Sides line up on bilingual SCC battle

OTTAWA - A New Democratic Party bill that could become law as early as this fall is rekindling a sensitive debate over whether bilingualism should be a requirement for appointment to the Supreme Court of Canada.

And, despite a carefully orchestrated response to NDP MP Yvon Godin's bill in the House of Commons, a slip-up by the government's inexperienced heritage minister may have put Prime Minister Stephen Harper in a difficult position.

Godin first introduced the legislation following last year's election, in the aftermath of Harper's approval of the appointment of unilingual Justice Marshall Rothstein to the Supreme Court in 2006.

Rothstein was an eminently qualified jurist from Manitoba who had, among other accomplishments, been appointed to the Federal Court of Appeal before the Harper government named him to the Supreme Court.

He is now the lone unilingual anglophone on the court, following the government's decision last year to hastily name the bilingual Justice Thomas Cromwell, from the Nova Scotia Court of Appeal, to succeed retired justice Michel Bastarache.

Despite Rothstein's resumé and his promise three years ago to learn French within four years on the court, Godin and members of the francophone legal community in Canada say no unilingual appointments to the Supreme Court should ever occur again.

Godin tells Law Times he believes any citizen of Canada has the right to have their case heard in the highest court of the land in the official language of their choice.
Otherwise, they face the possibility that one of the judges hearing the arguments may misunderstand the points because of linguistic nuance or confusion, he says.

"Can we afford that kind of justice?" he asks.
The Association des juristes d'expression française de l'Ontario, which lays claim to being the largest bar organization for francophone lawyers in the country, agrees.
It first took up the cause following the retirement of Bastarache last year.

"Justices at the highest level need to be able to deal with both official languages without interpreters or written translation," says Louise Hurteau, the organization's past president and counsel for the Law Society of Upper Canada.

"They need to understand; they need to understand the acts that are before them; they need to understand the nuances that are being argued by individuals before them. The individuals need to understand that they are getting a fair hearing by judges that can hear them and understand them in their own language."

The Canadian Bar Association has consistently taken a diplomatic position, avoiding a direct position on the question of mandatory bilingualism on the Supreme Court while at the same time insisting that fluency in both languages should be among the factors taken into consideration for appointments.

"I don't want to get into the politics of it; it's not my place as president of the Canadian Bar Association," Guy Joubert tells Law Times. "Leave that discussion or that debate to the politicians.

"There are a number of criteria," he goes on. "You've heard this before, like high moral character, experience in the law, intellectual ability, judgmental ability, good work habits, good health, human qualities, someone who's sympathetic and patient, and just a good judge.

"You always want to make sure that you've always got the best people there and you also want to make sure, from an access to justice point of view, that Canadians can access the courts and receive services in both official languages.

We've always advocated that when we select a member or appoint a member of the Supreme Court of Canada, there are a number of important criteria, and we've always advocated that bilingualism is one of those merit criteria, albeit an important element in the criteria."

That delicate position - supporting the goal of linguistic fluency on the court while ducking a direct stand on whether it should be mandatory - is obviously what the government had in mind when two of its MPs spoke on Godin's bill in the Commons.

They praised its goals, but did not stake out a position on mandatory bilingualism.
"The government clearly accepts that linguistic ability is an important factor in selecting judges of the Supreme Court," Conservative MP Mike Allen, who, like Godin, represents a New Brunswick riding, told the House of Commons.

"I am aware of no suggestion that the court has failed to consistently provide all Canadians with the highest quality of justice they expect and deserve," said Allen.

But youthful Heritage Minister James Moore departed from the government script when he responded to questions from Godin at a meeting of the Commons committee on official bilingualism.

"We will have a vote in the House on your private member's bill and you will lose your debate," Moore said. "If someone cannot speak both official languages perfectly, this should not be criteria that would prevent them from submitting their candidacy for the court."

The court currently provides simultaneous interpretation during hearings, while specially trained "jurilinguists" translate decisions. It is up to each judge to arrange translation of court documents within his or her chamber if necessary.

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