[Canada] Canadian Politics Redux

[Grey Fox]

I think getting a unilingual french speaking judge would settle everything down.

But here's the thing - I feel like you'd have to look really, really hard to find a qualified justice from Quebec who didn't speak English.  On the other hand you could find dozens of otherwise qualified justices who only spoke English.

Not really. Quebec courts are full of french only judges. I don't know anything about how we qualify judges but candidates in the lower courts exist & if you can plan it a little you probably can find a suitable candidate.

[Jacob]

I'm not opposed to having a unilingual french speaking SCC justice.

But here's the thing - I feel like you'd have to look really, really hard to find a qualified justice from Quebec who didn't speak English.  On the other hand you could find dozens of otherwise qualified justices who only spoke English.

That's a good point, and to be balanced against the need to assuage Francophone sensitities (which I think is a real need). It'd probably be better to start with senior government ministers and a GG, but I still personally think it should be on the table (even taking Malthus' comment after yours into consideration).

[Barrister]

I think getting a unilingual french speaking judge would settle everything down.

I know you are being sarcastic, but it is obvious that having a unilingual French judge would be an even worse idea, due to the mathematics of the situation.

Accepting for the purposes of argument that only someone who speaks the language should hear cases in that language, the vast majority of cases outside of Quebec would be in English - some 3/4. That means a unilingual English judge could still work on 3/4 of cases, while a unilingual French judge could only work on 1/4.

They have translators at the SCC.  A unilingual justice, either french or english, would still be able to work on all cases.

The argument is that they'd be at a disadvantage by not being able to fully and immediately understand any argument being made - but not that they'd be disqualified from hearing cases.

[Malthus]

I think getting a unilingual french speaking judge would settle everything down.

I know you are being sarcastic, but it is obvious that having a unilingual French judge would be an even worse idea, due to the mathematics of the situation.

Accepting for the purposes of argument that only someone who speaks the language should hear cases in that language, the vast majority of cases outside of Quebec would be in English - some 3/4. That means a unilingual English judge could still work on 3/4 of cases, while a unilingual French judge could only work on 1/4.

They have translators at the SCC.  A unilingual justice, either french or english, would still be able to work on all cases.

The argument is that they'd be at a disadvantage by not being able to fully and immediately understand any argument being made - but not that they'd be disqualified from hearing cases.

That why I said to accept that for the purposes of argument. I agree the reality is that unilingual judges can in fact work on cases in languages they don't speak - though at a disadvantage.

This makes no difference to the point I was making though - which was, that whatever disadvantage may accrue, would be worse in the case of a judge who only spoke French than in the case of one who only spoke English. Due simply to the relative volume of cases in the two languages.

On a side note, I once had to opine on a contract written in Arabic and Russian ... and with no translators available (it was late at night and a discrete point had to be considered right then) ... 😄

[Barrister]

On a side note, I once had to opine on a contract written in Arabic and Russian ... and with no translators available (it was late at night and a discrete point had to be considered right then) ... 😄

That sounds like a malpractice lawsuit waiting to happen.

[Malthus]

On a side note, I once had to opine on a contract written in Arabic and Russian ... and with no translators available (it was late at night and a discrete point had to be considered right then) ... 😄

That sounds like a malpractice lawsuit waiting to happen.

I caveated the answer heavily, noting that a definitive answer had to wait for translation, and commentary by counsel in their respective legal systems. They just needed to know a particular question concerning which law applied according to the terms of the contract, which was pretty easy to determine (it was the laws of England, with London the choice of jursidiction). Not, as I pointed out, whether this choice of law would be definitive under the circumstances.

This sort of problem is common in conflict of laws situations (contracts written in different countries, to be performed here in Ontario). There is simply no single lawyer qualified to definitively opine on it. How many Ontario lawyers are also qualified to practice in England, Russia and Saudi Arabia?

[Oexmelin]

Mere elite lawyers and judges who are in the running for a Supreme Court slot tend to be rather more elderly than the average school kid, and so rather less capable of picking up another language. This is a function of human physiology, because ability to learn a language varies with age.

