Bilingualism: A Legal Competency

If we accept unilingual justices on the Supreme Court, we should recognize it as the sacrifice it is.

The Supreme Court of Canada is a bilingual institution. It could not be otherwise in a forum that invites counsel and citizen to argue in both official languages. The Supreme Court judges, however, are not all bilingual. The country is now asking itself if this could be otherwise.

The House of Commons has affirmed that it could. Approving a bill proposed by Acadie–Bathurst MP Yvon Godin, the Commons is now asking the Senate to sanction a measure that would require a person to understand French and English without the assistance of an interpreter before being appointed to the Supreme Court.

The bill received the support of the Commons, but not the support of the government and not the support of retired Supreme Court Justice John Major. In a series of public statements, Major invites us to contrast “linguistic and legal competency,” such that “competence trumps other considerations.” The suggestion that “language is more important than competency” has, in his view, “absolutely no merit.”

Major’s contrast between language and competence suggests a stark disconnect between the legal competency of a judge and his or her linguistic abilities. Yet, I trust all would hesitate before appointing someone who could understand neither French nor English without the aid of an interpreter, no matter the extent of his or her legal competency for reasoning, research, argument, and drafting. Our hesitation would reflect a concern that understanding a case directly, unaided by interpretation, is part of the legal competency we expect of a judge. We understand that legal arguments by citizens and counsel include the ability to convince, to present, to employ rhetoric, and that part of the legal competency of a judge is to listen and comprehend.

In short, we understand that linguistic ability is an aspect of legal competency. Why should our concern become so ill-founded as to have “absolutely no merit” when we extend the linguistic ability of a judge beyond one language to two?

Parliament has long understood that language is a part of the legal competency of a judge. The Official Languages Act imposes a duty on all federal courts to ensure that every judge hearing a case in English, French, or both official languages may do so without the assistance of an interpreter. The same right is awarded to all accused before the country’s criminal courts.

This requirement of all federal and criminal courts has always had one exemption: the Supreme Court of Canada. Whereas the Supreme Court has only nine members, all other courts have far more. And whereas all other courts select which judges will hear which cases so as to avoid the need for an interpreter, the Supreme Court does not do so: all nine judges sit together.

To avoid the need for an interpreter in the Supreme Court, two options are open: either appoint more judges and select only those who need not rely on an interpreter to hear a case or keep nine judges but ensure their bilingualism. Either scenario is consistent with the requirements of language as part of legal competency. And both scenarios are consistent with the Supreme Court’s own affirmation, supported by then-Justice Major, that “where institutional bilingualism in the courts is provided for, it refers to equal access to services of equal quality for members of both official language communities in Canada.”

Why, then, has the status quo persisted for so long: nine Supreme Court judges with no bilingual requirement? It may be that we accept that some aspects of legal competency (reason, research, and drafting) are more important than others (listening and understanding counsel rather than an interpreter’s representation of counsel). The appointment of judges unable to listen to counsel directly has been a choice made many times in the past and may be a choice we continue to make in future, but it is one that should be made in recognition that it sacrifices part of – not celebrates all of – the legal competency of a judge.

So what of this linguistic legal competency? How bilingual need one be? Major suggests that the level of language skill required to understand a complex legal case is near-perfect bilingualism and that only two or three current members of the Supreme Court come close. Major sets too high a standard. Neither the Official Languages Act, the Criminal Code, nor the bill now before Parliament require such perfect bilingualism. Legal competency in language is satisfied by understanding a case without the aid of an interpreter and by that standard, all but one of Major’s former colleagues on the Supreme Court actively do so.

What of Major’s core argument: that whatever the level of bilingualism required, the Supreme Court will no longer be staffed by the “best” but only by the best among a reduced pool of bilingual candidates? If one takes Major’s definition of legal competency seriously, the Supreme Court has never been staffed by the best. We have long favoured regional representation or, echoing Major, the best judges from reduced pools of regional candidates.

We do so on the understanding that an institution is best not only when its members themselves are best, but also when, as a whole, they make the best institution. That includes the promise to all citizens and counsel that when appearing before their final court of appeal, they will be heard and understood viva voce and not through the voice of another.

Nine men and women, representing Canada’s regions, constitute the members of our Supreme Court. Most are bilingual. Some are not. The House of Commons asks us to imagine the future otherwise. Whatever we decide, let us appreciate the debate not as one opposing bilingualism to competence, but as one that understands legal competency as including the ability to listen to argument without relying on an interpreter. In a country where not all have had the opportunity to learn a second language, we may choose to sacrifice this aspect of legal competency. But we should do so while acknowledging a loss for the legal competency of a judge. I see “absolutely no merit” in denying this.