Originally published in the Ottawa Citizen, April 26, 2010.
In 1970, Pierre Trudeau, the patron saint of bilingualism, appointed Bora Laskin to the Supreme Court of Canada. Laskin's work was stellar. In 1973, Trudeau made him chief justice. In the years that followed, the Laskin court made a series of historic judgements which helped define the modern legal landscape. Laskin died in 1984. Today, he is a legend.
Bora Laskin could not speak French. If a bill now before the Senate that would make bilingualism a mandatory qualification for appointment to the Supreme Court had been in force in 1970, he would have been automatically disqualified.
I could fill the rest of this column with similar stories. There's Brian Dickson, for example, Laskin's successor as chief justice. Pierre Trudeau appointed him to the Supreme Court in 1973. In 1984, Trudeau promoted him to chief justice. Like Laskin, Dickson was not bilingual and he would have been disqualified by the bill now before the Senate.
Shall I go on?
In 1982, Pierre Trudeau appointed Bertha Wilson to the Supreme Court. Wilson could not speak French and so she would have been barred from becoming the first woman ever appointed to that august institution, just as Laskin would have been barred from being the first Jew appointed to the court.
I should note that it's difficult to determine who was and wasn't bilingual, or to what extent. For this column, I am relying on the judgement of retired Supreme Court justice John Major, who said that while Laskin, Dickson, and Wilson may have been able to speak a little French that was "laboured, fractured, and painful," they were, for present purposes, unilingual.
They were far from alone. Major estimates, of the judges who sat on the Supreme Court over the last several decades, perhaps 20 per cent were fully fluent in French and English. Thus, the bill now before the Senate would have barred four out of five judges appointed to the court since Pierre Trudeau created the Official Languages Act, including Major himself.
The advocates of the bill will object that this is misleading because eight of the nine judges currently on the court are bilingual. But that is itself misleading, Major insists. Only three judges are so fluent they can work in either language without an interpreter, as the bill demands. The other six would have been disqualified. And perhaps more than that. As I wrote in an earlier column, Chief Justice Beverley McLachlin's oral fluency in French was only "moderate" when she was appointed to the court, although, thanks to years of study and working in a bilingual environment, she is now fully fluent.
Inevitably, a mandatory bilingualism qualification will drastically shrink an already-tiny recruitment pool. Or rather "pools." By law, three seats on the Supreme Court are reserved for judges from Quebec. The other six come from English Canada, with three traditionally coming from Ontario, two from the West, and one from Atlantic Canada. No one can seriously deny that making bilingualism mandatory will not exclude most of the contenders for these seats, and it's hard to see how that will not diminish the quality of appointees.
So there's a big cost attached to the bill. What's the benefit? Well, supporters vaguely refer to the possibility that a unilingual judge listening to an oral argument with the help of an interpreter might miss certain nuances and this might materially affect the outcome somehow or other. Hypothetically speaking. Mind you, they've never cited any instance of this ever happening. And John Major says nothing like that happened in his 14 years on the bench, or at any other time as far as he knows.
So to sum up, this bill would inflict a great practical cost on the court for essentially no practical gain.
Ah, but then there is the symbolism. "Through a mélange of symbolism and practicality, we have discovered ourselves and continue to do so," Grégoire Webber effused in these pages. "Canada is a project in the making. When we lament bilingualism rather than celebrate it as part of our achievement, we look to be less than we are." Hence, unilingual candidates must be disqualified.
As poetry, that's lovely. As policy, it's gibberish.
No one disputes that bilingualism is a major asset. It is. Bilingualism weighs heavily in any appointment, as it should. Nor does anyone dispute that French and English have equal legal status. The Supreme Court employs a small army of translators and interpreters.
And the court functions just fine. It is admired abroad and respected at home, and I very much doubt that many of those who now talk as if it is self-evidently appalling that a unilingual Anglophone should sit on the bench ever criticized the court's composition or its decisions before this controversy came along.
What is disputed is the claim any person who is not bilingual is unfit to be a Supreme Court judge regardless of any other qualifications that person may have. By that standard, most current and former Supreme Court judges are unfit and even giants like Bora Laskin should be considered mistakes who slipped through in an earlier, less-enlightened age -- the age of Pierre Trudeau.