A linguistic feud is under way within Canada's legal community over legislation that would require all future Supreme Court justices to be fluent in both English and French.
The new bill stokes ancient divides: Quebec against the West; English against French, once again forcing Canadians to confront the paradox of delivering a federal government that is both bilingual and regionally balanced.
Bill C-232, a private-members bill, would require that any future Supreme Court justice "understands French and English without the assistance of an interpreter." It passed the House of Commons last March, with the opposition MPs uniting against Conservative MPs, and is now being considered by the Senate.
For Jean Leclair, a professor in constitutional law at University of Montreal, the logic of the bill is self-evident.
"It's not only necessary from a symbolic standpoint, it's an issue of competence," he said in an interview.
A unilingual English judge has only limited access to the large body of legal commentary and scholarship written in French.
"If a whole range of judicial thought, of doctrinal material, is unavailable to you, because you just can't access it, it's a huge problem," he observed.
But Steven Penney, a legal scholar at the University of Alberta (he clerked for Mr. Justice Gérard La Forest) believes that passing the legislation would be "a very bad idea."
"The job of being a justice on the Supreme Court of Canada is incredibly difficult and requires a very particular skill set," he said. "There are very, very few lawyers and judges who are qualified."
Only 7 per cent of Anglophones outside Quebec speak both official languages, and most of those live close to the Quebec border.
"If we further restrict the pool of potential Supreme Court judges on the basis of their bilingualism," said Prof. Penney, "then the quality of justice rendered at that institution is going to diminish. I don't see any other way around it."
Eight of the nine current justices are bilingual, though to varying degrees.
Peter Cory, who sat on the court from 1989 to 1999, and who is fluently bilingual, believes it would be "very sad" if an otherwise outstanding candidate for the court were disqualified simply because of a language requirement.
The court "would be losing the value of an able and experienced person to deal with some of the most difficult issues facing Canada," he said in an interview.
Former Supreme Court justice John Major has been very vocal in his opposition. "If they make [bilingualism]a requirement, I don't know where you're going to find both competency and fluency in places like Vancouver and Calgary and Edmonton," he told The Canadian Press. "… So much of this is just pandering."
But for official languages commissioner Graham Fraser, a competent Supreme Court judge must, by definition, be bilingual. "I have difficulty comprehending how one could boast 'a lifetime of legal scholarship' without being able to understand Canada's jurisprudence in French," he said in a recent essay.
Conservative senators can be expected to oppose the bill, but they will need at least a few votes from the Liberals and independents to defeat it in the Senate. It is too early to make predictions about how the bill is likely to fare on the Senate floor.
Whatever its fate, C-232 illuminates a so-far-insoluble contradiction: In a bilingual country, it is essential that the senior ranks of the political leadership, public service and judiciary be bilingual.
But that requirement excludes many millions of Canadians from a life of public service.
It leaves Benjamin Berger, a legal scholar at University of Victoria, flummoxed. Absolutely, bilingualism should be a "pressing, important consideration" when considering possible appointments to the court, he believes.
But what if, he posits, a prime minister wanted to appoint an aboriginal jurist, to bring knowledge of indigenous legal traditions to the court, but none could be found who was bilingual?
"It's a difficult question," is all he can say. "… there's a lot of ways of slicing it."
With a report from Gloria GallowayReport Typo/Error