OTTAWA - A fluently bilingual Supreme Court of Canada is an ideal worth pursuing, critics say, but a proposed law that would enforce only bilingual appointments to the top bench is a "very, very bad idea."
An NDP private member's bill to that effect quietly passed final reading in the House of Commons late last month and was introduced this week in the Senate, where it is finally generating some public debate.
Reviews from the legal community are scathing.
"Stupid," "scary," "ill-conceived" and "pandering" are just some of the adjectives used to describe New Brunswick MP Yvon Godin's proposal -- and those come from lawyers and jurists who believe the bill is actually well-intentioned.
"I think it's a bad idea; a very, very bad idea," said David Scott, a pre-eminent Ottawa lawyer who has represented federal commissions of inquiry, the Government of Canada and former prime minister Jean Chretien.
His concern, and that of many others, is that a new bilingual prerequisite layered on top of existing regional representation rules will dramatically shrink the pool of eligible jurists -- particularly in Western Canada -- and lead to trade-offs between legal competence and linguistic duality.
Scott applauds the notion of a bilingual court and says Canada is steadily moving that way. "To me this should be achieved not by legislation, but over time by organic change. ... It's the precipitousness of it that's offensive."
Senator Claudette Tardif, the deputy Liberal leader in the Senate, sponsored the NDP bill in the upper chamber and says such concerns are "ill-founded."
In an interview, she questioned what is motivating the legal critics.
"We have to remember the Supreme Court, as a federal institution, has the mandate to serve the citizens of the land and not those aspiring to sit on the Supreme Court bench."
Tardif, a bilingual Edmontonian who is the former dean at the University of Alberta's French-language faculty, said she believes the number of young bilingual lawyers and jurists is increasing, although she has no statistical evidence to back her claim.
"The important part here is that if this bill was passed it would send an important signal to different universities and faculties of law and they would certainly prepare the students accordingly," Tardif said.
She says court interpreters may be good, but they can never be perfect, and litigators have the right to be heard and understood in their mother tongue.
"The stakes are too high when you're at the highest level of the land, your last court of appeal," said Tardif. "That is an injustice that some citizens have to put up with, that others don't."
But the high stakes of Supreme Court rulings are exactly why critics say the bilingualism prerequisite is so misguided.
"There's a great risk of loss of public confidence in the institution if we end up with people whose principle quality is that they understand French," said Scott, a unilingual lawyer who at age 74 is certainly not angling for an appointment to the Supreme Court himself.
The Canadian Bar Association has not taken an official position on the legislation. Nor has its Quebec division, according to Quebec director general Veronique Saulnier. However the Quebec Bar Association came out in favour of mandatory bilingualism for Supreme Court judges two years ago.
Retired Supreme Court justice John Major, a unilingual anglophone who served 14 years on the top court, has been unstinting in his criticism of the bill.
"The requirement should be competency, to the exclusion of almost everything else," Major said in an interview from his Calgary law office at Bennett Jones LLP.
Major noted appointments to the top court are already constrained by regional requirements, which he calls a "necessary evil."
"If they make (bilingualism) a requirement, I don't know where you're going to find both competency and fluency in places like Vancouver and Calgary and Edmonton. ... So much of this is just pandering."
Of the nine justices currently on the top court, eight are deemed to be bilingual. But Major argues only a handful can actually hear complex legal arguments without some translation help.
Recently retired justice Michel Bastarache, a lifelong champion of bilingualism, appeared to confirm this when he was asked by The Canadian Press to comment on the legislation.
"Mr. Bastarache is afraid anything he would say would be interpreted as an evaluation of the capabilities of his former colleagues; he has therefore decided not to comment on this bill," his office said in an email.
Major says the oral argument angle is vastly over-played, regardless, since litigants have the right to be tried in the language of their choice at lower courts where factors such as witness credibility come into play. By the time cases hit the Supreme Court, Major says 90 per cent of the material is in writing.
"Suppose you were there facing internment, imprisonment, loss of property or loss of rights. Would you be more interested in the diction of the judge or the knowledge of the judge?" asked Major.
"If I was having a tumour removed, I wouldn't much care about the linguistics of the surgeon. I'd want his competency."
That issue of court competency is what leaves some observers scratching their heads.
Lawrence Greenspon, a leading criminal lawyer in Ottawa who is also multilingual and speaks impeccable French, questions why the new bill is necessary.
"Is there any suggestion that it's not working or somehow resulting in less than quality justice being dispensed?" he said.
"Because the price you pay for that (bilingual prerequisite) is that many good people, who would otherwise be eligible for the Supreme Court of Canada, won't be eligible.
"It's only justifiable to shrink the pool if there's some evidence that the current system is not working well."
Chief Justice Beverley McLachlin of Pincher Creek, Alta., has worked steadily at her French since she was first named to the top bench in 1989. Some argue that the widely admired jurist would never have qualified for her initial appointment under the new law.
But Tardif said the legislation requires only that a person have "comprehension" of both French and English and that the actual level of language competency and how to test it can be figured out after the bill is passed.
"You pass a bill and then there's the whole process of 'how is it implemented?"' said Tardif.
As an example, she suggested prospective appointees might be required to field questions in both official languages at a House of Commons parliamentary committee.
That would appear to open the scrupulously non-partisan Supreme Court appointment process to a whole new world of political jousting over language competency.
It is a critical and unanswered question about the legislation: what level of fluency will suffice?
Gilles Ouimet, vice-president of the Barreau du Quebec, says "the whole idea of really being understood by the court is at the core" of the bilingualism push. "You do need the nuances -- all you're really saying -- to be understood."
Yet Ouimet concedes that bilingual "perfection is not the objective."
"It's the perception they're being heard in their mother tongue," that is paramount, he said.
The governing Conservatives opposed the NDP private member's bill in the Commons but were out-voted by New Democrats, Liberals and the Bloc Quebecois.
Conservatives now outnumber Liberals in the Senate but remain just short of majority control. Tory Senate leader Marjorie LeBreton says she expects the legislation to be "debated pretty vigorously."
"The whole system of selecting judges is guided by the principle of merit and legal excellence. And you respect the regions. So how on earth can you follow those principles if you reduce the pool of qualified candidates in the regions? It makes no sense," said LeBreton.
Conservatives who have long complained of the "unelected, unaccountable" upper chamber altering bills passed by elected MPs may be forced to intercede.
"There's no plan on the government side to deep-six it or anything," said LeBreton. "We'll treat it the way of most private members' bills. It will get a fair hearing."
Major, the former Supreme Court justice, hopes the Senate rejects the bill and sends it back to the Commons where it might get a good public airing next time around.
"I haven't heard an argument in favour of it other than, 'Aren't we a great country? The highest court is fully bilingual!' " he said.
"Maybe they should all be teetotallers, abstainers, virgins ... name it."
