Law Times

Law Times • November 26, 2012 Nicholson's letter gets it wrong on bilingual judges The Hill COMMENT T bilingualism and Court judges who speak and understand both of our offi cial languages. Our Constitution is very clear that ev- hree weeks ago, a strange letter ap- peared in the news in Ottawa that revealed a great deal about the way the federal government feels about appointing Supreme eryone has the right to be heard in either offi cial language before the Supreme Court of Canada. It sounds simple but it isn't. Th e fathers olson and his boss, Prime Min- ister Stephen Harper, had no hesitation in appointing two uni- lingual Supreme Court judges in recent years. No alarm bells went off in It at least explains why Nich- of Confederation made a mistake. Nowhere does the Constitution say that people ap- pearing before the Supreme Court have the right to be understood by the judges as well as being heard in either offi cial language. And that's what a mysterious three-page letter dating back to 2011 by Justice Minister Rob Nicholson is all about. Nicholson believes the nine judges of the of the access to information law. We don't know who Nicholson wrote the Supreme Court don't all have to understand both offi cial languages. Th e letter came to us through the merits letter to because the name of the recipient is blacked out. But we do know what the letter says. Nicholson wrote that in choosing judges, their ability to understand fi rst-hand what they're hearing in court should never be more important than their merit or their ability to get along with colleagues. It boggles the mind how this twisted their heads. Th at's what makes it all the more puzzling. Aſt er all, Harper is the prime minister who shocked the nation by launching into a French-only speech on TV the day he fi rst took offi ce in 2006. Harper later explained that from now on, speaking Canadian s outside Quebec don't matter is as insult- ing as telling Quebec's anglo- phones they should look to the rest of Canada for representation on the Supreme Court bench. Try selling that notion in Th e notion that French- Richard Cleroux he would always begin his political speeches in French because it's the fi rst language of Canadian history and was spoken before English arrived on our shores. But like so many other Harper prom- ises, French was only fi rst in his heart for a short while. Nowadays it's not clear where French resides but it's certainly not a mandatory factor when it comes to choosing Supreme Court judges. In his letter, Nicholson writes that Westmount, Nicholson. Since when did Canada cease son dredged up the old Reform party plat- form on offi cial languages. But Nicholson plunges deeper into the to be a bilingual country across the land? It sounds like Nichol- mud. He writes that the "overriding consid- eration for all judicial appointments, includ- ing those to the Supreme Court of Canada, is merit, based on legal excellence and per- sonal suitability." Would merit not include judges under- quately is the fact that the road to a Supreme Court ruling usually starts with a closed- door meeting of the judges discussing a case they've heard. Th ey sit around bouncing erudite ju- What Nicholson doesn't address ade- dicial views off each other in order to fi nd out if there's agreement and if not, where they stand. Th is is no time to be trying to translate nuances in order to explain com- plex legal points and interpretations. It's of immense help if they can understand each other without translation. Canada is a bilingual country. If the PAGE 7 court is there to serve a bilingual Canadian society rather than merely providing jobs for English-speaking lawyers and judges, then the answer should be simple. Th ere's no shortage of bilingual judges French is to be represented on the bench of the Supreme Court by three judges from Quebec. It's as if French was spo- ken solely in Quebec and that 1.5 million French-speaking Canadians in the rest of Canada have to look to Quebec for representation on the bench. But let's leave aside Nicholson's thoughts kind of logic could come out of the mind of a cabinet minister in charge of helping choose the bench of the Supreme Court. on mandatory bilingualism on the bench of the Supreme Court. Aſt er all, the highest court in the land is there to serve all citizens of a bilingual nation, not to provide jobs for English-only judges and lawyers. standing what's being said in court without the help of translators telling them what they think is being said? In 2010, retired Supreme Court justice John Major spoke out strongly against the need to have bilingual justices on the bench of the Supreme Court. A patient lying on an operating table likely doesn't care if the sur- geon can speak both French and English, Major said. It's a smart comparison, but one could also argue that the same patient might care if the surgeon has to work through a trans- lator to get the proper scalpel from a nurse. It's as helpful to know exactly what's being said in the courtroom as it is in an operat- ing room. and lawyers in this country. While it used to be said that there weren't enough good bilingual lawyers and judges out West to fi ll four spots on the Supreme Court bench, don't try telling that to Chief Justice Beverley McLachlin. She's from Alberta and is every bit as bilingual as anybody on the bench from Quebec or bilingual New Brunswick. Nicholson's letter came out two weeks ago. He hasn't seen fi t since then to either apologize to our bilingual judges or ex- plain why the nine people on the Supreme Court bench shouldn't have to fully re- fl ect the society they serve. LT Richard Cleroux is a freelance reporter and columnist on Parliament Hill. His e-mail ad- dress is richardcleroux@rogers.com. R BY DORON GOLD For Law Times Why do lawyers insist upon torturing themselves? u SPEAKER'S CORNER support. Th e stated rationale underpinning his deferral of relief centred upon his multipronged belief that, fi rst, as a lawyer, he fi xes problems and doesn't