Law Times

Law timeS • September 19, 2011 Solution to bilingual judges issue falls short S ome time during the next few weeks, Prime Minister Stephen Harper and Jus- tice Minister Rob Nicholson will appoint two new judges to the bench of the Supreme Court. Th ey'll replace two judges from Ontario who are retiring: justices Ian Binnie and Louise Charron, both of whom are bilingual. Th e new appointments will be important because eight of the nine judges on the bench right now are bilingual and there's legis- lation before the Senate that would require that all of them understand both offi cial languages in Canada. New Brunswick NDP MP Yvon Godin, a proud Acadian, in- troduced the bill in the House of Commons. He believes that in a bilingual country like ours, all Su- preme Court judges should be able to understand what people are say- ing in their court without having to rely on interpreters. Th e legislation passed by a vote of 140 to 137 in the House on March 31, 2010, thanks to the combined support of the Liber- als, New Democrats, and Bloc Québécois. It has since languished in the Senate. Th e legislation has led to a lan- guage cleavage that divides the pop- ulation as much as it does the legal community. At stake are the hopes of thousands of unilingual lawyers and judges who see the bill as a threat to their hopes of one day sit- ting on the bench of the top court. By a strange quirk in this bilin- gual land, the Supreme Court is the only federal court in Canada where Canadians don't have the right to have a judge who under- stands both offi cial languages hear their case. Many lawyers and judges have charming anecdotes about the forced dependency on interpret- ers. As competent as court inter- preters are, it seems that lawyers have greater trust in judges to understand what's being said. If they don't, judges tend to not be shy about asking. Th e issue isn't so simple, how- ever. Most Canadians aren't aware that Canada's statutes are written and have equal weight in both Eng- lish and French. It's not a matter of one version being the real thing and the other just a translation. You don't run a statute through a Google translation program and fi gure you're on track. Th e Criminal Code, for exam- ple, is a bilingual statute for which the English and French versions are equally authoritative. It's up to the judges to go to the other ver- sion whenever there's ambiguity or doubt about meaning. When the Quebec government accuses federal authorities of "in- gérence" in a constitutional matter, it can mean either "interference" or "meddling." Th ere's a world of diff erence. Governments can end up fi ghting constitutional cases over such diff erences. Godin's bill has a glaring weak- ness in terms of meeting the re- quirements of a bilingual coun- try. It specifi es only that future Supreme Court judges have an The Hill By Richard Cleroux "understanding" of both offi cial languages. It doesn't require them to be bilingual. Noted Ottawa lawyer Richard Auger, who represented German- Canadian arms dealer Karlheinz Schreiber at the inquiry into his dealings with former prime min- ister Brian Mulroney, has written an informative and provocative paper that suggests replacing the requirement that judges under- stand both offi cial languages with an insistence on having fi ve bilin- gual judges on the nine-member Supreme Court bench. Auger sees it as a com- between the diver- promise gent positions on the issue. His paper appears in the most recent edition of the Journal of the Institute of Parliamentary and Political Law. In the paper, Auger makes cer- tain assumptions. He writes, for ex- ample, that "any Quebec appoint- ment is likely to be francophone." But that hasn't been the case in Supreme Court history. In fact, the tradition at one time was that only two of the three Quebec appoint- ments went to francophones. Auger says he knows of no case where litigants could show they had suff ered a miscarriage of justice because the judges couldn't understand the inter- preters. He argues his proposal addresses the fl aw in Godin's bill in that it "does not require perfect working knowledge of French and English" but merely an "understanding." Th at's fair except for the fact that there's no perfect working knowledge of French and English. Th at has yet to be discovered. But couldn't Godin have writ- ten his bill to follow the wording of s. 16(1) of the Offi cial Lan- guages Act that states that in all of the federal courts, apart from the Supreme Court, if English or French or both of those languages are chosen by the parties for the proceedings, every judge who hears the case is able to under- stand those languages without the assistance of an interpreter? In Godin's world, if Federal Court and Federal Court of Appeal judges have to be able to understand what's being said in both offi cial languages, why shouldn't that be the case at the Supreme Court as well? It's by no means sure that Harper will appoint two bilingual judges to the bench in the next few weeks. But it's likely he'll at least name judges who can understand what's being said, thereby fulfi lling the requirements of our Charter of Rights and Freedoms and the Of- fi cial Languages Act. Richard Cleroux is a freelance re- porter and columnist on Parliament Hill. His e-mail address is richard cleroux@rogers.com. COMMENT Harnessing the benefits of new technologies BY NICHOLAS DEWKINANDAN For Law Times M ost lawyers I know, even those who are making eff ective use of tech- nology in their law practices, don't stop to think about how important innova- tions can be to their operations. If they did, most of them would probably fi nd even more ways to increase effi ciency, client