Karen Selick: If the Supreme Court isn't broken...

by Karen Selick
National Post, April 23, 2010

http://network.nationalpost.com/NP/blogs/fullcomment/archive/2010/04/23/karen-selick-if-the-supreme-court-isn-t-broke.aspx

If ever Canada’s Senate needed an opportunity to demonstrate its value by imparting “sober second thought” to the legislative process, that moment arrived on April 13, 2010, when Bill C-232 landed on Senators’ desks.

A private member’s bill promulgated in the House of Commons by New Brunswick NDP member Yvon Godin, C-232 would require that all future judges appointed to the Supreme Court of Canada (SCC) be able to understand both French and English “without the assistance of an interpreter.”

The bill whizzed through the Commons in less than a month.  It passed by 140 votes to 137, supported by the NDP, the Bloc Québécois and the Liberals, with 31 members of the 308-member house unaccounted for. What little debate occurred indicated that some MPs are shockingly ill-informed about Canadian law and court procedures.

The case was already made in a National Post editorial published April 20 (“How to ruin the Supreme Court”) that superior legal reasoning, rather than superior linguistic skills, should be the definitive criterion for appointment to the court. The editorial also pointed out that the bill would ensure the future domination of the SCC by judges from Quebec, thereby diminishing the court’s credibility for many in the rest of Canada.

But the bill raises additional questions. One is whether it would even be constitutional. The Canadian Charter of Rights and Freedoms requires laws to be non-discriminatory on the basis of characteristics such as ethnic origin. Case precedents say that even neutrally worded laws can be discriminatory if in practice they have what’s called the “adverse effect” of excluding large swaths of the population belonging to a particular group. This law would in practice discriminate against those of Anglophone or immigrant origin, since statistically they are far less likely to be fully bilingual.

While the Constitution does permit affirmative action programs to override the equality guarantee in order to benefit disadvantaged individuals, it is hard to imagine bilingual appellate court judges or bilingual lawyers with 10 years’ experience — the two groups who would benefit by this bill — being characterized as disadvantaged.

Discrimination is sometimes a tolerated evil when job criteria are bona fide occupational requirements. However, none of the bill’s proponents produced even a single example of an SCC decision that appeared to have been wrongly decided because of faulty translations. If it were true that judges cannot genuinely understand a case unless they have read it in its original language, the court’s 143-year history should be riddled with instances of judicial misunderstanding.  Instead, MPs who spoke in favour of the bill mentioned problems such as long waiting times for French-language trials in lower courts, or inaccurate amateur translations of election campaign literature — both utterly irrelevant to what goes on in the SCC.

One MP argued that there may be nuances of language that cannot be conveyed in a translation no matter how proficient the translator. But would such extreme subtleties necessarily be understood even by all native speakers of the original language? How fully do any two people ever really understand each other? Every human being brings to each communication his own unique experience and knowledge. The need for explanation and clarification due to these differences among individuals is probably more common than the occasional instance when a nuance cannot be translated into another language, yet we don’t conclude that justice therefore cannot be done.

In any event, Supreme Court judges aren’t locked away in isolation chambers with nothing but their own brains to rely upon. The court’s practice is actually to convene en masse and discuss the cases before writing their decisions. If it appears during these meetings that the Anglophone justices are missing some poorly translated nuance of French, no doubt the francophones — there are three positions reserved on the SCC for justices from Quebec — will let them know.

If we concede to the fallacious argument that those who interpret our laws must be able to understand them in both languages, surely the next demand will be that those who make the laws — all MPs and Senators — should be similarly capable. Otherwise, how would they really know what laws they are enacting? If court translations are inadequate, parliamentary translations must be equally suspect.  

This of course is nonsense, just as the premise behind Bill C-232 is nonsense. One cannot help but suspect that this attempt to pack the court with francophones has ideological roots rather than any genuine concern about comprehension. 

The law wasn’t broken, so let’s hope the Senate has the good sense not to capitulate to this spurious attempt to fix it. 