But that is, in essence, the core issue here. It is perfectly possible for people to have, very young, aspirations of all kinds, for which they will prepare accordingly. Either these pertain to education (taking the required math classes), or to social capital (sinking many hours in music teaching). In this country, French - the other official language - never really enters the portrait. If you are an elderly lawyer or judge, and never bothered to learn French, but - as I am suspecting - otherwise sank all sorts of time in all sorts of pursuit, it's not your elderly physiology that is in play. It's the importance you placed on French in a country that is legally bilingual, that has declared itself culturally bi-legal, and for which you have aspirations to speak about the law.

Sure, there are some structural elements to it. Bilingualism tends to be low for all native speakers of English, whether in the US, Canada or the UK. Let's not make it some sort of brain structure problem, because otherwise, you'll have to explain why the sort of educated people I meet in Europe for some reason are able to overcome this difficulty, and educated people in Canada (and to some extent, in the US), don't. Or that utterly uneducated people in Senegal tend to speak at least their language, plus Wolof and French. Uniligualism in the anglosphere is the sort of low-level privilege that comes with people learning your language and you never bothering to learn the other. But, unlike the US, or the UK, Canada has made a choice - under centuries of political pressures - to declare itself bilingual.

At some point, it's also a choice, a choice that most French judges with aspirations for these sorts of careers, have made. No one has done so in order to become "a great linguist" and they dreamt of contributing to the Merriam-Webster. They did so because it's part of the job, and because it's part of a certain idea of one's self. If you'd rather have learned the violin when you were a kid, that's great. If you imagined yourself playing the violin, but never imagined yourself speaking French, I think you ought to curtail your imagination about being a judge in the Supreme Court.

[Jacob]

Yeah, I more or less agree with Oex.

I think it is fair that the highest levels of public service (and many less glamorous ones) include bilingualism as a prerequisite. If that's where you want to go, prepare yourself accordingly. And I think to the degree to which we make exceptions - and a few here and there are fine IMO - we should be making exceptions on both sides, not just for Anglophones.

I feel that's the fairest approach to maintain the deal that is the foundation of our bilingual country.

[Barrister]

Yeah, I more or less agree with Oex.

I think it is fair that the highest levels of public service (and many less glamorous ones) include bilingualism as a prerequisite. If that's where you want to go, prepare yourself accordingly. And I think to the degree to which we make exceptions - and a few and there are fine IMO - we should be making exceptions on both sides, not just for Anglophones.

I feel that's the fairest approach to maintain the deal that is the foundation of our bilingual country.

Nobody goes to law school saying "I want to be a SCC justice".  Or if they do they are fools.  There is just far too much a matter of circumstances.  If I have it right by tradition there are 3 Justices from Quebec, 3 from Ontario, 2 from the West and 1 from the Maritimes.  If you're from the West you could spend your entire career building a tremendously sound CV, but if there doesn't happen to be an opening  when you're at your peak (or if your views don't match with the political party that is in power at the time) then you're just out of luck.  Or even if there is an opening, your views are in line with the party of the day, they still have several other candidates to choose from.

So nobody as a young person, or a young lawyer, is going to learn French with the goal of becoming an SCC Justice.  And once that starts to look like a possibility for some once you're mid-career, you just are never going to gain much fluency.

So what you get are appointments from the small slice of Canadian life that are already french-speaking.

It's not that this is unfair to potential SCC Justices - nobody has a right to be a SCC Justice.  It's that by picking from such a small slice of Canadian society we're getting a Supreme Court that isn't at all reflective of Canadian society at large.


I'm trying to think of an example... it's as if to say that because Canada is such a racially diverse society that every SCC appointment much be of mixed-race heritage, to better reflect that diverse society.  And I suppose that would do a better job than Canada's all-white court (until the most recent appointment).  But it ignores the fact that comparatively few Canadians are of mixed-race heritage, and thus leads to a non-representative court.


Speaking French is obviously important factor in selecting a SCC Justice.  I just don't think it should be an absolute requirement.

[Oexmelin]

I feel that's the fairest approach to maintain the deal that is the foundation of our bilingual country.

