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The Supreme Court of Canada in Ottawa on June 17, 2021.

Justin Tang/The Canadian Press

There was something ersatz about the controversy over the new governor-general’s lack of bilingualism – or rather, since Mary Simon is fluent in both English and Inuktitut, her lack of proficiency in French.

Francophone commentators who had never previously disclosed a belief that there should even be a representative of the Queen in Canada were suddenly greatly exercised that he or she should be able to speak both of Canada’s official languages.

Anglophone liberals, meanwhile, who would once have been the first to mount the barricades for official bilingualism, switched smoothly to denouncing the very idea as a colonialist outrage – joining conservatives, who never had much use for it.

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What everyone seemed to agree on was that it was hypocritical of Justin Trudeau, having made such a show of his commitment to bilingualism in public appointments until now, to ditch it the moment it came into conflict with his other grand obsession, diversity.

But of course he hasn’t really ditched it, has he? More likely, the rule has simply been amended: henceforth, bilingualism will not be required of diverse candidates, but only, er, non-diverse ones.

It’s hard to see how it could be otherwise. For fluency in both official languages is not distributed evenly among the population: it skews sharply by class, race, and region. People do not typically “pick up” a second language out of the air. They were either intensively trained in it as a child – in French-immersion courses that are overwhelmingly the preserve of the white and the well-to-do – or they live in a part of the country where they are likely to come into regular contact with both languages.

So a bilingualism requirement is likely to radically narrow the pool of available candidates – especially if it is layered on top of other prerequisites, like race, gender, or region. That doesn’t mean it should not be applied. But it does make the tradeoffs more acute, forcing us to think clearly about how much weight to attach to symbolism, and how much to the actual requirements of the job.

Of course, when the office in question is the governor-general, arguably, symbolism is a requirement of the job. But so is an ability to communicate. English and French may have been the languages of the colonists, but they are also the languages spoken by the vast majority – more than 90 per cent – of the population. No other language is even close.

Governors-general spend a lot of their time talking to the public. It makes sense that they should be able to do so in the languages that most of the public understand. So you could make a case that it should be an occupational requirement, even at the cost of narrowing the talent pool. At the least, it should be a consideration.

The same sort of cost-benefit analysis, however, would suggest it should not apply in the case of another high office: Supreme Court justices. Yet even as he was relaxing what had been an informal rule with regard to governors-general, the Prime Minister was responsible for legislation, Bill C-32, that would make it a legal requirement of appointees to the Court.

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This seems perverse. Supreme Court judges do not, as a rule, make public speeches. Neither are they obliged to work a rope line, or deal spontaneously with members of the public in a range of other settings. To the extent they appear in public at all, it is in a courtroom, where they have the benefit of some of the best interpreters in the country.

The Court has always been bilingual, in the sense that anyone may plead their case in the official language of their choice. But it has never previously been required that members of the Court should be obliged to hear them in that language. Neither has any evidence been produced to show that any miscarriage of justice has resulted. We’re quite good at simultaneous translation in this country, if you’ve noticed.

So the gains from requiring every Supreme Court appointee to be personally bilingual would appear murky, at best. On the other hand, the costs are abundantly clear. Judges from certain backgrounds – Indigenous, Western Canadian, immigrant, working class – are far less likely to have acquired fluency in both official languages. Should they be passed over in favour of less able jurists, who happen to be bilingual?

It would be one thing if bilingualism were a genuine requirement of the job, as vital as wisdom, reason and knowledge of the law – or diversity, for that matter. But as there is no evidence that it is nearly as important, it is hard to see why it should even be an informal prerequisite, let alone a legal one.

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