National Post

Supreme Court for bilingual judges only?

by Brian Lilley
Ottawa Bureau Chief for Newstalk 1010

http://www.newstalk1010.com/blog/1117828

"What galls me," says retired Supreme Court justice John Major, "is that people like Bob Rae and Ignatieff vote for it."

It's shocking for a former justice of Canada's highest court to make such a direct statement about current politicians but Major is clearly annoyed at the passage of Bill C-232 in the House of Commons. The private members bill from the NDP's Yvon Godin passed third reading in the House on March 31^st with very little media attention and is now up for debate in the House of Commons. The bill would require every judge appointed to Canada's high court to be able to understand English and French without an interpreter.

On the face of it, that is a mild bill and many would say not a terribly taxing demand to make of a judge that will hear cases in both official languages. That view however takes the bill at face value and does not consider how official Ottawa implements things like language laws.

Justices on the Supreme Court hear very complex legal cases from both the common law and civil code systems, the impact of this bill is that it would require all judges to be able to hear cases at the highest level with no interpretation or translation assistance. According to Justice Major, that would eliminate most of the current court, "In the present court, there's a fair number who can carry on a conversation in French," says Major. "But there are only three completely bilingual judges."

Major's count of three is not the three judges that must be appointed from Quebec because he says at least one of the Quebec justices needs help going from English into French. Also among those that would not meet the test to be appointed is Chief Justice Beverly McLachlin who when she was appointed in 1989 was not bilingual but has since improved her French.

Justice Major argues that legal competency and not linguistic competency should be the standard for appointing judges, it's an argument backed by the government but rejected by all three opposition parties, including the Liberals which is why Major is critiquing Rae and Ignatieff directly. "Bob Rae is a trained lawyer, he was a Rhodes Scholar, he's an intelligent man, he knows the pros and cons of all this and he should have known better. And Ignatieff is the leader of the opposition who supposedly has the interest of the whole country but he's pandering to this New Brunswick motion." The pandering in Major's view is that there will be very few completely bilingual judges or lawyers west of Manitoba.

That's an argument the supporters of the bill expected and both Liberal MP Mauril Belanger and Bloc Quebecois MP Nicole Demers point to the requirement that anyone who wants to be prime minister needs to be bilingual. True, but not the point. Politics is a career one aspires to and works toward by ticking off a number of achievements along the way, do we really want people essentially campaigning for a spot on the Supreme Court based on something other than their legal mind.

There is plenty of animosity to official bilingualism across Canada and I have spent plenty of time explaining to family and friends in southern Ontario that there is a real French fact in the eastern part of our province, some of them remain unconvinced. On the flip-side of that equation, there are plenty of people in Ottawa and Montreal that have trouble believing that it is so hard to learn both languages. Yet in much of the country Italian, Chinese or Polish would be easier to learn that French because unlike French, you actually meet people that speak those other languages in your daily life. French outside of certain parts of Canada must be sought out, it is not easy to find.

Don't get me wrong, bilingualism is an asset that should be strongly considered and encouraged but why should a brilliant legal mind, say a Francophone from the Saugenay or an Anglophone from Red Deer, be denied a spot on the nation's top court due to language.  When Justice McLachlin came to the court in 1989 she was able to improve her French through studying the language and living in the language.

All three of the fully bilingual judges, LeBel, Fish and Charron were able to live and work in bilingual environments before being appointed to the court, an opportunity few people from British Columbia, the Prairies or certain parts of Quebec might have. The simple fact of the matter is that our court has a regional system that requires one judge from British Columbia and one from the Prairies two places where French is scarce. And despite what your trip to the Montreal Jazz Festival last year might have convinced you, not everyone is Quebec is bilingual.

For all of these reasons and probably some more, this bill deserves some sober second thought in the Senate even if, irony of ironies, it requires the Conservatives to beg some of those unelected Liberal Senators to help deliver it.

