National Column: Top court appointee raises bilingual bar

by Chantal Hebert

As Justice Malcolm Rowe – Prime Minister Justin Trudeau’s first appointee to the Supreme Court – fielded a barrage of questions from MPs and senators on Tuesday, there was nothing to suggest he was not a flesh-and-blood person.

And yet, only a few months ago, a legal creature with Rowe’s attributes was widely deemed to not exist.

Trudeau was deluded, some argued, if he thought he could find a Newfoundland-and-Labrador jurist with sterling credentials and the ability to work in either of Canada’s official languages.

To read and listen to some of the commentary, one might have thought the prime minister had sent his headhunting committee on a quest for a unicorn. It may be that John Crosbie and Brian Tobin are to blame for that impression. Despite spending decades on Parliament Hill, neither of those famous political sons of N.L. managed to become fluent in French – at a cost to their national leadership aspirations.

And yet, not only does Rowe fit the job description, but in 2016 his status as a functionally bilingual non-Quebec jurist does not necessarily make him all that exceptional.

According to former prime minister Kim Campbell, who oversaw the process that led to the short list Trudeau chose Rowe from, more than a few of the applicants her group considered would have been both valuable additions to the Supreme Court roster and satisfied the language requirement.

And yes, they hailed from every region of the country.

It should not come as a surprise that there is a discrepancy between the actual language proficiency of many non-Quebec judges and lawyers and the perceptions of the politicians and pundits who argue that to appoint Supreme Court justices among the ranks of bilingual applicants is to fish in an overly shallow pool.

After almost two decades at the Star, I still do not know exactly how many of my colleagues can handle an interview in French, for we tend to speak to each other in English. Back when I mostly worked for French-language media organizations, the same was true when it came to the other journalists’ proficiency in English.

When it comes to requiring fluency in both official languages to sit on the Supreme Court or, for that matter, to lead a federal party, the real question is not whether otherwise qualified candidates will not be considered, but whether those who are would make the short list if French/English bilingualism was not a criterion.

In the case of Justice Rowe, the answer is yes.

Based on his answers to the NDP and the Bloc QuÈbÈcois Tuesday, a French-speaking lawyer would feel confident that if he or she were to plead in French, Rowe would grasp the nuances of the arguments.

That is not a whim, for nuances and sometimes a bit more than that are often lost in simultaneous translation. Just ask the Senate’s French-speaking members. Most of them stuck to English during the debate over medically assisted suicide last spring for fear of not getting their points across.

Just last week, NDP Leader Thomas Mulcair mocked the prime minister, in French, after the latter called him “le membre.” In street French, the expression can refer to a male private part. That was lost on Hansard translators. They quoted Mulcair as reprimanding Trudeau for having used the word “deputy.”

Rowe’s appointment has put flesh on the bone of the Liberal requirement that applicants for a Supreme Court appointment should be functionally bilingual. At one point, Justice Minister Jody Wilson-Raybould suggested it might not be necessary to speak French and English to meet the criteria.

Rowe’s appointment sets the bar quite a bit higher. There are contenders currently running for Stephen Harper’s succession who could not meet it.

By all indications, the bilingualism criterion for Supreme Court appointments is here to stay. Wilson-Raybould told a parliamentary committee as much this week. It will be hard for future governments to set aside the practice, or for this one to lower the fluency standard it has just set with this appointment.

The next scheduled Supreme Court vacancy is expected to be that of chief justice Beverley McLachlin who will reach the compulsory retirement age of 75 in 2018.

Anyone interested in vying for a seat on the top court should consider that fair warning. He or she has two years to hit the books.

Chantal Hebert is a national affairs writer. Her column appears Tuesday, Thursday, and Saturday.

Copyright 2016-Torstar Syndication Services

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