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Will bilingual judges bill ‘be brought down in the Senate?’

|Written By Tom Korski

OTTAWA - A bill to disqualify unilingual judges from appointment to the Supreme Court of Canada appears likely to die in the Senate, the MP who authored it fears.

‘I don’t want to be a pessimist, but when the government is not pleased with a bill, they just defeat it,’ says Yvon Godin.

Yvon Godin, the NDP MP who introduced it, says a Conservative cabinet minister told him his bill “will be brought down in the Senate.”

“I don’t want to be a pessimist, but when the government is not pleased with a bill, they just defeat it,” Godin tells Law Times.

Bill C-232 would amend the Supreme Court Act to require that all justices understand both French and English without the aid of an interpreter.

Opposition MPs passed the bill 140-137 over Conservative objections in the House of Commons on March 31. In the Senate, where the Conservatives hold a working majority, hearings have yet to be scheduled on the measure and are “undetermined,” an official said.

But Godin says Heritage Minister James Moore told him privately that his bill would languish in the upper house. “It was right after the Commons vote. I was happy; I won my vote. I was passing James Moore’s desk and I said, ‘Pretty good, eh?’ And he said, ‘It won’t go far when it goes to the Senate.’”

“To me, this is totally undemocratic,” Godin says.

Moore’s office refused  to comment on the issue. “We do not comment on private conversations,” a spokesperson for the minister says.

Sen. Marjory LeBreton, Conservative leader in the upper house, also declined comment on whether the bill had been stalled. Since its arrival in the Senate eight months ago, the chamber has met 56 days and passed 12 bills into law, including three budget measures.

“The agenda has been pretty light,” says Liberal Senate opposition leader James Cowan. “The government doesn’t seem to want to move that bill forward.”

According to Cowan, Liberal senators were anxious to consult the legal community on the bill’s impact. “We’re trying to get that to committee,” he says. “We want to hear from the Canadian Bar Association, from advocates, and the general public.”

Suspicions the bill will lapse followed Conservative senators’ rejection last month of the climate change accountability act, another NDP bill that cleared the Commons with opposition support. The Senate vetoed the climate bill without hearings or lengthy debate.

“The Senate has a responsibility to give these bills proper consideration,” says Cowan.

But Conservative senators have questioned bill C-232 as an unreasonable measure that would disqualify unilingual nominees to the court regardless of judicial competence.

“Bilingualism is not part of the study of law,” B.C. Tory Sen. Nancy Greene Raine tells Law Times. “What we’re looking for at the Supreme Court is the best legal minds in the country.”

Greene Raine earlier told the Senate that “to make bilingualism compulsory would change something that is useful into something that would diminish the court over time by depriving it of far too many worthy candidates.”

Elaine McCoy, a Progressive Conservative senator and former senior counsel for the Alberta Energy and Utilities Board, says that “as someone who has been to the Supreme Court,” she considers the bilingualism requirement unnecessary.

“Trial courts are a whole different game, when facts are at issue and there may be five different versions of an event,” McCoy, who prepared a utilities board factum for an appeal in Atco Ltd. v. Calgary Power Ltd., tells Law Times.

“At the Supreme Court, everything is in writing. A case has been to trial; it’s been through appeal. There is nothing spontaneous. There are no nuances.”

In fact, McCoy says a retired English-speaking Supreme Court judge told her recently that “his being unilingual did not prejudice anybody.”

“The number of times that a legal argument is studied, hashed over, reviewed, revisited, and discussed among the justices, their researchers, and law clerks does not allow for very many, if any - I would argue if any - missing of subtleties or arguments or jurisprudence,” McCoy previously told the Senate.

She added: “It seems to me the bill negates the very flaw that it allegedly corrects: that there is an opportunity and a necessity for a judge not to miss a nuance in argument. I do not think that happens or is based on linguistic ability.”

The Supreme Court Act currently requires at least three of nine judges to be from Quebec. Under other provisions, appointees must be under age 75, have at least 10 years’ standing at the bar, and reside within 40 kilometres of Ottawa.

  • It\'s time Gentlemen

    René Cadieux
    The Official Languages Act is a quasi-constitutional statute (that supersedes all Federal statutes, including the Supreme Court of Canada Act, but not the Canadian Human Rights Act).

    It is designed to implement section 16 of the Canadian Charter of Rights and Freedoms, which is itself a constitutional provision, that is not subject to the notwithstanding clause.

    Under section 133 of the Constitution Act, 1867, all Federal statutes are to be bilingual. This means that the law is in two languages.

    It does – not – mean that the English version if for English Canadians and that the French version is for French Canadians.

    It means that both versions are for all Canadians.

    In order to apply Federal law, one must therefore be able to read both versions.

    This is a requirement of the “job” of being a judge applying Federal law.

    Just as a pilot needs both eyes to fly a plane, a judge applying Federal law ought to be bilingual.

    Now of course, that is not the case. Plenty of judges (if not the vast majority) who apply Federal statutes (such as the Criminal Code) do not speak, read or know a word of French, and the legal system is far from even coming close to collapsing.

    This is because the system serves English Canada well. One can ignore the French version without any difficulty.

    And indeed, there is no difficulty in ignoring the French version, because we have translators that will tell you what it means and law clerks (few of whom speak French) who will make sure it is accurate.