How to ruin the Supreme Court

National Post Editorial
April 20, 2010

http://www.nationalpost.com/todays-paper/story.html?id=2926895

If Bill C-232--a private member's bill that passed in the House of Commons last month -- is approved by the Senate, future seats on the Supreme Court of Canada will be reserved only for judges who are fluently bilingual. Judges who speak only French or only English will be barred. This puts the linguistic cart before the judicial horse and makes language skills more important than legal acumen. It also ensures that in the future our top court will be dominated by judges from Quebec and small pockets of bilingualism in Ottawa and New Brunswick.

Yvon Godin, the former union activist and New Brunswick New Democrat who introduced the bill, insists if "we have 33 million people in our country and we cannot find nine judges who are bilingual -- I think we are in trouble." But he misses the point. In the era of the Charter, the Supreme Court has so much power and passes judgment on so many critical issues that the only criterion for selecting its members should be superior legal reasoning. It would do Canada and Canadians a disservice to insist that the ability to hear a case in either official language without translation was more important than a lifetime of legal scholarship. That's a parlour trick compared to the ability to understand and synthesize complex legal arguments.

The bill would not require mere conversational fluency in English and French, either. It would make it necessary that future justices be fluent in the often arcane concepts and terminologies of both legal languages. All three opposition parties voted for Mr. Godin's symbolism-over-substance amendment to the Supreme Court Act; only the Conservative government opposed it.

If Mr. Godin's bill were already the law of the land, only two of the current sitting justices would have qualified for their current posts; none of the English-speaking judges would have. Chief Justice Beverley McLachlin, for instance, would not have made it, despite being one of the most competent chief justices in recent history. Are she and the other half dozen unilingual French or English judges unfit as a result of their unilingual ability? Is the need for judges to have arguments translated really threatening justice at our highest court?

In addition to placing far too much emphasis on language skills, the bill would also threaten national unity. Outside of a strip from Ottawa to Montreal, Quebec City and Moncton, few jurists are fluent in both official legal languages. Most speak one or the other. If there is little hope of any of our top judges coming from the vast country beyond this tiny strip, the court's decisions will soon be seen by a majority of Canadians as emanating from some distant land foreign to their daily existence.

According to the last census, 42% of francophones claim fluency in both official languages, while just under 10% of anglophones do. But only tiny fractions of both bilingual populations would ever be fluent enough to make it to the court. Should Mr. Godin's bill pass the Senate, the Supreme Court would become so unreflective of this country's people it would rapidly lose credibility as a national institution.

Official bilingualism: from failure to farce

by Lorne Gunter
National Post,
April 21, 2010

It used to be called the "bilingual belt," a narrow strip of Canada with its western anchor in Ottawa, following the St. Lawrence River through Montreal and Quebec City and ending in northern and eastern New Brunswick.

When the first Trudeau government passed the Official Languages Act in 1969, nearly all fluently bilingual Canadians lived along this ribbon of land. They still do. Four decades of linguistic tinkering by the federal government at a cost of several billion dollars has accomplished very little in terms of turning Canadians into two-language communicators.

Official bilingualism may have succeeded in getting more federal services provided in both French and English, but it has not moved the needle more than a few notches in making individual Canadians personally bilingual. Thirty-five percent of Canadians may speak two languages, but more than half of these speak French or English and another non-official language, such as Mandarin or Punjabi.

Just 17% of Canadians claim to be bilingual French-English, and that percentage is widely believed to be inflated since language skills are self-reported on the census. No one comes to your home to test your competence. Statistics Canada merely takes your word for it.

To illustrate how little personal bilingualism has penetrated ordinary Canadian society, consider that in Ontario 97% of workers claim to use English nearly all the time at work. That is down from 98% when the Official Languages Act (OLA) was passed and that includes the tens of thousands of federal workers in the nation's capital whose jobs demand two-language proficiency.

Even in Manitoba, which has the largest francophone population outside the bilingual belt, the rate is 97.2%.

The biggest change in the past 40 years has been in Quebec, where the percentage of employees using English "most often" at work has dropped from nearly one-quarter to just over 17%. But even those numbers mask the fact that 23.2% of Quebec workers still admit to using English "regularly."

