Legal Research

Bilingual Judges? Again

By Simon Fodden

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?

Full post as published by Slaw.ca on May 10, 2010 (boomark / email).