A Supreme Folly

Last August, Prime Minister Justin Trudeau announced that, in future, only candidates who are "functionally bilingual" in French and English will be recommended for positions on the Supreme Court of Canada. With the information released subsequent to the nomination of Malcolm Rowe to the Court, we now have some sense of what this means. At a minimum, a functionally bilingual candidate should be able to read and understand court materials in both English and French, as well as discuss legal matters with their colleagues, converse with counsel in court and understand oral submissions in both languages. 

Realistically, it is hard to imagine anyone being able to understand complex legal reasoning in both official languages - and, furthermore, to demonstrate convincingly that they had the ability to do so - unless they already had some experience using both English and French in a work environment. Yet opportunities to function in both French and English are unevenly distributed across the country, raising the possibility that the new bilingualism requirements will significantly alter the pool of potential Supreme Court appointees.

To get some idea of how requiring functional bilingualism will change the face of the Supreme Court, I used the public use micro file (PUMF) of Canada's 2006 Census to estimate just how many people use both official languages at work on a regular basis, and thereby gauge the percentage of workers who are currently functionally bilingual. Table 1 shows my estimates, based on a sample of over four hundred thousand Canadian workers between the ages of 25 and 75, of the percentage of Canadians who regularly use both official languages at work.

The point of this table is that there are huge regional disparities in the use of Canada's two official languages in the workplace - and hence in the opportunities to acquire and maintain functional bilingualism. Fewer than two percent of people living west of Ontario or in the territories use both English and French in the workplace on a regular basis, compared with 30 percent of people living in Quebec.

Now it could be objected that these numbers include all workers from truck drivers to taxidermists, hence are of limited relevance when thinking about the bilingualism of potential Supreme Court nominees. Unfortunately the Census public use micro file cannot used to assess directly the language capabilities of lawyers, because it does not contain sufficiently finely-grained educational and occupational information. However, it is possible identify a group of Census respondents who are, if not lawyers, at least "lawyerlike", and find out how many of these are likely to be functionally bilingual.

"Lawyerlike" respondents to the 2006 Census are people who:

• are between 25 and 75 years old
• are employed or self-employed
• are Canadian citizens or landed immigrants
• if immigrants, moved to Canada before age 20 (while this restriction eliminates some lawyers, it eliminates more non-lawyers)
• have as their highest level of education a bachelor's degree, a master's degree, or a university certificate or diploma above the bachelor's level
• studied "Social and behavioural sciences and law" in their highest degree
• work in occupational category "E0: Judges, Lawyers, Psychologists, Social Workers, Ministers of Religion, and Policy and Program Officers" or "E2: Paralegals, Social Services Workers and Occupations in Education and Religion [excluding teachers and professors]"
• earned over $40,000 a year in 2005 (broad definition), over $80,000 a year (middle definition), or over $100,000 a year (narrow definition).

 Of the 530,231 respondents between the ages of 25 and 74 in the public use census microfile, just 2,488 are "lawyerlike" in that they meet all of the above criteria. If we restrict our group to those earning $80,000 a year in 2005, just 1,228 are lawyerlike. So while the lawyerlike group encompasses other professionals, like social workers, it is selective enough that the language capabilities of this group should be broadly indicative of the functional bilingualism of the Canadian legal community.

So just how many of these lawyerlike respondents are demonstrably functionally bilingual? Table 2 gives some indication:

 

Comparing Table 2 and Table 1, what is striking is that, when we narrow down our focus of analysis to more professional, lawyerlike workers, the number of people using both English and French in the workplace rises dramatically in Quebec, from 30 percent to 43 percent of workers. It also becomes non-trivial - around 14 to 16 percent - in the Atlantic provinces and in Ontario. Yet in the West and the North, there are still only around two percent of workers reporting using both French and English regularly in the workplace - an increase of just 1/2 of one percent over the number reported in Table 1.

It could be argued that the numbers in Table 2 over-estimate the extent of bilingualism within the east-of-Manitoba legal community. The "lawyerlike" group identified above includes, for example, federal government policy and program officers, who are much more likely than the typical Canadian to have a bilingual workplace.

One way to narrow the "lawyerlike" group down, and make it more representative of potential Supreme Court nominees, is to take advantage of the fact that top-ranking legal professionals typically have relatively high earnings. Table 3 attempts to eliminate some of the non-lawyers in the "lawyerlike" group by focusing on just the functional bilingualism of lawyerlike people with market incomes (i.e. earnings plus investment income) above $80,000 a year in 2005. 

 

With this narrower definition of "lawyerlike", the regional differences in functional bilingualism become even more pronounced. Over half of the Quebec respondents in this more elite group of lawyerlike individuals used both French and English in the workplace regularly, compared to fewer than two percent of those in the West and the North.

An even more refined definition of "lawyerlike" individuals would include only those with market incomes above $100,000 in 2005. When I repeated the analysis for this group - comprising just 938 respondents - I obtained very similar patterns of language use to those shown in Table 3. Over half of elite lawyerlike respondents living in Quebec use both French and English in the workplace, compared to fewer than 2 percent in the western and northern parts of the country. 