...and that's the other issue. The "bilingual country" thing is a myth. Institutional bilingualism is maintained in Canada, with great difficulty, and with quite a spotty record. Some people want to deal away with the myth, because they never liked the myth to begin with. It's tied up for them in all sorts of political issues (and, for some people, in some less savory issues, too). But they have always found allies among people who want to deal away with the myth in the name of efficiency, or realism, or what have you. These people like the myth because they like nice stories, but would rather we  didn't spend money or efforts on it. They certainly don't feel bound by it in any way: bilingual Canada is a dispensable myth. This is one that distinguishes it from all the other ordinary myths that constitute national identity. Think about how multiculturalism has become a foundational myth in Canada - but, contrary to bilingualism, has received tons of attention, and support, and amplification, including in super homogeneous parts of the country.

To be clear: I don't think myths are a bad thing, or are "lies". It's just that there is always a difference between what people describe as "merely symbolic" and what people describe as "core principles".

[Jacob]

Maybe the answer is to make French language education and requirements stronger in the West, then? So more Westerners end up speaking French, thus widening the pool of potential bilingual candidates.

[Jacob]

...and that's the other issue. The "bilingual country" thing is a myth. Institutional bilingualism is maintained in Canada, with great difficulty, and with quite a spotty record. Some people want to deal away with the myth, because they never liked the myth to begin with. It's tied up for them in all sorts of political issues (and, for some people, in some less savory issues, too). But they have always found allies among people who want to deal away with the myth in the name of efficiency, or realism, or what have you. These people like the myth because they like nice stories, but would rather we  didn't spend money or efforts on it. They certainly don't feel bound by it in any way: bilingual Canada is a dispensable myth. This is one that distinguishes it from all the other ordinary myths that constitute national identity. Think about how multiculturalism has become a foundational myth in Canada - but, contrary to bilingualism, has received tons of attention, and support, and amplification, including in super homogeneous parts of the country.

To be clear: I don't think myths are a bad thing, or are "lies". It's just that there is always a difference between what people describe as "merely symbolic" and what people describe as "core principles".

No argument from me. For my part, I like the myth, I think we should push to make it more core, and I think that we - as a country - should put more effort and money into it

[Oexmelin]

So nobody as a young person, or a young lawyer, is going to learn French with the goal of becoming an SCC Justice.

But that's the point I am making. French never appears on the radar of someone with ambitions of being a well-educated laywer, and that's the real failure. It has little cultural traction or capital for the sort of people who become lawyer and who, I am willing to bet, tend to come from relatively privileged background.

As long as we are making a utilitarian argument, we will dispense with French requirements. But it's not a utilitarian argument. It's a political one or it's a symbolic one, one that speaks to Canada-as-a-nation, not as Canada-as-an-output-of-judgments. This isn't the municipal court we are talking about. It's the Supreme Court of Canada. Every time we rehash the utilitarian argument and trot out the "quality of applicant" thing, we make the degradation of French a self-fulfilling prophecy. Why learn it, when you can get to the most symbolic positions of the land without ever uttering a single word of it. A dispensable language. An inconvenience. A hurdle. Well, honnestly, fuck that shit. Pardon your French.

[Barrister]

So nobody as a young person, or a young lawyer, is going to learn French with the goal of becoming an SCC Justice.

But that's the point I am making. French never appears on the radar of someone with ambitions of being a well-educated laywer, and that's the real failure. It has little cultural traction or capital for the sort of people who become lawyer and who, I am willing to bet, tend to come from relatively privileged background.

As long as we are making a utilitarian argument, we will dispense with French requirements. But it's not a utilitarian argument. It's a political one or it's a symbolic one, one that speaks to Canada-as-a-nation, not as Canada-as-an-output-of-judgments. This isn't the municipal court we are talking about. It's the Supreme Court of Canada. Every time we rehash the utilitarian argument and trot out the "quality of applicant" thing, we make the degradation of French a self-fulfilling prophecy. Why learn it, when you can get to the most symbolic positions of the land without ever uttering a single word of it. A dispensable language. An inconvenience. A hurdle. Well, honnestly, fuck that shit. Pardon your French.

I suspect further debate on this point is going to be fruitless for both of us.

[HVC]

Maybe the answer is to make French language education and requirements stronger in the West, then? So more Westerners end up speaking French, thus widening the pool of potential bilingual candidates.

The main problem is that teaching fluency through school alone is hard. As soon as you leave the class you have no reason to speak French, nor do you have many opportunities to hear it. The reason English is so ubiquitous around the word it that it's dominated pop culture for at least a century.