Law Times

Law Times • June 15, 2009 Fight over bilingual Supreme Court T he other day Supreme Court Chief Justice Bever- ley McLachlin interrupted a lawyer rattling along at high speed in French. "Would you please slow down a bit because Justice Marshall Roth- stein may have trouble grasping what you are saying," she said. Somewhat blunt for the chief justice, but she was bang on. Rothstein doesn't speak French. He is the only one of the nine Supreme Court justices who is not bilingual. Th e Constitution guarantees the right of everyone to use English or French in the Supreme Court, but nowhere does it guarantee the right to be understood in either of those languages. Call it an oversight by the Fathers of Confederation, who were meticu- lous about everything else dealing with the court, even down to the ex- act number of judges we should have from each region of the country. Prime Minister Stephen Harper knew about Rothstein when he ap- pointed him to the Supreme Court bench March 1, 2006. It was the fi rst Harper appointment to the court. But Rothstein, who is an able jurist, had the blessing of then-justice min- ister Vic Toews, his former law stu- dent at the University of Manitoba. Rothstein promised to learn French, but at age 69, learning an- other language is not easy. Th e Su- preme Court justices have not gone public with their complaints, but reports leaking out reveal Rothstein's English-only has been a problem for the bench, especially when all nine judges are hearing a case in French. Translation doesn't cut it. Leav- ing the bench with an even-num- bered eight judges is an invitation to a hung bench. When the judges get together in the backroom to discuss legal issues and work on verdicts, his pals trans- late for him. It's makeshift at best. Th e word must have reached Harper. His second appointment was the fully bilingual Th omas Cromwell of Nova Scotia, appoint- ed Feb. 16. No problem at all. Finding a bilingual judge with Supreme Court qualifi cations used to be a problem. Not now. Not in a country of 33 million people with lawyers and judges at every street corner. Th ey used to say they couldn't fi nd a woman with qualifi cations. And then they said they couldn't fi nd an Anglophone who could speak French. Th at was then. Now they've found women, and plenty of bilingual Anglo- phones. If you look, you'll fi nd. Buoyed by this changing world, Acadian New Democrat MP Yvon Godin presented a private bill in the Commons requiring all future Supreme Court appointments to be bilingual. He had no idea of the furor that would ensue. Th e Canadian Bar Association, various provincial bar associations, and of course, the Offi cial Languag- es Commissioner Graham Fraser, all came out in favour of a mandatory bilingual Supreme Court bench. Strangely, many Conservative MPs held back, not taking sides, even The Hill By Richard Cleroux though Harper said it would be a free vote for his backbenchers. Finally the Godin legislation came to a vote in second reading this month. Very good. Everybody likes free votes — like apple pie. But to everyone's surprise all the Conservatives began voting in a bloc against bilingual Supreme Court judges, even the Conserva- tives who are always saying how much they believe in bilingualism, and practise it as much as they can in the Commons every day. Could bilingualism be great for the Commons, but bad for the Supreme Court? In the Opposition benches, they went the other way. Even hide- bound, English-only MPs voted in for bilingual judges. Over in the French-only Bloc Québécois, MPs who would rath- er swallow a bucket of rusty nails than speak English voted to make sure future Quebec appointments to the bench must speak English. Wedge politics at its best. Th e Commons was splitting as usual. Th en something ugly happened. Angry Opposition MPs began boo- ing Quebec Conservative MPs one by one as they stood up to vote, mocking them and their leader who had promised a free vote. Ontario Francophone Conserva- tive MPs who are all fully bilingual — Guy Lauzon, Pierre Lemieux, and Royal Galipeau — came un- der verbal abuse. It was a puzzler. Had B.C. Conservative MP James Moore, who owes his job as Heri- tage minister to his exceptional fl u- ency in French, decided bilingual- ism was not so important after all? What about MP Shelly Glover of Saint-Boniface? Or Harper himself, who always makes a point of speak- ing in both languages? After all, Harper had gone out of his way to appoint Cromwell. But ours is a minority Parlia- the Conservatives ment and so were defeated 140 to 133 by the combined Opposition parties. Likely the third and fi nal vote won't come until the fall session. Strangely, Liberal Leader Michael Ignatieff waited until last week to make a public statement, fi nally promising outside the Commons that as prime minister he would insist on bilingual Supreme Court justices. "Yes, bilingual judges," he re- peated. "I thought about it a lot. Th e Supreme Court is a national institution and its legitimacy is in doubt if it is not bilingual." Meanwhile, a considerable back- lash has arisen