Monday, April 26, 2010

Supreme Court Judges Must be Bilingual

I am moderately concerned about this proposal before the Senate, it has passed the House of Commons.   I am also amazed I knew nothing about it till I read Vaughn Palmer's column.

The idea is that all future members of the Supreme Court of Canada would be fully bilingual.    That is a tall order.   Knowing French and English well enough is to work in the language on a day to day basis is one thing, but to be bilingual enough to be able to work in either language on the Supreme Court of Canada is much more difficult as language and law are so completely intertwined.

To be honest, as someone that is fully bilingual in two languages (German is my first language and English is my second language), I know how very hard it is to translate between languages.  Translating meaning in the broad context is not difficult, it is translation of meaning when precision matters.   I know of many words in German that I can replace in the English language because there is no word that really means the same thing.   I also know that German and English cause different world views within my mind because of what and how each one describes the world around us.

I wish I was very fluent in French so that I could read the French decisions on cases that matter to my work because I would like to know if there is enough difference in the language used to effectively render two sets of precedence to work from.  The English and French words in decisions are not the same, they are partial reflections of each other.

I also wonder how the Surpreme Court of Canada deals with decisions that come from lower courts in a single language?  It seems they translate the words from the lower court when they are quoting the text.   This concerns me because the words in translation are not what the decision rendered actually said, they are a paraphrase in a different language.  All translations are paraphrasings of a text.

Beyond the issue of the inherent problems with translations of legal judgement, the requirement that all future justices are fully bilingual concerns me for much the same reason it concerned Vaughn Palmer in his column, the number of people that could meet the linguistic barrier would be much smaller.   It would be much more of an issue for anglophone lawyers than franophone lawyers, but still, the degree of fluency needed to render decisions in either language would preclude a lot of francophone lawyers.

For myself the biggest issue that comes of this is with decisions in relation to aboriginal title and rights here in BC.   The legal reality of BC with respect to aboriginal title and rights is rather unique in Canada and is only legally expressed in English.  Justices that are not from BC, that have not immersed themselves in the legal issues of First Nations, will be hard pressed to be able to make the decisions that reflect the reality of this province.  It is bad enough that the court does not have a core of Justices from BC, but this new requirement could very well make the issues of BC suffer.  

Extending two languages into every aspect of the Federal government does not make sense.  Canada should come to the understanding that not everything needs to be in both languages.   The Nisga'a Treaty did not need to be translated into French.  I have looked at a few specific passages in the French version to compare it to the English and I can not be certain that there is legal space there for a dispute.  I wish I understood legal French well enough to be able to understand how close some areas are in the two languages.

Another question I would have in relation to the Nisga'a Treaty in French, can the French version be considered legally binding on the Nisga'a if they did not have anyone that could understand it?

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