Published by Senator Claudette Tardif on 26 April 2010
Linguistic duality is an intrinsic part of our Canadian identity and values. Bill C-232 aims to amend the Supreme Court Act by adding an additional requirement in the selection of Supreme Court judges: that of understanding both official languages without the assistance of an interpreter.
Many political pundits have argued that we would sacrifice judicial competence by requiring linguistic abilities, and that we would reduce the pool of qualified candidates for the top positions at the highest court in Canada. However, I believe that these arguments are ill-founded and based on misinformation regarding the intent of the bill.
The purpose of this bill is to ensure justice and equality for all citizens who choose to have their case pleaded in the official language of their choice before the Supreme Court of Canada. The Charter of Rights and Freedoms already guarantees the right to use the official language of one’s choice in courts established by Parliament. The Official Languages Act further guarantees that parties may be heard and understood without the assistance of interpretation by all Federal Courts. There is, however, one exception: the Supreme Court.
It is critical for Supreme Court judges to fully understand the subtleties and nuances of counsel’s arguments. Based on his own personal experience at the Supreme Court, attorney Michel Doucet stated in a parliamentary committee studying this bill that “when you lose a case in a five to four decision, as happened to me at one point, and you’ve pleaded that case in French, . . . you wonder about what they understood. I listened to the English interpretation of my argument, and I understood none of it.”
I have great admiration for interpreters and translators, who have a very difficult job with stringent time constraints. However, at the Supreme Court of Canada, the highest court of the land where there is no possibility of appeal, interpretation introduces a margin of error and a counsel’s case could be damaged.
It is also important to note that the laws of Canada are written jointly in French and in English. No version has precedence on the other. No version is the translation of the other. A judge who understands both official languages will possess the required skills to understand the nuances of both the French and the English versions.
Some commentators have also argued that it would be difficult to acquire sufficient linguistic skills in both official languages to be able to understand legal arguments without interpretation. This argument fails to take into account Canada’s evolving reality. Canadian Parents for French estimate that there are currently 300,000 students enrolled in French immersion programs across the country. Some of our top law faculties are already teaching in both official languages.
As Professor Grégoire Webber of the London School of Economics noted: “understanding a case directly, unaided by interpretation, is part of the legal competency we expect of a judge.” The interpretation of law is not simply about knowing jurisprudence; it is about understanding what is said and what is meant. Similarly, being a judge is not a right. Judges are at the service of Canada and its population. It is not sufficient to rely entirely on an intermediary to understand arguments that will ultimately lead to a decision that is not appealable.
We expect the prime minister of Canada to be bilingual. Why then is it not expected that Supreme Court judges, at the very least, understand Canada’s two official languages without interpretation?
Canadian citizens not only have the right to be heard in the official language of their choice, they should also have the right to be understood.
Senator Claudette Tardif (Alberta) is deputy leader of the opposition in the Senate and the sponsor in that chamber of Bill C-232, an Act to Amend the Supreme Court Act.