have them and that if he does, he doesn't share them with others. Sec- ond, lawyers don't show weakness, as he called it, but in- stead surmount it. Th ird, he' ecently, a new client of mine described to me how he had spent more than four agonizing hours staring at our telephone number, debat- ing whether or not he should call for help and ing in his current state and imagines that others would judge him even more harshly than he judges himself. Over the past few years in my work helping lawyers, s ashamed of himself for be- judges, and law students in distress, I've observed a recur- ring phenomenon that, at a distance, has always seemed gratuitously self-abusive. Permit me to illustrate the point with an anecdote. I once participated in a weeklong lead- ership retreat in which a group of successful individuals took part in various leadership activities. Th ey included a ropes course on which participants confront their fears by climbing to ungodly heights and walking across thin ropes bound between impressively tall trees. One of my co-participants, a business executive with a spectacular intellect and kind heart, was especially nervous about undertaking the task at hand. With the encouragement of the rest of us, many of whom felt just as terrifi ed as she appeared to be, this lovely woman donned her harness, clipped into the belay, and began climbing the ladder leading to the top of the tree step by agonizing step. Several rungs up, she froze. Th ere she stood, unable were proud of her and hoped she was proud of herself. She wasn't. During our debriefi ng session the follow- ing day, we learned of the inner agony this event induced in her. Aſt er some cajoling, she opened up and told us of how, as a child, she would endeavour to protect her younger siblings from an abusive babysitter by drawing attention to herself. Th is led to her being hung, feet fi rst, by this tormentor from the balcony of their high-rise apartment. It happened more than once. Heights not only terrifi ed her throughout her life, they reminded her of childhood trauma she hadn't recovered from no mat- ter how professionally successful she had become. Th is horrifi c story would be pain enough for any per- son. However, as she proceeded to tell us, the previous day when she descended from the tree and walked off to be on her own, she didn't hear our congratulations or expressions of admiration. All she heard were internal voices of condemnation. Th ese voices savaged her for being weak, not being able to overcome her traumatic history, and embarrassing herself in front of others. She judged herself mercilessly. It was at that moment that I realized that people layer we're not skilled or resilient enough to overcome. My experience confi rms for me that lawyers, despite pro- tests to the contrary, are, in fact, human and that those who are able to accept their humanness live much more balanced lives. Whatever life throws at you, al- lowing yourself to feel and process the feelings that accompany those hardships helps you cope with and ultimately get past them. Resisting human frailties, on the other hand, leads to self-loathing and anxiety. And yet over and over again, I observe legal pro- failing. We observe our colleagues who all seem so pulled together and assume, therefore, that our suff ering is an anomaly in our community and that, as such, we have a particular weakness that fessionals avoiding asking for help and instead they carry their pain alone while devolving into a morass of self-judgment and ever more agonizing distress. It' unnecessary. Help for mood disorders such as depres- sion and anxiety or for addictions such as alcoholism is readily available and demonstrably eff ective. Diabetics wouldn't judge themselves as weak for s to speak or move for six minutes, as her endlessly posi- tive colleagues egged her on and showered her with praise and encouragement. Finally, she began to de- scend and upon reaching the safety of the ground, she retreated to a corner of the campgrounds where she could sit alone. Everyone was impressed by her eff ort and didn't for one moment judge her for her inability to do more than she was able to do in that moment. We pain upon pain. Th ey not only suff er with actual trau- ma or distress but they add to it an additional dose of self-judgment for having it in the fi rst place. Th ey judge themselves to be weak and worthy of scorn for not get- ting over what happened to them. I would later come to learn in my work with legal professionals that this phenomenon is even more acute among that cohort. As with the woman I described, my immediate reaction to clients who judge themselves for their own distress comes from compassion, not condemnation. But for many lawyers, the latter reaction predominates, at least as it relates to their view of themselves. Suff ering is part of the human condition. Th is may www.lawtimesnews.com having to take insulin. Th ey manage their disease. Yet these other conditions are easier to write off as char- acter fl aws. You don't manage a character fl aw; you correct it. Lawyers who struggle with these conditions don't need correction. In addition to treatment, they need compassion, empathy, and kindness. And they need those things from themselves fi rst. If you won't be kind to yourself, who will? So for those who fi nd themselves staring at the telephone number of a helping resource, whether it's a friend, doctor, psychotherapist or lawyer assistance program , put down the mallet you've been hitting yourself over the head with and pick up the phone. Ex- tending your suff ering isn't noble or moral; it' prolonging the time it takes for you to recover. And rest assured that with help, you will recover. seem painfully trite to say, but in the legal community, we too oſt en view having human vulnerabilities as a s simply LT Doron Gold is a case manager at the Ontario Lawyers' Assistance Program. He' former practising lawyer. s a registered social worker and

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