David Butt is a Toronto-based criminal lawyer.
Harry LaForme’s father couldn’t leave the reservation whenever he wanted, because the federal government wouldn’t let him. Harry LaForme became Canada’s most accomplished Indigenous judge. But he couldn’t sit on our Supreme Court because without knowing French, the federal government wouldn’t let him.
The federal government’s 2016 announcement that all new Supreme Court judges must be proficient in French prevents our highest court from aspiring to the highest levels of excellence and inclusion it could otherwise attain. And at the Supreme Court, excellence and inclusion matter most.
The Supreme Court is the only Canadian court that carefully curates almost its entire docket. Each year, hundreds of thousands of cases pass through lower courts, but the Supreme Court hears only about 70. With such limited capacity, the court chooses only the thorniest, most monumental legal problems, which are becoming increasingly complex. And when the court issues rulings, they stand as precedents for decades, far longer than elected governments serve. When the legal problems are thorniest, and their impact greatest and longest-lasting, the wisest possible rulings are imperative. The Supreme Court is a forum for only the sharpest legal minds. And yet it cannot be said that French speakers, as a class, have sharper legal minds than non-French speakers.
Supreme Court judges must come from the highest echelons of the legal profession, where the requirements of entry are massive talent and massively hard work. However in many legal communities across the country, mastering French is not required to excel. So by excluding those legal luminaries, the government is draining the talent pool.
Furthermore, learning a second language as an adult is far harder than learning it as a child. Learning it well enough to address intricate legal problems is harder still. And at the same time, achieving legal excellence is notoriously labour-intensive. So most Supreme Court-worthy prospects without childhood French fluency lack the time to gain it in adulthood. Thus a mandatory French-proficiency requirement advantages those born into francophone or bilingual families, or born to anglophone parents who enroll their kids in French immersion. Such advantage, bestowed by birth and divorced from ability, is non-egalitarian and non-meritocratic.
Our Supreme Court must reflect our status as a bilingual nation. The court does so already without using French proficiency to categorically exclude large swaths of excellent candidates. Three members of the Supreme Court are always from Quebec. Litigants plead their cases in either official language. Simultaneous translation services are excellent. And bilingual support staff edit and translate everything judges write. Non-French-speaking judges have served with distinction for decades, up to and including today. The court has no bilingualism problem that mandates summary exclusion of non-French speakers.
Since the Second World War we have seen a proliferation of transnational organizations in the public, private and NGO sectors that work seamlessly across linguistic boundaries. And while English as the default common language is dominant, these organizations also recognize that categorically excluding those lacking proficiency in any particular language is morally unpalatable, and would also make those institutions far more anemic. Canada prides itself on its commitment to globalism. Supreme Court appointments should follow this contemporary global norm.
Diversity also plays an important role in Court appointments. To the limited extent possible with nine judges, appointments should reflect the diversity of the population served without sacrificing legal excellence. This delicate task should not be complicated by rigidly ranking French proficiency above all other diversity traits. If any diversity trait should be emphasized in an era of reconciliation, it should be Indigenous membership on a court imposed by colonizers in 1875.
French proficiency should be a competitive advantage, not imperative – just as gender should be when the Supreme Court lacks gender parity. This more nuanced approach would emphasize pan-Canadian bilingualism without excluding many worthy candidates in non-francophone communities who quite understandably declined to learn a language with no local utility for them. And on the cynical flip side, ambitious career climbers in the anglophone legal profession are recognizable by their sudden enthusiasm for French lessons in midlife, which often come at the expense of deeper legal learning. Those strategic players valuing self-promotion over excellence should not be rewarded with an inside track.
Mandatory French proficiency is doubtless considered sound politics. But the mess south of the border teaches us that the last place we should politicize is the Supreme Court.
Harry LaForme, born on a reserve, had no chance to learn French. He was therefore barred from the Supreme Court, and Canada is poorer for it. The next Harry LaForme deserves better. And so does the country that stands to benefit from his or her legal wisdom.