    All of this ignores the recommendation of the Commissioner of Official Languages, appointed under the authority of the Official Languages Act and designated by an Act of Parliament to give his advice on the matter.

    Though conveniently ignored, his is simple.

    It’s a job requirement to hold the job to be bilingual.

    If you come from a place where French is not taught, or if you can’t learn the language, then you won’t have access to the job.

    If there is no pilot school in your community or you can’t do math, then you can’t become a pilot.

    But to say that brilliant Anglophone jurists from out West (or any where else) cannot and are not able to learn French is ridiculous.

    My problem with my boy is not whether or not he will learn a second language, but rather what third language should he learn.

    It’s hard to believe that future brilliant Anglophone jurists should seek and strive to live in unilingual bliss, particularly in a century that is already announcing itself to be no longer North America’s.

    So, you want the job, you need to get your wings.
    Section 133 applies to Quebec statutes as well.

    When Quebec decided to adopt its statutes in French only (although printed and published in both languages), the Supreme Court of Canada came down on the Government of the day with visible wrath. The “law” is not the “law” unless it is in both languages.

    If this is true for Quebec, then it is true for Federal statutes as well.

    And since the entire system is crowned by the Supreme Court, if the Supreme Court Judges are not bilingual, then what is the “law” that they write themselves?

    To be true, English and French relations for the past 300 years have had their ups and down, yet good faith has always emerged as the winner, essentially when consensus is respected.

    The consensus of English Canada on this issue is clearly not immediately visible, as expressed by the CBA resolution of August last, in utter disregard of the advice of the person specifically designated by Act Parliament to guide us on such matters (whilst the CBA has no legal authority on the issue of official languages).

    Notwithstanding, English Canada’s consensus on the issue is actually present. It is also (as is often but not always the case) very much subtle.

    The Supreme Court Judges are now almost all of them bilingual.

    The time has come.
  • The great phony bilingual scam…

    Anthony Silvestro
    What’s really going on?

    I wonder if people realize what’s going on in this country. Quebec has spent the last 5 decades wiping out the English language and culture from the province with racist, anti-English language laws such as bill 22, 178, 101…This is a fact. Racism, intolerance, bigotry, ethnic language cleansing and human rights violations still going on in the province of Quebec.

    Ya, Quebec, where the English, Scottish, Irish, United Empire Loyalists… built up the province of Kebec (original native spelling) since 1763. Yes, the same province of Kebec where the Union Jack and Red Ensign flew until 1950. Again, just the facts…This lie, this hoax, this revisionist nonsense that Quebec is a French province and that Canada is bilingual is just that, an outright lie. Fact: We have been part of the British Empire since 1763.We were officially an English speaking country for over 200 years, again just the facts.

    Almost 1 million people have been forced out of the province of Kebec due to this type of hatred/lie/spin… While all this is going on in Quebec they are forcing the French language outside Quebec in every province. Everything and anything the French demand they are getting across this entire country. They call it bilingualism (another lie never clearly defined on purpose). What are they really up to? “First Quebec, then we take over the rest of the country, one step at a time…through bilingualism…” PT, “How to take over a country through bilingualism…” SD. That’s what’s really going on. Wake up, people!

    Ask yourself a simple question. Why are we not teaching our real BNA history? Why are we not teaching our proud UEL history in our schools any longer?

    Now do you see what this bilingual judge’s debate is really about and more importantly, who’s going to put a stop to this revisionist nonsense?

    Quebec has said no to bilingualism and so should the rest of the country. Enough is enough!
  • No Bilingual Requirements

    John Happy
    I think SCC Justices must consist of among the most highly regarded legal scholars available. Sadly, this means that if you want a SCC that is filled with talent, they will not always be bilingual. That's what translators are for. Will you disqualify a potential candidate, who may be the most brilliant scholar of our time, simply because he was born in rural Saskatchewan and was not given the opportunity to learn french? Will you put the mediocre bilingual candidate above a brilliant candidate simply because he was born in a community that utilized both French and English? Doing so will not promote a healthy justice system, on the contrary, I believe it will become a significant bar for talented individuals who were simply not fortunate enough to be born in a bilingual community.
  • Ilimurator
    Please! Who would want the affliction of being born in or anywhere near, a bilingual community?
  • Will bilingual judges bill ‘be brought down in t

    John Campbell
    Happily, this is what the Senate is for --- shooting down goofy and ill-conceived ideas hatched in the commons and protecting us from them.
  • \"Bilingualism?\"

    Cyril C. Sutherland
    The Supreme Court of Canada has to consist of Judges that represent the legal community in this country from east, ( I mean east of Montreal) to west. Mr. Godin grouses about the fact his bill is being allowed to languish in the senate as undemocaratic. If he, or anyone else in Parliment understood democracy they would realize that these issues should be put to a vote of the general population. This is nothing more than a blatant, but originally well concealed, ploy to have every Justice on the Supreme court of Canada originate from Ontario, Quebec or New Brunswick. That is unacceptable.
  • Re: Unilingual judges.

    Lucretia Martenet
    It is rare that I agree with the Conservatives, but as someone living in western Canada, I think that requiring all SCC judges to be bilingual would weight the Court heavily in favour of Quebec and Ontario representation and could disqualify excellent candidates from other regions. It is important that the SCC include the best legal minds and that they represent a broad range of viewpoints.
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