Nearly 95% of Quebecers speak French, but only 42% speak English.

That's considerable though, compared with the rest of Canada, where 97.6% speak English, but only about 10% speak French.

The point of all of this is twofold. First, it tells us that all of the effort and all of the money spent by Ottawa over the past four decades -- the court fights to win minority-language schools, the erection of bilingual signs on every patronage project, the regulation of consumer products, the subsidization of culture -- has accomplished nothing except the production of a bilingual federal workforce (something that could have been created more simply, and at far smaller expense, merely by altering existing hiring guidelines).

All other advances in personal bilingualism can probably be attributed to social evolution. We travel more and technology brings us into contact with people who used to be too distant to communicate with. Beyond the public service, most gains in personal bilingualism likely would have occurred without the OLA.

The other reason for reciting all these facts is to despair for the future of our democracy if a private member's bill that already has cleared the House of Commons also manages to pass the Senate.

Bill C-232, introduced by New Brunswick NDP MP Yvon Godin, would require all future Supreme Court nominees to be able to hear cases in French or English without the aid of official translators. All three opposition parties voted in favour of this distortion of reason, democracy and unity; only the Tories opposed it.

If Mr. Godin's bill becomes Canadian law, in future very few justices will come from anywhere other than the bilingual belt. While the object of the bill may be some symbolic embodiment of our two-language principle, the practical impact will be to give bilingual francophones an influence over the Charter and courts out of all proportion to their percentage of the national population.

The bill would also rank language above legal knowledge as a criterion for the court. A brilliant civil law expert who spoke only French? No chance. A human rights specialist who was only unilingual English? Nope.

Our legal fates will be in the hands of people whose first qualification for their job is their ability to interpret legalese in both official languages.

And just wait for the happy reaction of Westerners when their next constitutional challenge is rejected by a Quebec-majority court because no British Columbian or Albertan qualified.

This is a disastrous bill. And it's shocking that it is so close to becoming law.

Supreme Court: Canadian or French

April 25, 2010

By Kim McConnell
Canadians for Language Fairness

For the first time in the history of our battle against Official Bilingualism, we have most of the mainstream media on our side.

I have captured for you three articles – two from the National Post and one from Newstalk 1010.  I have added more links at the bottom for those who want to read more from other parts of the country. 

The only articles I’ve read that urge the Senate to pass this bill are by Graham Fraser - who is only doing what he can to keep himself and his job relevant - and by Gregoire Webber, a lecturer in law at the London School of Economics and Political Science, who clerked for Justice André Rochon of the Quebec Court of Appeal and Justice Ian Binnie of the Supreme Court of Canada.  Webber is co-founder and executive director of the Supreme Court Advocacy Institute. 

Another proponent for the status quo which means – “keep the French in control of Canada”.  First, enact legislation that will give the minority French-speakers all the advantages and an easy path to power, then create a legal system that will crush any challenge by the majority to that entrenched system of power.

The majority English-speakers have nowhere to turn for respite.  We appeal to the Senate to block this bill and so far, we’ve heard from six Senators.  Five of them say “NO – they will not support the bill”; one said, “I stand for a bilingual country”.  That one was Larry Campbell, a Liberal Senator from B.C. who said he is not bilingual. 

For a list of the Senators who are against the bill, go to our web site:  www.languagefairness.ca , proceed to Breaking News – Senator responses to Bill C-232.

As you get Senator responses to your request to block Bill C-232, please send their messages to us and we will add them to the list.  We must persuade at least 50 Senators to help.

Just in case you don’t think that you can actually make a difference, just look at what happened to Dalton McGuinty’s sex education policy for Ontario’s elementary schools.  A huge protest was mounted and he has backed down!!!  So it can be done – all we need are enough Canadians to care enough to do something!!!

Kim

http://network.nationalpost.com/NP/blogs/fullcomment/archive/2010/04/23/karen-selick-if-the-supreme-court-isn-t-broke.aspx

http://thechronicleherald.ca/Canada/1179093.html