Bill C-232: Bilingual Supreme Court Bill

...stalled in Senate? Sorry, missed this short piece from a week ago.

Checkmate On Bill C-232

From l'Association canadiennefrancaise de l'Alberta

Alberta francophones disagree with the government of Alberta's position on Bill C-232 as laid out in Justice Minister Alison Redford's column. We feel that the rights of citizens to a full defence before Canada's highest court trumps the rights of unilingual lawyers and judges to patronage appointments.

Well said. The Senate should pass this one.

Bill C-232: The Pro Side

A very interesting read from Lawyer's Weekly re Bill C-232, which provides that in the future, judges of the Supreme Court of Canada must understand English and French without the assistance of an interpreter. My favorite bit is on the accuracy of translations:

So let’s have a closer look at the accuracy of the interpretation at Supreme Court hearings. I argued a case last month in the Supreme Court. When I said, in French, “The Gosset case affirmed the principle of full compensation of the injury”, the interpreter translated “Gosset says that there has to be comprehensive damage”. When I wanted to contrast the civil law and the common law, which adopt different positions on the compensation of grief, I said, in French, that “at common law grief is not compensable”. The interpreter omitted to translate “at common law”, making it sound as if the statement related to the civil law, thus inserting a contradiction in the English version of my argument. Other examples of errors are the translation of “droit commun” (which means general law) by “common law” (a totally different concept), saying that one’s rights were not breached without specifying that I was talking about “Charter rights”, which makes my argument incomprehensible, or saying that the second paragraph of article 1610 of the Civil Code was not applicable when I said that it was.

Overall, the interpretation was good, but inconsistencies, incomplete statements and, indeed, errors such as these necessarily affect the force and the logic of the oral arguments presented. A legal argument is like a chain: if one piece breaks, the whole thing falls apart. Legal language is highly technical and cannot suffer from imprecision.


Yet, I was lucky, as all the members of my seven-judge bench understood French and did not rely on the interpretation provided. Michel Doucet, who argued Charlebois v. St. John (City) in 2005 before a full bench that included Justice Major, was not so lucky. He was shocked when he listened to the English version of his argument on CPAC. The interpreter distorted the meaning of several sentences, omitted a reference to a section of the Charter, and totally omitted to translate a sentence.

Lawyers who appear before the Supreme Court finely hone their arguments and rehearse several times. Each sentence is carefully crafted, especially as time is short. It is not too much to ask that judges understand all the subtlety and the nuance of what is being said, in the language in which it is said.

By the way, if C-232 is considered "well-intentioned", and most people seem to feel that it is, why not ask to Senate to slap a delayed implementation date on it--say 8 years down the road (undergrad degree plus 4 years law school)--so that the current crop of unilinguals get a chance to serve but the next generation of lawyers with SC ambitions can train up to the level required?

Tory Senators Will NOT Support Bill C-232

...which would force the government to appoint bilingual Supreme Court Justices. Here is Manitoba Senator Donald Neil Plett, a Harper appointee:

I am very proud to say that our Government is guided by the principles of merit and legal excellence in the selection and appointment of judges to Canada’s superior and federal courts. Therefore, we will not support Mr. Godin’s Bill.

Bill C-232 would hinder regional representation by reducing the pool of highly qualified candidates from regions where fewer individuals are capable of hearing a case in both official languages.

Notice the use of "we"; I am assuming this means that the Tory Senators will be voting as a bloc, and not that Mr. Plett prefers the majestic plural.

Bill 232 Pot Pourri

Bill C-232, An Act to amend the Supreme Court Act (understanding the official languages), would in Lorne Gunter's words:

...amend the Supreme Court Act to insist that all future appointees to our highest court be fluently bilingual, and not just fluent in conversational French and English, but in both official legalistic languages. It will make it a prerequisite for justices to be able to hear all cases without the aid of translation.

Forget whether the bill is a good or bad thing for a moment (although more on that towards the end), Gunter makes note of something interesting:

There is almost no chance of stopping Bill C-232. It passed the House of Commons late last month with all three opposition caucuses voting for it. Only the Tories voted against, but even they didn't kick up much of a fuss, so most Canadians were unaware the bill was even being discussed.

He's quite right: looking through the Open Parliament references , you find a whole three pages worth of MP debate on this bill, extending from about May of 2009 until the end of March 2010. Of the Tory Caucus, only Terence Young, James Lunney, Ed Fast, Jacques Gourde, and Steven Blaney bother to raise the government's objections. Furthermore, their arguments come slathered in rhetorical goo touting the Conservatives commitment to official bilingualism. This is an interesting contrast to the response from grassroots conservatives, which has veered towards the apocalyptic. So what's going on? Clearly, the government is walking on egg-shells over C-232.

One possibility, that Gunter raises but seems to discount, is that the Tory strategy is to let the bill die in the Senate. With a government plurality in the upper chamber, that seems a likely outcome, especially since the new Senators tend to vote like CPoC back-benchers, and since independent Senator Elaine McCoy has expressed her disapproval of the bill in fairly strong language.

Beyond that, there is some question as to how onerous the new requirement would actually be. Max Yalden writes that

[Dan] Gardner is not altogether accurate when he says that the proposed bill would "bar anyone who is not fully fluent" in the two languages from appointment to the Supreme Court. What it says is that a person may be appointed who "understands French and English without the assistance of an interpreter" which is a quite different, and less demanding, criterion.

This point gets expanded upon in Ms. McCoy's comments section:

Drastically less demanding. And I'm sure you know that simply understanding speech is quite different from the requirement to be fully bilingual, or be able to speak or write fluently. And you are too canny to confuse the difference between interpreters and translators. The bill has the very mild aim that the Supreme Court meet the same basic standard as all other courts, the Federal Court, Tax Court, Court of Appeal, etc., which have all had the same requirement for years now, with no noticeable problem. It is a standard the Supreme Court has itself approved and advanced, for all other Federal courts and institutions. And eight of the nine current Supreme Court justices currently meet that mild criterion of oral understanding, and it was nine of nine until recently, and I know of no-one that has accused those courts' composition as evidence of lower legal standards...

In any case, the line of defense being taken by some opponents of C-232--that it will exclude Westerners and/or Conservatives--from the bench (because appointees will now come disproportionately from the Liberal hotbed of central Canada) seems misguided. In so far as it seems like a demand for affirmative action on behalf of monolingual Albertans. The obvious response seems to be that if Westerners and/or Conservatives want to have their representatives on the Supreme Court, they should get up off their asses and learn French.