One of the more contentious debates in the last Parliament centred on a private member’s bill that would have required all Supreme Court of Canada judges to be bilingual.
At the time, it was theory. Now, however, the practical effects of this debate are playing out in an enormously important contest to fill two vacancies in Ontario's contingent of three judges.
It has become conventional wisdom that proficiency in both official languages is a virtual must. Judges who are bilingual have been propelled toward the top of the list.
Perception can quickly create reality. Many top lawyers and jurists worry that the best candidates will be effectively blocked.
A Supreme Court vacancy should be filled by the best available candidate. He or she will spend the next 10 to 20 years deciding key federal-provincial disputes and, perhaps, social issues as momentous as euthanasia and capital punishment.
Fluency in both official languages is highly desirable, and unilingual judges who aspire to the most significant office in Canadian law ought to make an honest effort to fill this gap in within two or three years of their appointment.
But should bilingualism be the overarching qualification for appointment to the nine-judge bench, at the expense of all others?
The Court has as skilled a retinue of translators and staff lawyers as can be found. What's more, if simultaneous translation is good enough for the United Nations Security Council and G8 summits, why not the Supreme Court of Canada?
Consider that Chief Justice Beverley McLachlin was unilingual when she was appointed in 1990, but she swiftly learned French – while two of our greatest jurists, Bertha Wilson and John Sopinka, remained unilingual.
A short list of judicial candidates will soon be completed by an all-party parliamentary committee.
The perceived finalists do include such top-notch, bilingual jurists as Ontario Court of Appeal Justices Robert Sharpe and James MacPherson. But other candidates are thought to have an advantage largely because of their bilingualism.
The chances of some of the leading judges on the Ontario Court of Appeal – perhaps the strongest court in the land – may be handicapped by their linguistic deficiency. They include Eleanore Cronk, David Doherty, Michael Moldaver, Kathryn Feldman, Stephen Goudge, Eileen Gillese, John Laskin and Marc Rosenberg. The same is true of leading candidates from the bar, such as Sheila Block, Ben Zarnett and Linda Rothstein.
Moreover, observers question the chances of two candidates with strong credentials who are currently engaged in intensive French instruction: Federal Court of Appeal Judge David Stratas and Ontario Court of Appeal Judge Russell Juriansz.
If perceptions current in the legal community are being fed by background conversations involving federal government officials, our highest court may be in for troubled times.
We cannot afford to exclude the country’s finest legal minds from the Supreme Court. Prime Minister Stephen Harper must avoiding creating an unalterable convention – let alone a legal requirement – of bilingualism. It can, however, be a solemn commitment for any unilingual new appointee.
