Debunking the myth: Unilingual judges more competent than bilingual | Agnès Whitfield

Agnes Whitfield

The process to select Justice Michael Moldaver’s successor on the Supreme Court of Canada has fuelled speculation in the legal community about possible nominees and perhaps even some friendly betting pools on the side. Under the process adopted in 2016, an independent and non-partisan advisory board, whose members were announced on May 16, has been tasked with providing the prime minister with three to five names of “suitable candidates who are jurists of the highest calibre, are functionally bilingual, and are representative of the diversity of Canada.”

Commentators are already deploring that the functional bilingualism requirement excludes competent applicants. But what is this “competence argument” really about in the context of requirements for Supreme Court of Canada justices?

Competence as knowledge of an area of law

One interpretation is that competence is being defined as knowledge of a specific domain of law, the suggestion being that a unilingual judge could have a particularly extensive knowledge of his or her specialization, knowledge that could not be replicated by a bilingual colleague. Is the underlying premise that legal documentation in English is somehow more valid or valuable than work in French? This kind of legerdemain would not go down well in the European Community where legal professionals are fluent in several languages. Nor does it fit with the listed requirements for the position that “Candidates for the Court must possess deep knowledge of the law, in particular Canadian law.” Obviously, a unilingual anglophone judge cannot possess deep knowledge of Canadian law, if he or she cannot read the significant part of that law that has been made in French.

Monolingualism inherently makes for greater competence

An alternative interpretation of this “competence argument” is that unilingual judges are inherently more competent, that bilingualism negatively affects one’s ability to understand and reason. This interpretation of competence might tie into the Supreme Court requirement for “superior analytical skills,” “an exceptionally high degree of skill and discernment.” This is another, more dangerous, slippery slope. Does it imply that Marie Curie would have been even more brilliant had she done her work in English? It also defies scientific research that suggests that using more than one language increases brain function. Recent studies even show that bilingualism can delay the onset of Alzheimer’s for several years. Moreover, learning another language brings into sharp clarity the subtleties of language usage, insights that could only assist Supreme Court justices (and all other judges) in understanding testimony and arguments, and enhance, rather than diminish, their analytic skills.

Career aspirations of unilingual anglophone judges

Getting to the root of the issue, why should we be so concerned about the career aspirations of unilingual anglophone judges? No one can expect to be appointed to Canada’s highest court fresh out of law school. According to the Office of the Commissioner for Federal Judicial Affairs, the average age of appointment to the bench is 52-53. Minimally, knowing that functional French is a criterion, aspiring Supreme Court judges have 20 or even 30 years to learn French. They also have free access to language classes. What can we deduce from the fact that they don’t learn French? Given cost is not a factor, the only viable conclusion seems to be they don’t learn French because they don’t want to. In other words, it is not the bilingual requirement that is exclusionary: by refusing to learn French, these candidates are excluding themselves.

But what does their attempt, or that of the people who propose their candidacy, to get around the bilingualism requirement suggest about their ability to satisfy the personal qualities expected of Supreme Court justices: “irreproachable personal and professional integrity,” “respect and consideration for others,” “moral courage,” “ability to appreciate a diversity of views, perspectives and life experiences, including those relating to groups historically disadvantaged in Canadian society.” Can candidates who refuse to learn French really be worthy of an appointment for which it is “crucial that their perspective is neither too narrow nor resistant to change?” Can candidates who refuse to learn French truly “have the capacity to empathize with persons who come from backgrounds that are very different from her own?”

Finally, would unilingual judges have superior writing skills? The position calls for “clarity of thought, particularly as demonstrated through written expression.” Now this issue might provide defenders of unilingual judges with some wiggle room, but it’s short-lived. Linguistic interference can occur among bilinguals, but people using more than one language professionally soon develop techniques for eliminating it. Furthermore, the functional bilingualism requirement does not extend to the ability to write decisions in both languages. Presumably judges would write in the language where they are most fluent.

Time to put this bogus argument to rest  

We’re back to square one — this argument about competence doesn’t go the distance. So, why would part of the Canadian legal community persistently make it, even pitting diversity considerations against bilingualism? Could it be because they don’t want to acknowledge the presence of French in Canada and the Canadian Constitution? Does it hark back to the Anglo imperial days when Britain ruled the waves, with its sadly often successful strategy of divide and rule? But even the Queen speaks French, out of respect for her francophone subjects. That’s the crutch of this whole discussion: respect, respect for Canadian law.

Significantly, this unilingual “competence argument” is never made by francophone judges, who consider knowing English and French is just part of the job. It’s time to put this bogus argument to rest, once and for all.

Agnès Whitfield is professor of English and French at York University. She holds a doctorate in Quebec literature from Laval University and is an ardent defender of French-language rights in Canada.

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