The arguments about limiting appointments to the Supreme Court to bilingual candidates are rather tired, not to mention more or less moot. But they keep coming back, over and over again. I actually wrote about the topic a while ago, but since it is in the news again, following the appointment of (the apparently bilingual) Justice Brown, and since not all of my readers are bilingual themselves, it might be worth returning to.
The first thing to say here is that, as I have already noted, the Supreme Court’s opinion in l’Affaire Nadon, 2014 SCC 21,  1 S.C.R. 433 means that any legislation to add bilingualism to the list of requirements for Supreme Court appointments would be unconstitutional. The criteria, as they now exist, have been set in stone by the Court’s conclusion that they are part of the “Constitution of Canada,” and more specifically of the “composition of the Supreme Court of Canada.” It would take a constitutional amendment supported by every province to change them.
Of course, that does not make it impossible, or necessarily wrong, for a Prime Minister from making it his policy, even publicly declared policy, to only appoint bilingual candidates. Indeed, there is nothing to prevent such practice, if continued long enough (and by more than one Prime Minister), from becoming a constitutional convention. So the question whether instituting such a practice, and trying to foster such a convention, would be a good idea.
The argument in favour of requiring bilingualism is that it is imperative that a judge be able to understand the parties appearing before him or her. To be sure, the Supreme Court has a translation service, including simultaneous translation at the hearings, but that’s not good enough. Translators can make mistakes, and when the fate of a litigant, and sometimes even of the country, is at stake, it is unconscionable to allow the outcome of a case be affected by such things. This seems compelling enough, until we start asking more precisely what it is that the proponents of mandatory bilingualism want, how they plan to achieve it, and what the cost of doing so would be.
It is good and well to say that a judge must understand those who appear before him, but what level of understanding is enough? Is fluency mandatory, or is a lesser level of proficiency sufficient? Grégoire Webber, perhaps the only person I have seen address this question, says “legal competency in language is satisfied by understanding a case without the aid of an interpreter” ― a standard that strikes me as very vague. A person might think that he or she does not need the assistance of an interpreter, and yet be mistaken about this, or at least end up with a worse understanding of the case than if he or she had relied on an interpreter.
Partly for this reason, it matters how we are going to determine whether a judge meets bilingualism requirements, whatever they are. Will we rely on an appointee’s say-so, or are we going to have them take the civil servants’ exams? Is having a judge take an exam, especially one where evaluation is in part discretionary, and where so much is at stake, ever a good idea? Can it be squared with judicial independence? At the very least, those who clamour for bilingualism requirements owe us answers to these questions. They have seldom, if ever, given any.
However, even if these questions could be answered in a satisfactory fashion, a policy of mandatory bilingualism would come with significant downsides. Fears, such as those of the National Post’s editorial board, that it would become well-nigh impossible to appoint judges from the non-bilingual parts of the country are clearly overblown (as the appointment of Justice Brown seems to demonstrate). But it is true that the pool of eligible candidates would become a good deal shallower than it now is. Among the current judges, the Chief Justice and Justice Moldaver (as well as Justice Rothstein, whom Justice Brown will replace) could not have been appointed under a mandatory bilingualism rule. I think this has to be acknowledged as a clear loss. Both the Chief Justice and Justice Moldaver made efforts to learn French since their appointments, by the way ― the Chief Justice, at least, with considerable success, so much that she is now generally regarded as bilingual. Still, it is a mistake to forget that she was not bilingual when she was first appointed. And more generally, as I said in my earlier post on the subject, to the extent that a unilingual candidate is regarded as better qualified than a bilingual one, is there not an injustice involved ― an injustice to all the litigants who will appear before the court ― in not appointing him or her?
Prof. Webber argues that linguistic competency is an aspect of legal competency, and that there is therefore a loss of quality involved in appointing unilingual judges. I agree with that. If I were in the business of appointing judges to the Supreme Court, I would consider any evidence of their bilingualism as a major strength, and evidence of the contrary as a weakness. But I would keep in mind the fact that judicial appointments inevitably involve tradeoffs. A prospective judge might be a brilliant criminal lawyer, but know relatively little about commercial law. Another can be an expert on the civil law, but have only limited notions of the common law. Such judges are therefore, far from perfect ― but sometimes, far from perfect is the best we can get. There is no Hercules hiding out there within the ranks of the Canadian legal profession, awaiting a Supreme Court appointment. Similarly, lack of linguistic skills is a flaw in a potential judge ― but I would not foreclose the possibility that a candidate who has this flaw nonetheless represents the best balance of flaws and qualities available, or the one that is most adapted to the present needs of the court to which he or she will be appointed.
To be sure, I think it is incumbent on newly-appointed judges to be aware of their shortcomings, and to do their best to remedy them. Given the breadth of the Supreme Court’s jurisdiction, no judge can be expected to be an expert in all the areas of the law that may be relevant to its work, but all judges can be expected to try to fill the gaps in their legal knowledge. And in the same way, I think it is fair to ask that judges who do not speak or understand one of the Court’s languages try hard to learn it ― exactly as the Chief Justice has done and Justice Moldaver is doing. But it would not be fair to expect all to succeed perfectly.
There are good reasons why appellate courts are multi-member institutions. One of these reasons is that the judges all have their strengths and weaknesses, and the strengths of some can help mitigate the weaknesses of others. In the context of the Supreme Court of Canada, unilingualism is a weakness. As some the current judges prove, it is not an incorrigible one even at the individual level but, more importantly, this weakness can be remedied by the institution. It would be great, of course, if the Supreme Court’s bench consisted of nine fluently bilingual experts on every part of Canadian law. But, realistically, we must make do with imperfect judges. Among the many judicial imperfections, I do not think that unilingualism is a uniquely disqualifying one.