Law Times - Newsmakers

Dec 2010 Newsmakers

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news Bilingual SCC a vexing issue in 2010 BY GAIL J. COHEN A private member's bill requiring all judges of the Supreme Court of Canada to be bilingual stoked a bit of a linguistic feud in the legal community earlier this year. Bill C-232, introduced by NDP MP Yvon Godin, has passed third reading in the House of Commons and is now being considered in the Senate. It would require all future appointees to understand French and English "without the assistance of an interpreter." "We have 33 million people in Canada", said Godin, "and if we can't find six who are bilingual, we're in trouble." The bill narrowly passed by a vote of 140 to 137 in the Com- mons on March 31, with the Liberals, Bloc Québécois, and NDP together outvoting the Conservatives. In the Senate, however, the Conservatives enjoy a slim majority. In some ways, the furor surrounding the bill is a microcosm of every Canadian linguistic debate: anglophone versus francophone; East versus West; political play versus real constitutional issue. The argument over whether the need for bilingual judges on the top court is real or simply political gamesmanship became quite heated. "This debate is being used as a political wedge between the gov- ernment and the opposition. Never play politics with the Supreme Court. We need only look to our south to see the effects of poli- tics in judicial selection," wrote bilingual Manitoba lawyer Darcy L. MacPherson in a Winnipeg Free Press opinion piece in November. Detractors of the bill argue vehemently that it would greatly diminish the pool of qualified candidates and virtually exclude prospective judges from the Western provinces. Retired Supreme Court justice John Major, a unilingual anglo- phone who served 14 years on the top court, strongly opposes the bill. "The requirement should be competency, to the exclusion of almost everything else," Major told The Canadian Press. Supreme Court appointments are already constrained by regional requirements, which Major called a "necessary evil." "If they make [bilingualism] a requirement, I don't know where you're going to find both competency and fluency in places like Vancouver and Calgary and Edmonton. . . . So much of this is just pandering." Eight of the nine current top court justices are bilingual, although to varying degrees. Justice Marshall Rothstein is the only unilingual judge on the bench. Peter Cory, who sat on the court from 1989 to 1999 and who is flu- ently bilingual, told The Globe and Mail when the bill was first pro- posed that it would be "very sad" if an otherwise outstanding candi- date for the court was disqualified simply because of a language requirement. The court "would be losing the value of an able and experienced person to deal with some of the most difficult issues facing Canada," he said. In August, the Canadian Bar Yvon Godin introduced the Association waded into the fray, passing a resolution at its annual meeting that urged Parliament to take steps towards making the Supreme Court "institutionally bilingual." Moved by Analea Wayne, president of the CBA's Alberta branch, controversial bill on bilingual judges. the resolution called a Supreme Court composed of judges who can understand both languages an "ultimate ideal" but makes it clear that unilingualism should not be a bar to appointment. "We have requested that steps be taken to have that individual [judges] work towards bilingualism," said Wayne, who pointed to cur- rent Chief Justice Beverley McLachlin, who was a unilingual anglophone at the time of her appointment, to show judges can make the jump. Although the CBA resolution passed council comfortably, a significant minority voted against it. The Barreau du Québec had already offered unconditional support for bill C-232, which put its CBA members in an awkward position. Simon Potter, a Quebec lawyer, said the CBA resolution does not go far enough. "It really amounts to a statement that the way things are done today is perfectly all right," he said, noting that an institutionally bilingual Supreme Court would simply mean those wanting their hearings in French would be heard by fewer judges. Baxter_LT_Splmnt_10.indd 1 2010 top news & newsmakers 13 11/17/10 4:30:28 PM

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