Should bilingualism - real bilingualism, we mean, true fluency in both English and French - be a requirement for membership on the Supreme Court of Canada? At first glance, the idea has some appeal. But in practice, although true bilingualism will we believe become the norm for our high court, imposing a formal rule to that effect would be a mistake. (...) Godin, a New Brunswick francophone, is the author of a private member's bill to require that nominees to Canada's highest court be so bilingual that they do not require a translator or interpreter.A formal rule imposing "true bilingualism", requiring nominees "be so bilingual that they do not require a translator or interpreter"? Gee, it's lucky THAT'S NOT WHAT C-232 SAYS!!!! As previously stated: "Carpay & the Gazette should work on their first language skills before raving incoherently about bilingualism. As pointed out by Yalden already, C-232 does NOT require fluency in both Official Languages"
I know the real reason behind the Gazoo's silliness, they give the game away with their "coercion" line. They are making a link between this and linguistic coercion in QC. But they could not be more wrong, philosophically, they've got it backwards, as the federation's enemies well know - the logic of bilingualism is one of greater Canadian integration, it is part of a nation-building project that not just was enormously successful, but remains so, in the hearts and minds of the vast majority of Quebeckers and Canadians, despite all of QC nationalism's and other provinces' parochialism. It is the only game in town. It is why separatists have always put so much effort into trying to make it uncool, or passé, or most cleverly, a noble effort, doomed to defeat (very Economist rhetoric that - can't say they didn't learn from the best propagandists). But to their frustration, and those of the small-minded and narrow-hearted coast to coast to coast, it remains the one viable project in this geopolitical space.
The cost benefit of separation, with the enormous dislocations involved, is almost incalculably negative, and the dynamic effects as far as increased assimilation for all involved, to American English and culture, are even worse, and that is as true now as it was for Lafontaine & Baldwin, Cartier & Macdonald. Canada is an act of will, yes, BUT SO IS EVERY SOCIETY, EVERY PROJECT. We've made this place work remarkably well since 1774, we're one of the oldest democracies, with only maybe Switzerland and UK as our competition (we basically had universal male suffrage by 1850, without slavery - who else did?). There are two other options. Go "Belgian" - and end up with a completely dysfunctional state, leading to separation, de facto, and then de jure. Or skip straight to separation - and as noted, that would be a disaster, comparatively.
The federal bilingual logic is unavoidable. This law would provide a small boost for the incredible success of Trudeau-Marchand-Pelletier's oeuvre, which was so damn hard-fought. So exhausting, that while efforts have been continued by their successors, the next stage, as with medicare, remains to be achieved. Graham Fraser's proposals re. education (notably post-secondary) are essential in that regard. Honestly, how can anyone graduate with a degree in the social sciences in Canada, notably history, poli sci & sociology, and not be at least passively bilingual, ie. able to understand the other official language (read & listen)?
So the Gazoo has seemingly not read the actual bill, and strangely contradicts itself on a raft of previous editorials as regards bilingualism, all out of concern for philosophically supporting coercive language legislation, with Bill 101 in the back of their minds. But C-232, and the logic of bilingualism, is of course the philosophy which best safeguards linguistic communities and represents the nation-building project so feared and hated by separatists and the worst of the narrow-minded and short-sighted nationalists. The Gazoo's position is in fact one that would best please the heart of a Péquiste. "Durham here and Durham there" is their logic. Any sentient, liberal humanist should reply, "no, Bald-Laf-Mac-Cart-Trudeau, everywhere".
Now, for the Tenth Time, your education, via Senator Chaput, notably:
It is scarcely necessary to remind my honourable colleagues, assembled here in this noble chamber, that our Constitution says clearly and unequivocally that French and English "have equality of status and equal rights and privileges as to their use in all institutions of the Parliament and government of Canada."
Our Constitution also provides that real equality between English and French must be advanced, and that Parliament has the powers necessary to do so. We are still far from the laudable goal of true equality. The passage of Bill C-232 would constitute a giant step toward this ideal that we have set for ourselves.
The justices on Canada's Supreme Court are called upon to hear cases in both official languages and to apply the principles of law arising from our two great and separate legal traditions. The court's decisions are final and without appeal, and their consequences are often of the utmost importance.
[English]
How would one explain to a francophone appearing before the court that his or her case was going to be heard by justices who did not understand his or her chosen official language? What if an English-speaking Canadian were required to plead before justices who spoke nothing but French? It seems obvious to me that the second situation would be just as unacceptable as the first one.
[Translation]
Bill C-232 is designed to keep us heading in the right direction. It is based upon the principles of natural justice. The right to be heard constitutes the cornerstone of our justice system. How can someone really be heard if he cannot really be understood?
The Department of Justice explains in one of its publications that:
. . . because of the official bilingualism within the federal jurisdiction and the coexistence of two legal systems in the country, there are four audiences for the law in Canada . . . anglophones and francophones subject to the civil law, on the one hand, and anglophones and francophones subject to the common law, on the other hand.
The nine justices who sit on our country's highest court should at least be able to understand, without an interpreter, counsel from all of these four audiences. In my view, this is the bare minimum.
[English]
Let us be very clear: The bill we are discussing does not aim to impose on our future Supreme Court justices a requirement that they speak both official languages fluently. Perfect bilingualism is not the criteria. What is demanded is the ability to understand the other language without an interpreter. This is a distinction worth making.
[Translation]
In a decision by the Manitoba Court of Appeal in 1984, quoted by the Supreme Court of Canada and dealing with the language skills required for a judge to hear a case, Chief Justice Monnin explained that knowledge of a language has four levels: understanding of the written language, understanding of the spoken language, ability to speak the language, and ability to write the language.
According to Chief Justice Monnin, it is not necessary for judges to achieve the third or fourth levels, but it is indispensable that they understand the language, and I quote:
No burden must be put upon those who ask for a trial in French nor should the evidence of witnesses using one or the other of the two constitutionally recognized languages have to be sifted for the trier of facts through the mind and mouth of an interpreter.
This reasoning applies even more strongly when a matter is before the court of last resort, the highest court in the land.
The Canadian Charter of Rights and Freedoms provides that the English and French versions of Canada's statutes "are equally authoritative." This means that there is not one version that takes precedence over the other; there is not an original and a translation; but rather there is just one law, drafted in English and in French, which must be interpreted on the basis of Canadian bilingualism and bijuralism.
Both language versions of Canadian statutes "are equally authoritative." A diligent judge will thus, in order to fully understand the significance of certain provisions, have to read both the French and the English versions, because the two form a single whole.
The two versions of a law may complement each other or clash with each other; in a way, the two versions are a dialogue. An understanding of both of Canada's official languages is thus a sine qua non for a full understanding of the country's laws.
This "equal authenticity rule" applicable to federal legislative texts was formulated by the Supreme Court for the first time in 1891, in C.P.R. v. Robinson, and I quote:
In the case of ambiguity, where there is any possibility to reconcile the two, one must be interpreted by the other. The English version cannot be read out of the law. It was submitted to the legislature, enacted and sanctioned simultaneously with the French one, and is law just as much as the French one.
It was confirmed by the Quebec Court of Appeal that "Canadian courts have not only the right but also the obligation to take into account both official texts and use them to interpret each other." The same obligation is incumbent upon our court of final instance, and with still more reason.
Graham Fraser, the Commissioner of Official Languages, said recently:
. . . when someone comes forward and says . . . about a candidate [for the Supreme Court], that he is very competent, that he has all of this experience, but he doesn't have the ability to hear a case that's presented before the Supreme Court in the language in which that case is presented, then he is missing a critical competence.
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