4.05.2010

C-232: a bill to right an obvious wrong: supreme court justices should be bilingual

A couple of weeks ago, I happened to catch a bit of House of Commons proceedings that I found eye-opening. New Brunswick Member of Parliament Yvon Godin (Acadie-Bathurst) brought forward a private member's bill (C-232) that would require justices appointed to the Supreme Court of Canada to be able to hear cases in both official languages without a translator.

I was floored. You mean Supreme Court justices do not have to be bilingual? That is correct. Judges in every other level of federal court must be able to hear cases in either English or French. But in the Supreme Court of Canada, the highest court in the land and the court of last resort, there are Anglophone justices who can only hear a case prosecuted in French through the use of an interpreter.

I mean no disrespect to the amazing interpreters out there who do an incredibly difficult job, but if my case were being heard by the Supreme Court, I'd rather not depend on an intermediary for clarity - an intermediary who I might not be able to understand, so I wouldn't be able to assess the accuracy of the translation!

I saw the second reading of the bill. I put this post in drafts, then couldn't find time to get back to it. And before I did, the bill had passed its third reading! It's on its way to the Senate now.

This is a complete no-brainer. Only this Conservative government would oppose it. I suppose it complicates their patronage plans.

Good job by Yves Godin and the NDP, and cheers to a united Opposition that can pass a private member's bill!

Story from Lawyer's Weekly:
Few lawyers would deny that only the best qualified jurists should be appointed to Canada’s top court — but what is best is partly in the eye of the beholder.

With three Supreme Court of Canada judges facing mandatory retirement over the next five years (2 from Quebec and 1 in Ontario) the government making the next appointments will have to decide what it wants, beyond impeccable legal credentials, good character and sound judgment.

There are already plenty of ideas on offer about what other characteristics and qualifications the next Supreme Court nominees should possess.

On Parliament Hill, for example, NDP, Liberal and Bloc Quebecois MPs have joined ranks to back a private member’s bill which would require all new Supreme Court appointees to be able to hear appeals in both official languages, without the assistance of interpreters.

The Conservative government opposes Bill C-232, but was unable to kill it at second reading debate last May, when the bill passed by a vote of 140 to 133.

If passed at third reading next month, Bill C-232 would rule out many otherwise well-qualified candidates for the high court, particularly for the upcoming vacancy in Ontario, and future openings in the West (for example, Stephen Harper’s first appointee after he became prime minister, Justice Marshall Rothstein of Manitoba, was not bilingual).

Bill C-232’s sponsor, New Brunswick NDP MP Yvon Godin, argues that all Canadians are entitled to have the nuances of their arguments in both official languages fully understood by all the members of the top court.

He says he has no sympathy for eminent jurists who could find their Supreme Court aspirations dashed by his bill.

"That's not what should be the test," the former miner and union official told The Lawyers Weekly. "At the lower level nationally, the Federal Court, they have to be bilingual, so why not the Supreme Court?"

Francophone Supreme Court judges from Quebec and New Brunswick have long been obliged, in practice, to be bilingual before they are deemed worthy of appointment by the government, Godin points out. Why should there be a lower standard for anglophone jurists, he asks.

He scoffs at the suggestion that qualified bilingual candidates are scarce in some regions. "We have 33 million people in our country and we cannot find nine judges who are bilingual—I think we are in trouble," he says. . . . [More on Supreme Court of Canada appointments here.]

13 comments:

geek guy said...

I understand your point.!
-but 3 of the 9 must be competent with french because the 3 must be from Quebec
- only 1 of the 9 now on the court is not bilingual he was appointed by the current PMO

- if memory serves section 14 of the charter stats a party or wetness most have access to translations.
- "C-232 May violate that!

L-girl said...

-but 3 of the 9 must be competent with french because the 3 must be from Quebec

But all the justices have to make the decision. That's how the Supreme Court works.

- only 1 of the 9 now on the court is not bilingual he was appointed by the current PMO

And...?

This will mean exactly what it says: that all Supreme Court justices will have to be bilingual, not 3 or 4 - 9. That in the future all appointments will have to be bilingual. It's pretty basic.

- if memory serves section 14 of the charter stats a party or wetness most have access to translations.
- "C-232 May violate that!


How on earth would this violate that? Everyone can still have access to translations. This is about judges being able to hear a case in the language in which it is being argued.

Marky Mark said...

If this bill passes it will be struck down as a violation of the Charter.

L-girl said...

Marky Mark, please explain further. It is currently a requirement for all federal court judges except the SCC to be able to hear cases in both official languages without an interpreter. How, then, can it be a Charter violation for Supreme Court Justices to be held to the same standard? And why wouldn't anyone from the Liberals, NDP or Bloc know that?