in those ridings with large bilingual populations against Conservative MPs who voted against bilingual judges. LT Richard Cleroux is a freelance reporter and columnist on Parliament Hill. His e-mail address is richardcleroux @rogers.com. www.lawtimesnews.com S COMMENT What's a white-shoe lawyer anyway? ome months ago the New Yorker's Jane Kramer profi led Toronto's world-renowned food writers Nao- mi Duguid and Jeff rey Alford. Duguid used to practise law in Toronto. A "bril- liant lawyer," Kramer reports, but, "With no interest in a white-shoe practice." She declined a partnership to travel the world writing about food and culture. Here I had to back up a second. A "white- shoe" practice? For all the New Yorker's re- nown in fact-checking, surely Kramer got the nuance of Canadian usage wrong. White of law and refused to hire for talent rather than social connection. But those fi rms are pretty much ex- That's shoe is not a term much used here to clas- sify lawyers or law fi rms. I felt a perverse pride: mysterious Canada, not so easily penetrated by brash outsiders. In fact, it seems "white-shoe fi rm" doesn't mean much of anything anymore, even in its Manhattan home. Th e kind of fi rm they used to signify simply isn't there anymore. And the shoes aren't either. In 1997 the National Law Journal declared it would cease using the term. Th e consensus among legal etymolo- gists seems to be that the phrase itself is not that old in New York City usage. No one has cited an example much more than 50 years old. "White shoe" evidently refers specifi cally to the Princeton and Ivy League undergraduate fashion, circa 1950, of wearing the suede-leather and red-rubber-sole shoes called white bucks. It's been argued that the white-shoe im- age has an older ancestor: the boat shoe, worn by businessmen who moored their yachts just steps from Wall Street and might turn up in an Edith Wharton novel. But no one has yet cited examples of that usage, whereas there's J.D. Salinger writing in Franny and Zooey in 1957: "Phooey, I say, on all white-shoe college boys." In Manhattan by the 1950s, a white- shoe fi rm meant one that would hire those white-shoe college boys. Th ese were law fi rms and brokerages that hired exclu- sively from Ivy League schools, fi rms that were ancient, conservative, WASPy, and dependent on old-money, trust-fund ba- bies both as clients and as new recruits. In Manhattan business circles, white shoe had two implications. It meant a fi rm that took wealth for granted, valued family and status above all, cultivated a certain leisured attitude to work, and was reluctant to do seedy kinds of law like in- solvency or hostile takeovers. It also meant: no Jews. It's easy enough to fi nd New York law fi rms that came up that way, fi rms that were once too well-bred for most kinds History By Christopher Moore tinct. Well before the Wall Street melt- down of 2008, white shoe had become mostly a term of abuse, intended to sug- gest one's own fi rm was not like some al- legedly smug and outdated rival. In Canada the terminology (and the undergraduate white- shoe fashion behind it) never took hold. But high-society, low-talent partners in prestigious downtown law fi rms? Th ere may have been a few of those here. Senator John Godfrey, who helped build a Bay Street powerhouse that is now part of Fasken Martineau DuMoulin LLP, wrote of joining its predecessor in the 1940s and fi nding one well-to-do partner with "feet on the desk all day" and another who "knew no law, useless." George Finlayson recalled that when he joined McCarthy Tétrault LLP in 1950, all its new recruits, himself included, were hired on family connections. Ian Kyer has written of a name partner in the Toronto fi rm Beatty and Blackstock, circa 1900, who spent most of his time on genealogy of the FOOFs (fi ne old Ontario families) and on eff orts to build a new An- glican cathedral in Toronto. And one well- paid scion of the Blake legal clan apparent- ly kept busy at his fi rm translating Maria Chapdelaine and other literary works. Th at kind of fi rm culture, in Toronto as in New York, was dead among Bay Street fi rms before Naomi Duguid began practising law around 1980 (though). Big corporate law fi rms had learned they had better put in the hours and recruit for tal- ent over connections. Even the no-Jews, no-women culture was disappearing. Still, perhaps something of the white- shoe imagery lingers, even in Toronto. Th e fi rm Naomi Duguid left in favour of food writing was Sack Charney, now Sack Goldblatt Mitchell LLP. White shoe? A distinguished fi rm, but self-described as principally a labour-side labour law fi rm. As one lawyer said to me, not unkindly but fi rm on the distinction, "Th ey are not Cravath." Evidently it is always some other fi rm that might be sneered at or envied as white shoe. But something of the concept endures. LT Christopher Moore's most recent book is Mc Carthy Tétrault: Building Canada's Pre- mier Law Firm, published by Douglas & McIntyre. His web site is www.christopher moore.ca. PAGE 7

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