When Prime Minister Justin Trudeau's government announced the new functional bilingualism requirement for Supreme Court justices, it also reiterated its commitment to nominating appointees who reflect a diversity of backgrounds and experiences. Yet it will face hard trade-offs between diversity, excellence, and bilingualism. Even if the numbers reported in Table 3 seriously underestimate the extent of functional bilingualism in Western Canada - even if there are, say, five times as many functionally bilingual lawyers as these numbers suggest - the new bilingualism requirement will eliminate around 90 percent of potential Supreme Court nominees from the West and the North. It is hard to believe that it is possible to reduce the size of the candidate pool so dramatically without compromising either excellence or diversity or both.

Achieving French-English bilingualism requires appropriate opportunities, as well as ability and effort. While linguistic abilities may be fairly evenly distributed across the country, opportunities to learn both French and English are not. A family in Trois-Rivières can provide their children with a 100 percent English-immersion experience by driving three hours to northern Vermont. For a Vancouver family, the nearest authentic French-immersion experience is a four-and-a-half-hour flight away. For people whose first language is either English or French, achieving bilingualism requires learning a second language. For the many Canadians who grew up speaking a "non-official" first language, achieving functional English-French bilingualism means mastering three languages, not two. Since visible minority, Aboriginal and immigrant Canadians are disproportionately likely to have a non-official first language, it is particularly challenging for them to achieve French-English bilingualism.

In Table 4 I show just how much external and cultural factors influence achievement of bilingualism. Because I want to widen the scope of the analysis to include issues relating to identity, I use a broader definition of bilingualism here, categorizing anyone as bilingual if they can "speak English or French well enough to conduct a conversation". The best way of thinking about the numbers in Table 4 is as a measure of the pool of people who could, with sufficient effort, potentially become functionally bilingual. By way of contrast, the earlier tables were trying to get at the number of people who are currently functionally bilingual.

  

Unsurprisingly, immigrant, visible minority and Aboriginal Canadians are significantly less likely than the rest of the Canadian population to be bilingual in both French and English. What is perhaps more interesting, however, is the interaction between region of residence, ethnic identity, and bilingualism. In Quebec, immigrant and visible minority Canadians are actually more likely than the rest of the population to be bilingual, whereas in the Rest of Canada, the reverse is true. Fewer than one in twenty visible minority Canadians outside Quebec is capable of holding a conversation in both English and French.

I presume that the idea of a having functionally bilingual Supreme Court is to promote better and fairer decision-making: any case could be heard by any judge, thereby eliminating any systematic disparities in judgments that could arise if only certain judges heard certain types of cases. Those appearing before the Court would be free to use their language of preference, either French or English, without worrying that their case could be compromised.

Yet while, as an ideal concept, a bilingual court promotes inclusivity, the reality is elitist. Only certain people, who have had access to certain experiences throughout the course of their life, are ever likely to meet the bilingualism requirement. Yes, functional bilingualism will ideally mean that those appearing before the court have a genuine choice of language (as long as that choice is French or English). Personally I am more concerned about the choice of judges. It is cold comfort to a person appearing before a court without deep knowledge of western Canadian institutions or constraints, without visible minority or Aboriginal representation, without a single member who has a science or mathematics background, to know that their position can be imperfectly comprehended in either official language.

File containing the stata code used in this analysis here:  Download Stata code for bilingualism post

Comments

[Nick Rowe]

Neat exercise in squeezing information out of unsatisfactory data. Better than just saying it can't be done.

[Frances Woolley]

Thanks! My guess is actually that the lawyerlike group overstates the functional bilingualism of the legal profession in the West, if anything, because it includes federal policy/program officers and also probably a lot of public servants in Manitoba, which is a bilingual province.

[Avon Barksdale]

Very nice post Frances! I especially like the inclusion of the Stata file (although I wish more economists would use R because of its open source nature).

I think the problem goes deeper than the Supreme Court – it colours the whole of the civil service. While it is important that Canadians can access federal services in either official language, that doesn’t mean that the entire management structure of the civil service must be bilingual. But, if we look at how the federal government applies is bilingual work policies, it is nearly impossible for anyone to rise in the civil service without bilingualism, even if the entire work group operates in English and never interacts with the public. Since most civil servants work in “bilingual designated regions” (e.g., the NCR) management in the civil service is about 50% francophone, and a large fraction of the remainder are from the bilingual belt of Ontario, Quebec, and New Brunswick. The management within the civil service is increasingly becoming a function of where you were born.

When I see phenomenon like this, I think economics. Integrated over the entire economy, the economic return for a francophone to learn English is large, but the economic return for anyone else to learn French is small. Regardless of how much people say we need to increase bilingualism, it’s hard to change the equilibrium of an economy. Learning a language is difficult for most people. If they are going to invest large amounts of effort in something, there needs to be a high enough expected return over the entire opportunity set. There just isn’t with French. A policy that requires bilingualism for advancement – Supreme Court or otherwise – will largely select francophones who’ve learned English.

