Law Times

Page 6 August 22, 2016 • LAw times www.lawtimesnews.com The wrangle over bilingualism J ustice Thomas Cromwell of At- lantic Canada is retiring Sept 1. Another justice is urgently needed for the fall session. Recently, Prime Minister Justin Trudeau sent his cabinet's best legal expert, Justice Minister Jody Wilson- Raybould, to face the Commons Justice committee to explain his government's complicated new process for choosing future Supreme Court judges. Some MPs, notably former Conser- vative justice minister Rob Nicholson of Niagara Falls, worried that the new judge might not come from Atlantic Canada, leaving those four provinces without a single justice on the bench of the highest court in the land. Wilson-Raybould had to admit that under Trudeau's new rules Atlantic Canada might be left out. It all depends on who is chosen, initially by the special advisory committee headed by former prime minister Kim Camp- bell, then ultimately by who Trudeau puts on the bench. By law, Ontario and Quebec are guaranteed three seats each, but there is no similar guarantee for any Atlantic province. Wilson-Raybould said the prime minister cares a great deal about Atlantic Canada getting a seat again on the Supreme Court. If it's so important to him, asked Nich- olson, why didn't he make it a criterion that the new justice coming in to replace Justice Cromwell comes from Atlantic Canada? And, in addition, why did Trudeau resort to sending out letters to newspapers to announce his new system of choosing justices instead of running such a law through Parliament? Why snub MPs? The justice minister re- plied: "Our next appointment to the Supreme Court justice may not be from Atlantic Canada." "That is a mistake," shot back Nichol- son. "You've painted yourself very clearly on that point." The big issue on this day at the com- mittee was language. That's because Trudeau and Wilson-Raybould have been saying that the new justice will have to be "functionally bilingual." Candidates brought forward from Kim Campbell's advisory committee will be "functionally bilingual," Wilson- Raybould told the justice committee. "But what does 'functionally bilin- gual' mean?" asked New Democratic Party leader Thomas Mulcair. Mulcair was getting worked up. It sounded to him like the Liberals were making up a new term to pass off a unilingual judge as bilingual for political reasons. Mul- cair, son of an Irish father and French- Canadian mother, said he has known French and English for years and he's never heard of the term "functional" used in the context of bilingualism. "It's not clear what that means," Mulcair continued. Does it mean speaking both official languages, he asked? The minister tried to duck the question. Finally, she re- plied that "functionally" means the new judge will be able to understand oral and written argu- ments presented in court without the aid of an interpreter. So will it be expected the new judge speaks both languages? Mul- cair insisted. Wilson-Raybould replied that "func- tional bilingualism" means the new jus- tice may not be able to have a conversation in both official languages with a lawyer appearing before the bench. Mulcair said it sounded to him that "functionally bi- lingual" could be used for a judge to claim being bilingual without being able to speak both Canadian official languages. And such a justice certainly wouldn't be helpful to the lawyer talking to the bench. Not being able to speak a second official language isn't bilingualism, Mulcair said. Wilson-Raybould answered back: "The meaning of 'functional bilingual- ism' will be developed in the office of the Federal Judicial Affairs." She added that "an assessment" will be made to "ensure the candidate chosen will be bilingual." Visibly upset, Mulcair snapped back. "So, there's going to be a test?" Wilson-Raybould hesitated and then said: "That's going to be something for the office to determine to be conclusive that the candidate brought forward is functionally bilingual." Then she added, "meaning that the justice has the ability to understand oral and written argument without the aid of an interpreter." So the committee was back where it began earlier and Mulcair, who appeared at least "functionally" upset, appeared worried that the Liberals are trying to pass off a unilingual judge as a bilingual judge. There are indications that what hap- pened at the committee hearing will force the prime minister to come up with something a lot better than a "function- ally bilingual" candidate as his new judi- cial appointment to the Supreme Court. To earn the title "bilingual" a new jus- tice may actually have to be able to speak both English and French. LT uRichard Cleroux is a freelance reporter and columnist on Parliament Hill. His e-mail address is richardcleroux34@gmail.com. COMMENT ©2016 Thomson Reuters Canada Ltd. All rights reserved. No part of this publication may be reprinted or stored in a retrieval system without written per- mission. The opinions expressed in articles are not necessarily those of the publisher. Information presented is compiled from sources believed to be accurate, however, the publisher assumes no responsibility for errors or omissions. Law Times disclaims any warranty as to the accuracy, com - pleteness or currency of the contents of this pub- lication and disclaims all liability in respect of the results of any action taken or not taken in reliance upon information in this publication. 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Access to these parts of the building is gained through the main reception area of the Law Society. The standard procedures call for security staff to ask licensees to show their Law Society identification card. If this card is expired, security staff will check the Law Society's database of licensees to confirm the licensee's status. Once security staff have confirmed the licensee's status, he or she is permitted entry to those areas of the building. It is true that some individuals are not stopped at the main entrance. Staff of the Law Society are not subject to the standard procedures outlined above and move frequently through the controlled access doors without interacting with security. Staff of the Law Society are issued staff identification cards and security passes, which they use to gain entry to controlled access areas of the building directly. Following the occasion of his visit to the Law Society, Mr. Pieters contacted me to express how he experienced the interaction with security staff as one of singling him out and discrimination. The Law Society took Mr. Pieters' concerns very seriously. Mr. Pieters' interaction with the security staff on July 5 and his concerns of discrimination were reviewed in detail. I met with Mr. Pieters to discuss his concerns and the outcome of the review. We very much regret that Mr. Pieters was upset by his experience with the Law Society on July 5. However, I am satisfied that standard procedures were followed and there was no discrimination. Equity and diversity are a priority for the Law Society. Providing respectful and positive service to the public and all licensees who visit Osgoode Hall is also a priority. All staff at the Law Society participate in anti-harass - ment and anti-discrimination training. Staff at the Law Society are also mindful of the face they present to the public and all licensees. Robert Lapper Chief Executive Officer Law Society of Upper Canada Smart v. wise In an age that glorifies Big Data and everything digital, it's rare to hear a lone dissenting voice that advocates for face-to-face contact. But at the recent Canadian Bar Association conference in Ottawa, writer Susan Pinker advocated roundly for the value of connecting in per- son. It enhances our health outcomes and our sense of social connec- tivity in ways digital connection can't, she says. "There's no doubt that this digital world has appeal, but it's not enough for us," she says. That's not to say digital doesn't have a place. This summer, Law Times has run a series of pieces on legal technology — showing the best of what digital connection can offer. For example, Knomos co- founder Adam La France has created an app to increase access to justice. "You wouldn't see this proliferation of apps, or an expanding Ca- nadian legal tech marketplace, if there wasn't a fundamental demand for it," he says. The app will use data visualization to help convey com- plicated legal information to lawyers and clients. I once had the pleasure of hearing modern philosopher Cornel West speak. Let our phones be smart, he said, but let us be wise. Lawyers everywhere can benefit from being both smart techno- logically and professionally wise, with mental judgment and experi- ence they bring to the table for their clients. Let us have the discernment to know the difference. LT The Hill Richard Cleroux

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