Putting bilingualism before competency

Supreme Court justices should not be required to be fluent in both English and French

The appointment of judge Russell Brown to the Supreme Court of Canada has been questioned in some quarters, not because of his powers of adjudication, as his professional record is excellent, but because the government did not announce whether he speaks French. This is an unfounded criticism, as competence in both languages should not be a serious consideration when selecting candidates for our highest court.

Bilingualism in the context of the Supreme Court means legal fluency, a far more onerous standard for second-language competence than exists for other federal government jobs. Yes, certain jobs require a person to be completely fluent in both languages. But for others, merely being able to carry on a conversation in the second language is adequate, thus allowing people who are not “naturally bilingual,” but who are otherwise the most qualified, to compete.

In demanding a bilingual bench, proponents — including Liberal Leader Justin Trudeau — are clearly insinuating that judges should have a level of fluency that, in many cases, can only be achieved by people who have grown up in French-speaking areas of the country, such as Quebec and New Brunswick. Doing so would mean that a disproportionate number of future appointments would be selected from eastern Canada, and a great number of highly qualified legal minds would be rejected, simply because of their French-language skills.

We already have the requirement that three of the nine Supreme Court justices come from Quebec, not in order to hold up the ideal of a bilingual country, but to ensure that some of the judges have a thorough understanding of Quebec civil law (which differs from the British common law used in the rest of Canada). It is far more vital that a critical mass of the court’s membership be “fluent” in the two legal traditions, than for all judges be fluent in French and English, especially given the fact that the justices are given access to highly skilled translators — a system that has worked well up to this point.

Taking language into account automatically takes away from what should be the primary consideration making appointments to the Supreme Court: how competent the candidates are. After all, do we want the best legal minds in the country adjudicating the law, or merely the best candidates who also happen to have a very high proficiency in both English and French?