Late in November, Sheilah L. Martin, a bilingual Anglo-Montrealer, who has had a prestigious career in Alberta, was nominated as a Supreme Court of Canada (SCC) justice, filling the vacancy left by Chief Justice Beverley McLachlin’s retirement. This appointment has fuelled the debate over the requirement that SCC justices be bilingual and over whether this requirement prevents the appointment of an Indigenous person. We witnessed this debate when Raymond Théberge, who was recently appointed Official Languages Commissioner, appeared before Parliament on December 5.
Bilingualism as a requirement in the SCC selection process was implemented by the current government in 2016. Yet the House of Commons recently defeated a private member’s bill seeking to enshrine in law this requirement that SCC justices understand both French and English. When pressed, Liberal MPs have justified their decision by citing the Nadon reference and the possibility that the Bill is unconstitutional because it alters the constitutional qualifications to be appointed to the SCC — a view questioned by many.
The defeat of the Bill was met with relief by NDP MP Roméo Saganash and his party leader, Jagmeet Singh, who consider the idea that SCC candidates should be bilingual “colonialist.” This point of view echoes those of some Indigenous leaders, including Senator Murray Sinclair, Chief Perry Bellegarde and former Indigenous bar association president Koren Lightning-Earle.
Setting aside the bilingualism requirement would not be a tangible, fair or reasonable solution to the historical wrongs and present ills of Indigenous peoples. This solution falsely opposes the interests of Indigenous peoples and francophones, and amplifies the dominance of English in the Canadian judiciary. Only those who master English can realistically be considered for the SCC, whereas a unilingual francophone candidate has never been appointed. To illustrate with a hypothetical example: a woman who is a great Attikamekw lawyer, fluent in French, Attikamekw and Anishinabe, would not currently stand a chance at being appointed to the Court. In reality, removing the bilingualism requirement (a passive knowledge of one’s second language, be it French or English) would effectively be consecrating English as the sole language of the SCC and unfairly labelling French as the “colonialist” language par excellence. We would argue the contrary, that support of the French language contributes to the decolonization of Canada.
Recognition of Indigenous languages and legal systems in the Canadian legal system is certainly something we must strive for. If we are to decolonize Canadian law, non-Indigenous scholars and jurists must learn Indigenous languages, and resources must be made available for Indigenous legal scholars to learn French and English. This would lead to better appointments to the SCC, including the appointment of Indigenous justices. By the same token, the appointment of an Indigenous justice who speaks several Indigenous languages but only one of the two official languages (in all likelihood English) would not be a viable solution.
First, regarding oral pleadings, we should face the fact that simultaneous translation has practical limits. Often translation does not render lawyers’ arguments with all of the nuance they deserve, given their importance. Nonsensical arguments have emerged from both oral and written translations. Second, judges who don’t understand or read French may fail to consider jurisprudential and scholarly sources in that language, even highly relevant ones. The confusion may be compounded when clerks do not understand both official languages, and this weakens the quality of the jurisprudence produced by the SCC.
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In other words, that judges be bilingual is essential for the proper functioning of the judiciary, inside and outside the courtroom. Canada is officially bilingual, as are its laws, its case law and its legal scholarship. In order to fulfill their duties, it is not only reasonable, it is essential that SCC justices be bilingual, even if they have only a passive knowledge of the second language. This requirement exists in the constitutional courts of other bilingual countries, notably Belgium. The refusal by a number of jurists in Canada to recognize that bilingualism has to be mandatory at the SCC is indefensible.
In sum, the discourse that places francophones and Indigenous people in opposition is in effect ceding the higher ground to anglophones, who may not accept the need to learn a language other than English in Canada, particularly in order to sit on the country’s highest court. The situation not only harms the quality of the Canadian legal and justice systems, it is also politically destructive, and it flies in the face of the nation(s)-to-nation(s) relationship with Indigenous peoples we should be seeking. Opposition to requiring a passive mastery of the French language for all SCC candidates is incompetence disguised as a cry against injustice; a race to the bottom masquerading as a call to righteousness. Let us not be duped.
Frédéric Bérard, Co-director, National Observatory on Language Rights, and Pierre Foucher, a law professor at the University of Ottawa, also contributed to this article.
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