satisfaction, and profi ts in the process. Many lawyers view technological advances as something that happens around them but that may have little infl uence on them. How- ever, for those who see the opportunities in new technologies, there are many possibilities for a more successful and enjoyable law practice. One of the tech- nological issues facing lawyers is their web site. Many lawyers underes- timate the value of hav- ing an eff ective web site because they've tra- ditionally viewed it primarily as a marketing function. Taking a look at how web sites can work as a tool in a legal practice is important for maximizing return on investment, but they can also help lawyers meet what clients expect of them in the digital age. Th e drop in the cost of the technologies necessary to take advantage of some of the most advanced features web sites can off er makes developing an eff ective one worthwhile. Imaging systems, scanners, and digital documents are another area that's completely changing the way lawyers operate. Scanning documents into an electronic format en- ables lawyers to retrieve them using keyword searches from databases created at the time they came in. Paper documents can be stored in electronic format, allowing lawyers to ac- cess them from outside the offi ce and quickly disseminate them to others. Blogs will probably go down as one of the key advances the Internet has off ered the legal community. A blog is a web site that has been set up to be updated frequently, usually with shorter informational posts that have lots of links to other information sources online. Th e idea is to provide a very rich information source for visitors to the blog. Blogs related to the law can be a very potent communica- tion tool for lawyers. Th ey can use them to provide expert information and can enhance a law practice. In addition, technology has aff ected law fi rm management concepts in much the same way it PUBLIC PROTECTION PARAMOUNT Is Mr. Dodek going to per- sonally off er compensation to those persons suff ering loss Speaker's Corner has an impact on everything else we do. Th ere are now tools available that create opportunities to streamline operations through more eff ective approaches, add new services or ways of doing things that were previously too expensive, and ultimately advance the delivery of legal services by making fi rms more effi cient. Eff ective management requires law fi rms to master technological considerations. Ex- amples of the way law fi rm management has changed include the elimination of human resources in some traditional staff activities through the deployment of computer and software solutions; expedited responses to client inquiries through high-speed Internet services; and remote access to offi ce resourc- es. Th ese tools have all created opportunities for administrators to re- evaluate their approach to operational and man- agement issues. Every new technolo- gy that makes its way into production has the potential to be useful to lawyers in their law fi rm marketing eff orts. Internet audio and video, podcasting, and even tools that make it easier to generate referrals in a traditional way hold incredible promise for fi rms look- ing to distinguish themselves in their market- ing approaches. Everyone wants to market their law fi rm in a tasteful way, and the Internet has revo- lutionized the opportunities lawyers have to do that. Law fi rm marketing is most eff ec- tive when lawyers adopt a system and follow it religiously. Anything worth doing is worth doing right. Th at's why I believe every practising lawyer should make it a policy to regularly study some aspect of law offi ce technology with an eye towards exploring and imple- menting it in order to achieve more eff ective delivery of legal services. Abandoning the perception that technol- ogy is a cost of doing business and seeing it as a way to advance a law practice are key to moving forward in this area. Granted, this isn't an overnight accomplishment. Th e good news is that lawyers don't have to become rec- ognized expert s in technology issues in order to benefi t from doing the work. A basic un- derstanding of how technology can work in a law practice can be enough to make the eff ort pay dividends. Nicholas Dewkinandan is an account executive at Interface Technologies in Toronto. Editorial Correspondence due to the negligence of non-legally trained persons? You can call it the old boys network or you can consider it a system where the protection of the public is paramount. Would you want people without medical degrees to be able to perform open-heart surgery just because the current medical model is non-competitive? ■ Comment on lawtimesnews.com by Rambo about "Disappointment at competition review." IN-DEPTH REVIEW FUTILE If the Ontario courts wouldn't even let the Competition Bureau consider whether private insur- ance companies should be allowed to off er Ontario lawyers malpractice insurance as an alterna- tive to the law society version, do you really think it should waste resources on this stuff ? Better to spend limited resources where there is at least some prospect of success. ■ Comment on lawtimesnews.com by Jorge about "Disappointment at competition review." CASE REINFORCES DECISION TO LEAVE Just reinforces my decision to leave practice was the best I ever made. I worked at a top fi rm, and the culture was much the same. Th e partners were mostly QCs and in the who's who type of publications but privately were beasts to work for. ■ Comment on lawtimesnews.com by Jack about "Lawsuit alleges abusive culture at T.O. fi rm." www.lawtimesnews.com PAGE 7

• Cover
• LSUC Fracas
• Bilingual Judges
• Focus On Business/Competition Law