Cases heard by the Supreme Court are argued in both French and English, and draw upon both the civil law and the common law traditions. It is not too much to ask that judges be able to fully understand all the details of the arguments put before them. In spite of this, many people oppose a bill now before the Senate that would make bilingualism a requirement for the job.
Retired justice John Major, for one, says that interpreters allowed him to understand what the lawyers were saying in French. But how could he know? Being unilingual, he was unable to compare the French original and what he heard in his earpiece. Yet, if we attempt the exercise, we quickly realize that interpretation does not render the subtlety and nuance of legal argument.
Lawyer Michel Doucet has learned with consternation that in a case he argued, the interpreter omitted references to relevant legislation, did not render adequately significant elements, and even skipped a whole sentence of his argument.
I argued a case in French before the Court last month and even with good interpreters, some concepts were translated in a way that rendered my argument difficult to understand. (Luckily, none of the seven judges hearing the case used interpretation.)
Moreover, written factums, submitted by the parties before the hearings, are crucial to the judges’ understanding of the case. A judge who is unable to read French will have to rely on summaries because those factums are not translated, as is the case for trial and appeal court judgments. The francophone lawyer is systematically disadvantaged. Let us not return to the era where Quebec lawyers had to speak English before the court if they wanted to be taken seriously.
Federal legislation is enacted in both official languages and both versions have equal status. The canons of interpretation sometimes require that priority be given to the French text over the English one, as in the Daoust (2004) case. How can a judge have the final say on the meaning of federal statutes if he or she is unable to understand their French text?
A unilingual judge will neither be able to read case law from Quebec nor books and articles written in French by law professors. These sources are highly relevant, not only for cases involving Quebec civil law, but also for matters that affect Canada as a whole, such as constitutional law, administrative law, divorce or criminal law. A recent study concerning the period from 1985 to 2004 showed that the Supreme Court relies much more on English journal articles than on those written in French. The presence of unilingual judges on the Supreme Court marginalizes French-speaking academics, who face the dilemma of publishing their work in English or seeing it ignored.
The process of judgment drafting is also affected by the unilingualism of certain judges, who cannot read French drafts, and must wait for the translation to be able to concur or suggest changes, thereby causing increased delays. As a result, of the 114 judgments rendered in 2006 and 2007, eight were entirely, and 13 partly, written in French, which makes for barely 10 per cent of the Court’s work product. In Quebec cases, original judgments are often written in English, sometimes even by French-speaking judges. Where the case originates elsewhere, both francophone and anglophone judges write almost exclusively in English.
Hence, at each step in the process, the presence of unilingual judges to the Supreme Court puts French-speaking lawyers and their clients at a disadvantage, and sends the message that important things take place in English. It makes the Canadian legal system impervious to the important contribution that French-speaking jurists may legitimately bring. This is unacceptable for a national institution entrusted with such an important role.
I have no quarrel with the fact that the most competent jurists should be appointed to the Supreme Court. Yet, reading and understanding French are skills required for the job.
Sébastien Grammond is the dean of Civil Law at the University of Ottawa