Marky Mark said...

L-girl,

The way I see it, the Charter provides for equality of access to the courts through translation. It similarly provides that both official languages may be used in Parliamentary debates (and translation services are provided). The whole thrust of official bilingualism is to allow equality of access to all federal institutions. This new bill in my opinion takes it further by requiring a level of bilingualism that goes beyond access and actually causes hardship to and discrimination against unilingual Canadians. For this to be constitutional it ought to have been put in the Charter and approved. It would be the same as a law requiring MP's to be bilingual and not relying on translation services in Parliament.

I think if it is challenged the law will be struck down both due to the wording of the Charter and for policy reasons.

Re: federal court judges, someone might challenge that requirement but it is a bit different because the SCC decides constitutional issues and is much more important than federal courts (which have a different role that federal courts in the US). Re: the parties who support it, I don't think it is a slam dunk legal argument so they can't be faulted for not thinking of it--plus they get political points for trying because it seems to make intuitive sense, at least in vote rich Quebec.

L-girl said...

As I suspected, your reasoning is based on your opinion and interpretation, and is not quite the simple declarative statement - "it will be struck down" - of your initial comment.

Of course the bill is good politically for all the opposition parties. It is also true that the Supreme Court hears the final and ultimate review of many cases that have risen up through the federal court system.

I am not a Charter scholar, and I assume you are not either, but I think given the situation in the rest of the court system, this stands a very good chance of passing and remaining law.

I watched the Parliamentary debate, and not a single Conservative MP arguing in opposition to this bill mentioned it was possibly a Charter violation. If it was such a sure thing as your first comment suggests, I'd think at least one of them would have gotten the talking point.

Thanks for your explanation. It will be interesting to see what happens.

Marky Mark said...

L-girl,

I suppose I did make a bit of a "bald" statement but that in part was a reaction to the concept that this is an obvious wrong. Like all cases that go before the courts, there are two sides to argue. My view, based on my legal training, is that if this is argued the law will not withstand the review. And remember as well that it is judges who get to decide thia question, whereas legislators never think their laws will be struck down, but it happens all the time.

L-girl said...

I do think it's an obvious wrong.

I'm not referring to legislators thinking or not thinking their laws will be struck down. I'm talking about Conservatives arguing against the law, and not one ever mentioned a Charter conflict.

In addition, just because something is ruled constitutional or unconstitutional doesn't necessarly equate with it being right or wrong. See recent SCOTUS rulings about corporations and free speech.

geek guy said...

Section Fourteen of the Canadian Charter of Rights and Freedoms is the last section under the "Legal rights" heading in the Charter. It provides anyone in a court the right to an interpreter if the person does not speak the language being used or is deaf.

"C-232: if passd will be struck down

L-girl said...

GG, thank you for the prediction. I'm sure any day now the government will get around to changing the rules for appointments to the entire federal court system to comply with your interpretation of the Charter.

Marky Mark said...

This actually is an interesting policy issue as well as an interesting legal issue. I poked around today and can tell you that there are some in the bard who are organizing against this change and who will challenge any such law on, among other grounds, the Charter.

While it would be desirable if all SCC judges were bilingual, in my view it is inappropriate for Parliament to fetter the discretion inherent in the appointment process with such a requriement. SCC cases are appeals, not trials, with the most important materials being written facta which can easily be translated together with trial records which of course also requrie translation as the trial takes place in whatever language(s) applied and is not simaltaneously translated.

SCC cases do have live arguments by lawyers and a lawyer can arue in either Enlish or French. In my view it is more important to have the best leal minds to hear the arguments and make decisions than to require bilingual judges. As well, given s. 14 of the Charter, there is an excellent argument to be made that what is envisioned isn't bilingualism but available and free translation.

L-girl said...

In my view it is more important to have the best leal minds to hear the arguments and make decisions than to require bilingual judges.

That's a false dichtomy, presuming some kind of either-or choice that does not exist. It also presumes that "the best legal minds" are chosen for SC Justices and this requirement will somehow through a wrench into that process.

Justice appointments are not actually given to "the best legal minds". They may be very good legal minds, but there are always many other considerations, including patronage. In this case, bilingualism would be one of the several requirements, just like it is for so many other important federal positions.

In any case, I see no reason to continue this discussion. We'll see what happens if/when the bill becomes law. Thanks for your thoughts.

Marky Mark said...

Hi there-FYI the National Post has pro and con arguments on this today with the "con" piece arguing that the law is unconstitutional.