MONTREAL — The Quebec Bar Association wants the Harper government to reconsider its appointment of a unilingual judge to the Supreme Court of Canada, saying it denies francophones equality before the law.
Justice Michael Moldaver, one of two nominees to the country’s highest court announced by Harper on Monday, does not speak French.
The bar association says Canadian citizens have the right to expect they will be understood regardless of what official language they speak when they appear in court.
“It’s a nomination with heavy consequences for the rights of Canadians and signals a step backward — because the two judges whose posts are being filled were bilingual,” said Louis Masson, the president of the bar association.
The association said it would still oppose the nomination if Moldaver only spoke French.
Monday’s nomination has intensified a debate over bilingualism in the justice system.
Opponents of mandatory bilingualism say what matters most is that a judge can understand the law. The court has translation services.
But the bar association said interpreters are no substitute for understanding someone directly when they’re arguing in court — without the filter of a third party. The group’s director said the issue is “a question of equality before the law, of respect for the Constitution, which states that the French and English languages are equal.”
“The citizens who come to court must believe they will be understood and can speak their own language, if it is one of the two official languages,” said director Claude Provencher. “This is extremely important, it is not a minor point for us. It’s a question of access to justice.”
The association, which represents 24,000 Quebec lawyers, says this appointment means two of the Supreme Court’s nine judges are now unilingual.
Sebastien Grammond, dean of the civil law section of the University of Ottawa, points out that one-third of the cases before the court are either totally or partially in French.
A unilingual judge would be unable to read the original appeal court judgment and would have to rely on summaries prepared by law clerks, he added.
“That means the parties do not have an unmediated access to the judge who will be participating in the decision,” Grammond said.
While translators do a good job during oral hearings, he noted “it’s almost an impossible task.” Errors — some significant — have been found when translations and the original French-language arguments are compared, he said.
“In some cases the meaning of the argument was entirely distorted,” said Grammond, who has written a paper on the subject.
He added that the judges also have to interpret federal legislation, which is enacted in both official languages, each of which have equal weight before the court.
“Therefore an anglophone unilingual judge is not able to read half of the statute he has to interpret.”
Grammond said there are a many excellent bilingual judges across the country who would have been suitable candidates.
The benefits of bilingualism have been clear to the judiciary for at least 40 years and Grammond said roughly 200 judges across the country enroll in language courses every year.