Thursday, May 06, 2010

The Argument for a Bilingual Supreme Court of Canada

Jean Leclair, professor of constitutional law at the Université de Montréal, delivers a forceful argument in today's Montreal Gazette in favour of legislation, currently before the Senate, requiring that future Supreme Court of Canada appointees be functionally bilingual:

Bilingualism for Supreme Court justices is necessary not just from a symbolic standpoint; it is an issue of competence.

Not only does a unilingual English judge lack direct access to scholarship or decisions written in French, but more importantly, the Constitution itself expressly states that both the French and English versions of federal legislation have official status. As a consequence, to interpret an ambiguous federal provision, judges must be knowledgeable in both languages since "a principle of bilingual statutory interpretation holds that where one version is ambiguous and the other is clear and unequivocal, the common meaning of the two versions would a-priori be preferred" (Daoust, 2004 SCC 6).

...If unilingual anglophones are to be appointed to the Supreme Court, cut the competence nonsense. Just tell us that French is not an important asset for potential appointees. This would come as no surprise to Quebec jurists as Canada is the only multilingual federation where one - outside Quebec - can be hired to teach constitutional law without being able to read, let alone understand, the literature written in both official languages.

While Professor Leclair's flippant dismissal of the "compentency argument" as nonsense is not particularly convincing, the balance of his position provides a strong articulatation of the statutory interpretation aspect of the pro-bilingualism argument.

I am not sure, however, how frequently the Court's determination of a matter will depend on resolving the kinds of linguistic ambiguities Professor Leclair cites as decisive in this debate.

It would be a significant stretch, in my view, to elevate that occasional interpretive chore to the level of deal-breaker, at the expense of all other considerations, in selection of the most qualified judges for Canada's highest court.

- Garry J. Wise, Toronto

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