Bilingual judges: someone is sure missing the point

ANDREW COYNE: What is good enough for Parliament would no longer be good enough for the Supreme Court
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By the terms of Bill C-232, legislation adopted by the House of Commons requiring all appointees to the Supreme Court to be fluent in both official languages, one is obliged to ask whether those who passed it knew what they were voting on. Many if not most of the 140 MPs who voted to make the judges bilingual would not, after all, qualify for that description themselves, at least to the level the bill requires, that is of being capable of working in either language “without the assistance of an interpreter.”

How, then, can they be sure the French version of the bill is the same as the English, or the English the same as the French? Both versions are of equal weight and force. How can they fully grasp the implications of the law they are being asked to pass, if they understand only one version? With the assistance of an interpreter, that’s how. Somehow Parliament survives.

Yet, what is good enough for Parliament would, if the bill passes the Senate, no longer be good enough for the Supreme Court. The court itself has always been bilingual, in the sense that anyone appearing before it has the right to plead his case in either official language. Yet, only a small minority of the judges themselves have ever been fluent in both. To hear evidence in the other language they rely on interpreters. If there has ever been a single miscarriage of justice to arise from this, I have not heard of it.

That’s not the point, say proponents of the bill. Those who appear before the court should not only have the right to give evidence in their own mother tongue, but to be heard in it: interpreters, they say, sometimes miss little nuances of meaning. Moreover, the indignity of interpretation in practice falls mainly on French-speaking appellants, since it is the court’s English-speaking judges who tend to be unilingual, while the francophones are more commonly bilingual. The same argument is heard with regard to deliberations amongst the judges themselves. If even one unilingual English judge is present, it is claimed, the discussions take place wholly in English.

This is more than a question of fairness, they insist. It should also be viewed as a matter of competence. A judge who has not read French jurisprudence in the original is not fully versed in the law. A judge who cannot hear or discuss evidence without a translator is likewise handicapped, incapable of giving the same level of service to the court as his bilingual colleague. In the words of one commentator, “language is a part of ability.”

All well and good—were it not that the two arguments, fairness and efficiency, tend to contradict each other. The complaint, after all, that bilingual francophone judges are expected to work in both languages while their English brethren are not, rests on an unstated but crucial premise: working in a second language is harder. Nobody’s perfectly bilingual, especially at the high level of fluency required for Supreme Court work. Even bilingual judges think, write and speak better in their first language. To the extent that working in a second language is an imposition, it’s also inefficient.

Moreover, it cuts both ways. Efficiency costs occur not only when a judge is forced to speak in his second language: the same is true of the judge who has to listen in his. The same minor breakdowns in communication, the same small losses of nuance and dropped meanings, apply. Ensuring that French-speaking judges can speak in their first language can only mean obliging English-speaking judges to listen in their second. How is this progress?

Suppose there are three French-speaking judges on the court, and six English-speaking. All are bilingual, as the bill requires. Suppose, further, they agree to deliberate in English two-thirds of the time, and French one-third. And suppose, for the sake of computational ease, they work a nine-hour day.

Under the status quo, where all discussions are carried out in English, the three French-speaking judges would have to speak or listen in English for nine hours: a total second language exposure (SLE) of 27 person-hours. But under the revised process the SLE score rises to 36: while the three French-speaking judges would only have to work six hours in English, the six English judges would now be spending three hours working in French.

If instead they split the time 50-50, total SLE rises to 40.5 (you can do the math yourself). The point is, the more judges you have working a greater percentage of their time in their second language, the greater the aggregate comprehension loss. Far from improving the judges’ collective ability to hear and discuss difficult cases, the opposite would be the case. Requiring all judges to be bilingual may distribute the burden of adjustment more fairly, but at greater costs in missed nuances.

Which leaves us with the arguments of the bill’s critics, and competence issues of a different kind: the dramatic shrinking of the talent pool, especially in the western provinces, that must inevitably follow if bilingualism is made a condition of selection to the court. The implications are alarming—not only a general decline in the quality of the judges, but the effective exclusion of the West from consideration. That would be hard to justify even if there were some great injustice in the present set-up, or if mandatory bilingualism were likely to remedy it, but as it is it seems clear the cure is worse than the disease.