Is it time to loosen the requirements for bilingualism in the federal government?
YES It’s needed to improve Indigenous involvement
Canada is home to a panoply of individuals and groups from different legal, racial, ethnic and cultural backgrounds. Canada embraces the diversity of its citizens through its laws, policies and political institutions.
One of the foundational principles upon which this country was founded finds expression in the federal Official Languages Act, namely, that “English and French are the official languages of Canada and have equality of status and equal rights and privileges as to their use in all institutions of the Parliament and government of Canada.”
That said, the laudable purpose of promoting English and French within our federal legal and political bodies is at odds with another foundational principle in Canada: distinct legal orders coexist and apply simultaneously.
The English common law, French civil law and Indigenous legal orders collectively comprise Canada’s constitutional democracy. Mandating bilingualism in French and English in our federal legal and political institutions, including the Supreme Court of Canada, will greatly undermine the recognition, advancement and implementation of Indigenous legal orders, contrary to our Constitution.
Canada’s diverse constitutional foundation, as evidenced by the English common law in the preamble to the Constitution Act, 1867, the French civil law in section 94 of the same, and Indigenous legal orders in section 35(1) of the Constitution Act, 1982, reflects the unique roles that Indigenous, English and French constituents played and continue to play in the country’s legal system.
Accepting, as we all must, that Canada is multi-jurisdictional, comprised of Indigenous law, the common law and civil law, it follows that the people responsible for participating in federal institutions that apply, define and interpret those laws should be people who are of those legal orders.
However, stringent bilingual requirements, which exclusively promote English and French within our federal institutions, prevent Indigenous peoples from participating in those same institutions.
According to the 2016 census, only 11.4 per cent of all Indigenous people in Canada are bilingual in English and French compared to 19 per cent of all Canadians who are bilingual in English and French. This percentage gets even smaller — 6.9 per cent — when considering solely First Nations people. Further, only 10.5 per cent of Indigenous people report being able to conduct a conversation in both English and French compared to 17.9 per cent of the non-Indigenous population.
One reason for low Indigenous bilingualism as compared to non-Indigenous Canadians stems from the public education system. On-reserve schools are underfunded and underserved, making access to French immersion education more difficult for Indigenous people unless they attend an off-reserve school.
Another reason stems from the mandatory attendance at residential and day schools. These generations lost their own languages while attending residential and day schools as they were forbidden from speaking anything other than English or French.
Decades later, many Indigenous individuals are just now starting to relearn their Indigenous language. Acquiring either one or both of Canada’s official languages in conjunction with relearning their own language is an additional burden to Indigenous people.
For many Indigenous people, learning English or French means putting aside relearning their own Indigenous languages to gain access to institutions that make some of the most important decisions impacting Indigenous peoples.
Lastly, from the Indigenous peoples’ perspective, there may be a strong assimilative connotation to imposing a requirement that Indigenous people speak both of Canada’s official languages to be eligible to fill a role in the federal government. Loosening the requirements for bilingualism for Indigenous peoples would assist in ensuring Indigenous people are being adequately represented in the federal government.
In summary, the promotion of the English and French languages within our federal institutions should not be applied to the detriment of Indigenous peoples. The amendments to the Official Languages Act recently introduced by the federal government mandating bilingualism in federal institutions, such as the Supreme Court of Canada, are both unconstitutional and contrary to Canada’s claim that it is a just, diverse and multi-juridical country. Drew Lafond is the president of the Indigenous Bar Association in Canada.
NO Rules aren’t symbolic, but a critical competence
Imagine you were being honoured by the governor general for your life’s achievements and you didn’t understand a word being said.
Gov. Gen. Mary Simon has acknowledged the problem and vowed to learn French.
Imagine you were a member of Parliament and couldn’t understand the auditor general because he did not speak your official language.
The late Michael Ferguson learned French so he could answer questions in French at Parliamentary committees and at news conferences. Parliament then made bilingualism a requirement for agents of Parliament.
Imagine you were a lawyer who had argued a case in French in Quebec; the case was now before the Supreme Court and you knew that at least one of the judges could not understand your arguments without the use of an interpreter. Would you be confident that the interpretation would catch the nuances of your argument? The Liberal government has only named bilingual judges to solve this problem and proposed to end the exemption from bilingualism that now exists for Supreme Court judges.
There are four reasons for a federal public servant to be bilingual: to be able to serve Canadians in their language of choice, to manage those public servants who have a right to use English or French in a bilingual district like the National Capital Region, to serve a minister who has a right to be briefed in his or her official language of choice and to understand the country as a whole.
And yet, some people argue that bilingualism in English and French for senior federal officials is simply symbolic and too constraining and that the requirement of bilingualism for senior positions in the federal government should be loosened.
On the contrary. There are some four million French-speaking Canadians who do not speak English; they have the right to services in French just as those English-speaking Canadians who do not speak French have a right to services in English.
Those who argue that the requirements are too onerous claim that they create an unfair barrier to unilingual English-speaking Canadians to senior positions in the federal government or the Supreme Court. But they are also a barrier to unilingual French-speaking Canadians.
Being named to senior federal positions is not a right. Citizens have the right to be served and understood in either English or French by the federal government. Canada’s language policy is designed to protect the unilingual; to ensure that citizens do not have to learn another official language to communicate with the government.
This became law with the Official Languages Act in 1969 and updated in 1988. At that time, then-justice minister Ramon Hnatyshyn said it was too soon to require bilingualism for Supreme Court judges, but that the time would come. That time, 33 years later, has come. Any judge who wants to be considered for the Supreme Court by this government can get excellent language training, tailored for the courts.
This is important, because Canada’s laws are not translated, they are drafted in both languages. When there is a difference in nuance between the French and English versions, there is only one institution that can decide which one better reflects the will of Parliament: the Supreme Court. As early as 1935, the court decided it was the French version. To determine this requires a significant level of bilingualism.
Some 40 per cent of the provincial cases that are heard by the Supreme Court come from Quebec. Those cases have been argued entirely in French, and all of the documentation is in French. A unilingual English-speaking judge has to rely on a bench memo written by one of his or her clerks — who is fresh out of law school and has to summarize a pile of factums.
When the Indigenous former Ontario judge Harry Laforme complained that the requirement for bilingualism had kept him from being named to the Supreme Court, he was asked why he hadn’t learned it, given the training that exists for judges. He replied, “Because it wasn’t required.” Now it is.
All of which is to say that bilingualism in the federal government and on the Supreme Court is not a matter of symbolism or political correctness. It is a critical competence.