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Unilingual Supreme Court of Canada judges just don’t get it
By Sébastien Grammond

May 21 2010 issue

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The Senate is currently studying Bill C-232, which provides that in the future, judges of the Supreme Court of Canada must understand English and French without the assistance of an interpreter. This is a long overdue reform. In a country that boasts about its bilingual character, it is only normal that Francophones may be heard in their own language in the highest court of the land.

However, former Justice John Major argues that being unilingual did not prevent him from doing his job properly, as interpretation allowed him to understand fully what Francophone lawyers were saying. This is an interesting claim to be made by a unilingual Anglophone: how can one evaluate the accuracy of a translation if one does not understand the original language?

So let’s have a closer look at the accuracy of the interpretation at Supreme Court hearings. I argued a case last month in the Supreme Court. When I said, in French, “The Gosset case affirmed the principle of full compensation of the injury”, the interpreter translated “Gosset says that there has to be comprehensive damage”. When I wanted to contrast the civil law and the common law, which adopt different positions on the compensation of grief, I said, in French, that “at common law grief is not compensable”. The interpreter omitted to translate “at common law”, making it sound as if the statement related to the civil law, thus inserting a contradiction in the English version of my argument. Other examples of errors are the translation of “droit commun” (which means general law) by “common law” (a totally different concept), saying that one’s rights were not breached without specifying that I was talking about “Charter rights”, which makes my argument incomprehensible, or saying that the second paragraph of article 1610 of the Civil Code was not applicable when I said that it was.

Overall, the interpretation was good, but inconsistencies, incomplete statements and, indeed, errors such as these necessarily affect the force and the logic of the oral arguments presented. A legal argument is like a chain: if one piece breaks, the whole thing falls apart. Legal language is highly technical and cannot suffer from imprecision.

Yet, I was lucky, as all the members of my seven-judge bench understood French and did not rely on the interpretation provided. Michel Doucet, who argued Charlebois v. St. John (City) in 2005 before a full bench that included Justice Major, was not so lucky. He was shocked when he listened to the English version of his argument on CPAC. The interpreter distorted the meaning of several sentences, omitted a reference to a section of the Charter, and totally omitted to translate a sentence.

Lawyers who appear before the Supreme Court finely hone their arguments and rehearse several times. Each sentence is carefully crafted, especially as time is short. It is not too much to ask that judges understand all the subtlety and the nuance of what is being said, in the language in which it is said.

But there is more. The presence of unilingual judges at the Supreme Court marginalizes French in the court’s own work and in general legal doctrine.

When an unilingual judge sits on a case, discussions between the judges will take place in English, even though the case was argued in French or dealt with civil law topics. If the judgment is drafted in French, the unilingual judge will not be able to concur before a translation is ready, which may result in additional delay. Alternatively, Francophone judges may choose to write in English (even in some cases from Quebec). As a result, barely 10 per cent of the judgments are written in French.

Unilingual judges are also unable to draw upon the rich body of legal doctrine written in French. Areas such as constitutional law, administrative law, criminal law, aboriginal law, divorce and intellectual property are largely uniform throughout Canada and law journal articles and books written in French in Quebec on those topics are just as relevant as classical English Canadian textbooks. A study by Professor Peter McCormick has shown that from 1985 to 2004, the Supreme Court relied much more on English journal articles than on French ones. The presence of unilingual judges marginalizes French-speaking academics who see their work much less frequently cited than that of their English-speaking counterparts.

Finally, one must not forget that federal statutes, and those of Ontario, Quebec, New Brunswick, Manitoba and the three territories are enacted in both languages and that both versions have equal status. One would expect the final interpreters of those laws to be able to read both versions, especially as the canons of interpretation sometimes require the French version to be given priority over the English one (as in R. v. Daoust, [2004] 1 S.C.R. 217).

The bottom line is that knowledge of French is a requirement for a job on the bench of the Supreme Court of Canada. Is that unfair? The reality is that Anglophone judges who eye a Supreme Court appointment have known for at least 30 years that knowledge of French is, at the very least, a definite asset. Federally-appointed judges across the country have resources at their disposal to learn French and to familiarize themselves with the civil law. There are second-language training programs. Several judges have even taken advantage of their study leave to spend time in a Quebec university. There are many highly competent candidates who understand French, and it is not unfair to turn to them for the next appointment.

Sébastien Grammond is dean of Civil Law at the University of Ottawa.

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