At first blush, there's intuitive appeal to the idea that Canada's Supreme Court should be able to administer justice in either official language. Perhaps Prime Minister Trudeau was thinking that when in 2016, his government made it a requirement that Supreme Court judges should be “functionally bilingual.”However, things are never so simple and what we hope was an 'unintended' consequence has in fact been to very much limit the choice of Alberta candidates for the country’s highest judicial office.Among the roughly 200 justices who administer the law in Alberta, no more than a handful speak French with sufficient competency to actually conduct a case in that language, and one of them just retired.And why would they be fluent in French? As in much of the country, so in Alberta: It is a charming and desirable social asset to speak French but outside Alberta's four officially bilingual francophone communities or securing student employment at the Banff National Park turnstiles, there is little practical utility in being able to do so. But ah, you say! Canadians have a right to be tried in either official language, so it makes sense that the legal profession at least, should be able to parlez-vous with the best Quebec has to offer. Good point. Except... demanding a trial in French in Fort Vermilion is more a matter of deferring judgment while the system scrambles, than to more effectively plead one's innocence. That's because in Alberta we have excellent translation services available. And translators will go where they must.If this is the case in Alberta, it is even more so in Ottawa where translators are as easily found as hotshot services in Calgary or Edmonton. So really, how much does it matter that Alberta's lawyers must speak French to serve on the Supreme Court of Canada? Even in the highly francophone International Court of Justice in The Hague, they have full translation services and all proceedings are recorded in both languages officielle, with the documents laid out side by side for comparison — 'en regard,' as it's known.Functional bilingualism matters not at all, then.Which leads to the obvious question; what does the choice of a court’s working languages really matter, anyway? It matters like this. The choice of English or French influences a court’s composition, may influence its internal organizational culture and could even influence the substantive law produced. Regarding composition, we see it here in Alberta now. Without in any way impugning the expertise or opinions of the Honourable Madam Justice Mary Moreau, of whom I was quite unaware until news of her appointment broke and of whose judgments I know nothing, the fact is that if they wanted a bilingual judge, they had a choice of only 'a handful.' Yet with diversity being all the rage that it is, would not have Albertans had a better chance of an Albertan point of view on the Supreme Court had the choice been from among a cadre of 70+ King's Bench justices, rather than by a small group defined by their ability to speak French? Or indeed, for other provinces; there is a reason why the Supreme Court is obliged to have regional representation on its bench. (Less clear is why the Supreme Court Act stipulates that one third of its judges must come from a province with less than a quarter of the country's population.)But then, it's not always diversity of opinion that's sought, is it?And that matters too, because should this concentration of cultural commonality ever reach its critical mass, Canadians run the real risk of a francophone judicial culture disproportionately influencing the workings of Canada's courts. There is a difference, after all. Anglophone Canada has a tradition of British common law; Quebec's legal system is based on concepts that survived the British conquest in 1760. Call it French capture. We shall see. For now, this is merely a matter of academic interest. If it is to matter, it will matter when and if Premier Smith is forced to deploy the Alberta Sovereignty Act. Perhaps Moreau will then turn out to be a passionate defender of provincial prerogatives. We must hope so.Perhaps she will also be delightfully deaf to the discreet signals through which the federal government attempts to guide how judges think. Again, we hope so, and harbour generous expectations.But none of this alters the fact that whatever the personal merits of Supreme Court appointees, insisting on functional bilingualism nudges the administration of justice to a unity of vision that is unlikely to work well for Alberta. We wish Moreau well. And by her judgments, we will know her.
