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May 26, 2010

Canada, Bilingualism and the Supreme Court

Reuel S. Amdur

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The House of Commons has passed a bill requiring all future Supreme Court justices to be able to understand French and English without the assistance of an interpreter.

“Anyone who is seriously motivated to learn French can do so, especially if he puts a real effort into it,” said Maxwell Yalden, former Commissioner of Official Languages. Graham Fraser, the current commissioner, argues that the law is needed to represent the nation’s linguistic duality.

Yet, there are problems.

First, the pool of lawyers with the requisite language skills is limited, especially in the West. The concern is illustrated by the long list of past and present Supreme Court justices who could not have been appointed were the law in place, including our present Chief Justice, Beverley McLachlin.

Second, let’s consider Yalden’s argument about motivation being a factor.

Can anyone learn a language? A former sister-in-law of mine is a university professor who began speaking her native language, English, quite late. She flunked the compulsory English test for the University of California several times, and on a number of occasions failed the course designed for those who failed the test, unofficially called “bonehead English.” She also failed to learn various second languages in university.

While her case is an extreme one, the point is that people have a range of capacities for language learning.

One doesn’t know how many fewer potential Supreme Court justices there would be, but the number would obviously be very large.

And as one newspaper letter-writer suggested, why not insist that all Members of Parliament be bilingual?

Social psychologist John Dollard holds that the denial of an opportunity is experienced as punishment. To the extent that opportunities are limited by barriers that are felt to be unfair, we can expect hostile reactions.

In this particular situation, the language requirement can be expected to create opposition to bilingualism and promote French-English conflict.

I had a phone conversation with a hospital employee in the Flemish-speaking section of Belgium that illustrates the trickiness of comprehension “without the assistance of an interpreter.”

When I called the hospital I asked to speak to a social worker or nurse who could communicate in English or French. The man to whom I was connected gave me the choice, and so we proceeded in English.

His English was very good, but he did not know the English for “workshop,” having to use the French “atelier.” Would someone with his level of English competence be eligible for a position on the Court?

My conversation raises another issue.

In many European countries, languages are taught in schools beginning in the early grades, and linguistic plurality is expected of people, especially those going on to university. Instead of focusing on motivation as Yalden does, we should look at opportunity. Our educational systems are failing us by not facilitating multilingual competence.

Support for the bill is strong among Quebeckers and French-speakers generally, as well as among members of the bilingual élite, like Yalden and Fraser.

Leaving aside the élite, let us consider the French-speakers. They live in a sea of English, even in Quebec. In many cases in order to advance, they need some degree of English fluency.

So, is it not just fair to insist that what’s sauce for the goose is sauce for the gander? Superficially, the argument makes sense, but we have seen the difficulties in practice. However, there may be another way of advancing toward an equitable solution.

Rather than a “smartening up,” we could follow a path of “smart enough,” not just for English speakers but also for French speakers.

In making appointments to the Supreme Court, the prime minister could make an effort to find and appoint competent, knowledgeable French-speaking legal experts whose English just ain’t that good. The interpreter services available to the Court should be quite capable of making that workable.

The basic problem, however, is not the linguistic ability of Supreme Court justices—it’s what’s happening in this country’s schools.

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