While incompetence, corruption, and arbitrariness are rare, they do occasionally rear their ugly heads. Unfortunately, however, one of our system’s weaknesses is that s. 16(1) of the Official Languages Act exempts judges who sit on the Supreme Court of Canada from being bilingual.
Canada was founded by the French in the 16th century (although the First Nations’ presence in Canada has long predated their arrival). The descendants of these explorers have a long and distinguished record in building the nation of Canada. For example, George-Étienne Cartier, an eminent French-Canadian, was one of the fathers of Confederation.
Today, French-Canadians have a pan-Canadian presence. While they are primarily located in Quebec, there are francophone communities all across Canada; from New Brunswick to Ontario and Manitoba to Alberta. Because of the important French-Canadian presence in Canada — and important historical contribution to its development — English and French are our country’s official languages. The Official Languages Act stipulates this, as does s. 16(1) of the Charter of Rights and Freedoms.
This historical context is essential to understanding why many seek to change the status quo. It is what makes this quest unique and why, despite Canada’s multicultural character, no reasonable person advocates legally requiring Supreme Court judges to understand Cantonese, Italian, or Arabic.
When someone decides to pursue something through litigation, it means the issues involved are very serious for them. When the Supreme Court agrees to hear an appeal, it means the issues have an overarching public interest. Why then, does it make sense to deny francophone litigants the ability to plead before the top court in their native tongue without earpieces for the judges or themselves?
Translators who work for the Supreme Court are competent. Having said that, it is very different to hear a translation via an earpiece, where the translator may be unable to perceive linguistic nuances or discern the appropriate legal terminology, than to be able to interact with the judge directly in French.
That said, even if the translations are reliable, when a lawyer is able to plead a case in his or her first language, this ensures communication between them and the judge is more understandable. Not only that, it makes dialogue between the judges themselves more effective.
Accordingly, former SCC justice Claire L’Heureux-Dubé has argued the unilingualism of judges forces francophone judges to interact with their colleagues in English during deliberations, in addition to requiring them to write in English to avoid delays associated with translation. A bilingual court would remedy this issue.
Section 133 of the Constitution Act stipulates that federal statutes must be published in both official languages. Furthermore, the Supreme Court in R. v. Mac highlighted federal statutes published in both languages are of equal legal value.
Bilingualism is an important value in Canada. Because of that, if a case comes before the court dealing with bilingualism — something that happens somewhat often — it is only fair the Supreme Court be bilingual.
An additional point must be made: While s. 16 of the Official Languages Act exempts SCC judges from being bilingual, that same section of the law provides judges of all other federally appointed courts must be proficient enough in both official languages to hear cases without an interpreter should the need to do so arise. This leads to the absurd result that a trial judge in Saskatoon could potentially be required to be bilingual, while one on the highest court in the land will not be.
This situation must change. If lower federal courts in Canada have to be bilingual, then all the more reason for the Supreme Court of Canada to be as well.
Opponents of changing the status quo, such as former SCC justice John Major, argue requiring the court to be bilingual would deprive “the best” jurists of being appointed to the bench. With respect, this argument is self-defeating, for those who would make the best SCC judges are fluent in both of Canada’s official languages.
Kyle Nayman is in the French common law program at the University of Ottawa.