The Sixth Estate

I’m probably the last person in the country to weigh in on the Harper regime’s English-only Supreme Court judges and Auditor-General. But since nobody I’ve read has yet said the only thing worth saying on this subject, I’m going to do so anyways. Plus, my interest was piqued by a scurrilous column by apparently well-meaning Lysiane Gagnon in the Globe & Mail this morning, which claims that it’s okay for a Supreme Court judge to be unilingual but not for an Auditor-General to be. The (il)logic is stupefying.

As someone living in the heart of Anglophone-land (aka Western Canada), I’ve come to expect a fairly standard response when I raise this subject. “Are you really saying you don’t think you should be allowed to be a judge or a commissioner if you wanted to be?” people say. “These appointments should be based on merit alone.” That’s what Gagnon said, too. But what they don’t seem to understand is that in a bilingual country, being able to speak both languages is “merit.” If you can’t meet that job criterion, you don’t deserve the job. The fact that translators exist is irrelevant. This is like saying that you deserve a job as a delivery driver despite having no driver’s license, because at least your friend has one.

And that’s just our side of the equation. The real question we should be asking is: do we honestly think highly qualified a judge who is so conceited, arrogant, and ignorant that he is agreeing to take up a job where he will be expected to render learned opinions in a language he can’t even read?

It’s at this point in the discussion when my friends return to their original rhetorical questions. But I have one of my own: imagine the howling response from Western Canada if the government appointed a Supreme Court judge who didn’t speak any English. First, there would be outright disbelief, based on the prejudicial if often accurate stereotype that “they all speak English anyways.”

Next, there would be anger — complaints that a Francophone-only judge wouldn’t understand complex legal documents written in English. Someone with a pseudo-intellectual bent, angry morons like Ezra Levant, might even drag out an argument that someone raised in a French legal tradition wouldn’t understand the finer points of English common law. Maybe someone would even claim that French Catholics are too loyal to the Pope to be allowed on the high bench, though that particular version of anti-Quebec bigotry is so 19th century that I honestly don’t expect to see it raised again. We have more sophisticated forms of bigotry now.

The point is, this country is bilingual. Contrary to popular opinion, that does not mean that everybody should speak both languages. What it does mean is that regardless of which language you speak, you have an absolute right to converse fully with the highest unelected officers in the land: the Prime Minister, the Supreme Court judges, the Auditor-General, and other Parliamentary commissioners. None of these people should be unable to speak to a huge swathe of the citizenry, ever. This country was founded on a compromise between French and English. I realize you may think it’s unnecessary and tedious, but there it is. If you want a staunchly unilingual country that will suit your bigotry, all you have to do is trundle south of the border and get a green card.

Now, Gagnon says that only “a tiny minority” of Supreme Court judges should be unilingual at any particular time, but her argument gives us no reason to suspect this would be good. If it doesn’t matter what language they speak, they can all be unilingual. If it does, though, none of them should be. And it isn’t a tiny minority anyways: now it’s two of the court, counting Marshall Rothstein. Incidentally, Rothstein was recently challenged by the NDP for failing ro learn French since being appointed. His cheeky response, more becoming a politician than a high judge I’m sure you’ll agree, was that he doesn’t have to learn French because he never promised to do so.

So much for the principles. Now for the consequences. In my opinion, going forward, any Supreme Court case in which arguments are made in French and in which Rothstein’s and Moldaver’s votes are the decisive factor (meaning split decisions) are automatically illegitimate. The reasoning here is simple: due process. How can we be certain that the precise nuances of legal language correctly made the jump from French into English, so that they could be understood by someone who themself is so ignorant and bigoted that they would even consider taking up a job where they would be required to hear arguments and render judgements in a language they don’t even speak?

We haven’t had to genuinely worry about national unity politics in this country for over a decade now. But if we English-speakers continue to celebrate our majority victory over the NDP-voting Quebeckers as arrogantly as we have been so far this year, another nasty fight won’t be too long away.