of homes — will reach that level of fluency? How about Chief Justice Beverley McLachlin herself? She's a self-described farm girl who grew up near Pincher Creek, Alta. According to the Census, of the 3,290 people in the Municipal District of Pincher Creek, not a single family speaks French at home (though 430 people in the local Hutterite colony speak German). Pincher Creek isn't the only place in Canada where a language other than French is the second-most popular. Making French fluency the law for judges rules out great swaths of Canada's popula- tion, namely those who have immigrated here from another country. How many Chinese-Canadians or Sikh-Canadians are likely to learn both perfect English and perfect French upon arrival? Bill C-232 surely wasn't designed to keep vis- ible minorities off the bench, but some could call it systemic discrimination. Starting a culture war may be fair game for federal politicians — it certainly has been used to powerful effect by Pierre Trudeau and Chrétien. Fair game, I sup- pose. But throwing our Supreme Court around like a political football is new. What an irony it would be if the first woman to break the glass ceiling and sit as Canada's chief justice was told by Parliament that she's not good enough to run the court. Ezra Levant is a Calgary lawyer and author. He can be reached at ezra@ ezralevant.com. SCOTT PAGE