Bilingual Judges… Again

It might be time to visit once again the substance and situation of Bill C-232, which received 3rd Reading on March 31 and awaits Royal Assent to become law. The text the legislation is as follows:

1. Section 5 of the Supreme Court Act is renumbered as subsection 5(1) and is amended by adding the following:

    (2) In addition, any person referred to in subsection (1) may be appointed a judge who understands French and English without the assistance of an interpreter.

1. L’article 5 de la Loi sur la Cour suprême devient le paragraphe 5(1) et est modifié par adjonction de ce qui suit :

    (2) En outre, les juges sont choisis parmi les personnes visées au paragraphe (1) qui comprennent le français et l’anglais sans l’aide d’un interprète.

Section 5(1) referred to in the Bill says that “Any person may be appointed a judge who is or has been a judge of a superior court of a province or a barrister or advocate of at least ten years standing at the bar of a province.”

There has been a considerable amount of comment on the Bill in the media and the blogs (see also the comments on the entry on The Court), the bulk of it, so far as I judge from a cursory look, is negative.

The typical objection is that expressed quite forcefully by Justice John Major, an unusual public pronouncement on legislation for a Supreme Court judge not speaking “ex cathedra.” He’s quoted as saying;

The stakes are so high in some cases you just want the best people you can get. . . . If the test is the most competent versus the most competent who is somewhat bilingual, my own opinion is that I want the most competent judge. . . .It’s the same as surgery. I want the best doctor, I don’t want the linguist.

Put aside the argument in the last sentence quoted, which is shockingly bad even for a non-linguist. The remainder makes a point that rests on the assumption we can measure with some sort of accuracy who is “best” or “better” for the job. It’s a false assumption, I believe, that choice among people in such situations is a matter of measurable, agreed-upon qualities enabling us to compare apples with comfort.

It seems to me that there is a cluster of qualities we look for in a potential judge, ranging from things like demonstrated intelligence through broad knowledge of Canadian society to the possession of values of which we approve. And though there can be general agreement that so-and-so possesses enough of these qualities (that is, the ones on which we agree) to be a contender, it’s mistaken to imagine that a comparison of those who get over an initial hurdle can be sufficiently clear cut to give words like “best” or “most competent” any useful meaning.

Then there’s the difficulty of connecting our favourite qualities with outcomes. The U.S. experience, if not our own, shows us that judges in office often turn out to be considerably different (better? worse?) than our judgment of them as candidates predicted, which simply adds another level of uncertainty to the calculus.

Doubtless, throwing in this further factor of that must be considered makes the task of selection more difficult, both as a practical and a political matter, highlighting, as it does, the fracture lines in our society. And it may be that for a while, under legislation like this, we would have some appointees who, though their qualities take them over the “could she do it?” hurdle, have not achieved as exalted a reputation as others. I believe we’d survive this onslaught of perceived adequacy just fine. And in so doing, we’d begin to propagate the important notion that so long as our laws are true in both languages, it makes sense to have jurists at all levels who see that nothing (or nothing much, at least) gets lost in translation.

But all of this debate may be beside the point. The Bill has not yet received Royal Assent. And I’m too poor a constitutional scholar to know whether the government of the day may in effect ignore the expressed will of Parliament by simply failing to seek and obtain Royal Assent. What is the case, Slaw readers? And wouldn’t it be grand if the matter had to go to court?


  1. The late Eugene Forsey said, “Assent has never been refused to a federal bill, and our first prime minister declared roundly that refusal was obsolete and had become unconstitutional. In Britain, Royal Assent has never been refused since 1707″.

    That was about the Crown denying Assent, but it would be an equal breach of the privileges of Parliament for a Prime Minister to recommend to the Governor General that the Royal Assent should be withheld.

    It’s not going to happen on a Bill of this nature.

  2. I agree with Simon on this, it is unthinkable and unconstitutional for a prime minister to refuse to send a bill passed by both houses to Royal Assent – the position has no veto power, as in the US.

    I also don’t think that it will happen with this bill. This is a private members bill, and according to the information on the Library of Parliament website Legisinfo it was introduced previously in 3 sessions of Parliament and didn’t pass. The only difference this time is that we have a minority government.

    The bill, like most private members bills, is an attempt to score political points and embarrass the government on a seemingly controversial issue which, when viewed rationally and historically, is entirely unnecessary in Canada – the judicial selection process is rigorous, requires 3 judges from Quebec, and the unilingual justices all are required to undergo training in both official languages.

    The bill, and many of the comments, totally obscures the overall success of bilingualism in Canada, certainly in New Brunswick and Manitoba, but in may other provinces as well. French Immersion is alive and well, certainly in BC, as indicated by Statistics Canada amongst other sources.

    The proposers and supporters of this bill are fighting a battle that has already been won!

  3. Well, Senator Forsey can say it has never been done, but had a Canadian government before the current one ever simply refused to comply with a declaration from the Supreme Court of Canada about what its legal obligations were? The Harper government has done it a couple of times.

    They’re tough on crime but very weak on the rule of law.

    Simon C misses the third case that is probably at play here, though: not the Crown refusing Assent, which I agree is obsolete; not the government recommending refusal of assent, which is just bizarre if the Crown has no more power to refuse; but the government simply not submitting the passed bill for Assent.

    That shows some contempt for Parliament, but if the government can have contempt for the courts for declaring the law, why not for Parliament for passing such a piece of trash as this?

  4. Me Pierre Gagnon, avocat

    Sadly, or happily, the linguistic duality of this country will either keep us together, or take us apart. No one nowadays would think of leading this country, as a Head of State, without being fully bilingual. We have evolved, I gather. But the legal profession evolves differently, or at a different rhythm, I suppose. The top court needs bilingual judges, truly, and it needs lawyers trained in both systems of law. I much sympathize with old John Major, but the future of this country is not for unilingual jurists nor is it for lawyers trained in only one system of law.