Intended or not this policy generates rent seeking. By creating artificial barriers to entry within the civil service, the “bilingual elite” have captured part of the government, which elevates total compensation of the civil service by creating shortages out of plenty.

[Jacques René Giguère]

As St Reagan would say:"Here we go again."
The relevant subset is not "How many people in "pick your field" there are but "how many in the tiny weeny subsubset of those who will go places."
Because it's the same in all fields but since it's about the Supreme Court, let's go there.
At the end of your first or second term where you got all straight A++, an old prof will casually invite you in her office to talk about one of your paper.
A couple of months later, same invite but by pure happenstance, one of her former students, now working at (large corporate firm, department of Justice) will be there. No reasons whatsoever.
A few months later, another ,older prof invite you at the faculty lounge wher,yes, an other former students,now "partner, deputy minister just happens to be there and join the conversation.

Didn't happened to you? So you have not been touched by the hand of god. Go marry that nice accountant you met at frosh week and inherit your uncle real estate practice in Prince Albert-North Battleford. Raising a solid family in a nice environment is a noble avocation.

But if the hand touched you, just get along with the program.

Learn (and you will have help, god really help his little children who will make it to the top) the difference between the fish and the cake spoons, the difference in shirts lapel width and the proper tie knots (the double italian is quite nifty), wines and stuff.
Don't worry, you still have time, about twenty years till your career become public.
Read Le Devoir. No need to fret whether you understand or not. Unlike french wines and cheeses, it's merely french thinking and therefore unimportant except that you did it. That the QC Civil code is written in french is irrelevant to you having the final say in interpreting it. After all you have such a fine judicial temperament.

You never hear :"Tom was such a fine pilot. So sad he slammed his 747 into the mountain as he didn't heard control warning him because he was deaf." Because you don't fly 747 if you're deaf. It's called qualification, not discrimination. There is a difference. It may even save your life.
You can study kurdish folk dancing instead of finance and accounting but don't complain that you were passed over as RBC CEO.

As The Economist wrote in 1987:"Canada is the only country in the world where speaking french doesn't mark you as a member of the ruling class."

And yes, Canada's upper echelons are totally and unjustly populated by bilingual francos (and women who slept their way to the top, relly,really sorry for the snark).

[Frances Woolley]

Jacques Rene -

Yes, delivering bilingualism does result in the overrepresentation of native-born Canadians and Francophones in, e.g., the federal public service. And I have little problem with that.

Yet there is a difference between requiring some basic level of bilingualism - which I agree with you should be a qualification - and requiring that all Supreme Court appointees be able to hear Supreme Court cases with equal competency in either French or English. I would argue - and correct me if I'm wrong - that this is a level of bilingual competency in excess of what we require for, say, our federal political leaders - and they typically have lots of opportunities to spend a lot of time in Ottawa and in both francophone and anglophone parts of the country before assuming their positions. It is such a stringent bilingualism requirement that it produces an unacceptably small pool of potential candidates from the West, and also from visible minority and immigrant communities.

I'm not worried about the fact that there's over-representation of francophones on the supreme court. Given Quebec's different legal tradition, the importance of Quebec and language in constitutional cases, etc., that's o.k. What I am worried about is the fact that we're basically shrinking the pool of potential Supreme Court nominees from the West to about 1 or 2 percent of the legal community.

[Jacques René Giguère]

Frances, my point was that only those touched by the hand need to act.
You will be in a big office in Calgary. They will handle cases with some firms in QC. Ask to be on that case. Be the expert in your office. Volunteer for the horrible task of sampling Montréal and Québec City restaurants.
Meanwhile, get RDI,RC and TVA in your cable package. Watch CBCNews and then RDI and reverse the next month. Just once in a while,you have twenty years. And let's face it: dramas and comedies on RC (and now TVA) are usually better than on CBC and CTV as your best talents go to LA and NY. (Theater is different, canadian talent is real good).
But let's stop pretending that not being named PWC CEO because you didn't study accounting is discrimination.

[Frances Woolley]

Jacques Rene -

"You will be in a big office in Calgary. They will handle cases with some firms in QC. Ask to be on that case. Be the expert in your office. "

If only that was the case! This post was motivated by the personal experience of one lawyer in particular - a lawyer who has strived very hard to be functionally bilingual, and even was functionally bilingual in his twenties - but has lost it because either (a) there simply are no cases like that or (b) when there are QC cases, they end up being conducted in English, for the same reason that you and I are having this conversation in English - if there is one person in the room who can't speak French, and that person is important to the conversation, everyone else accommodates by switching into English.

Watching French radio and TV is enough to maintain basic bilingualism - tetes a claques is a big favourite in my family - but it won't help achieve the level of linguistic competence required to hear oral submissions in the Supreme Court of Canada.

And honestly, if you were being interviewed for a court position, and they asked you about your experience in English, and you said "I watch CBC news every night" how far do you think you'd get?

[Patrick Griffiths]

I suspect this is Trudeau throwing a bone to some group he feels he must appease. All Governments do it.

If something isn't sustainable, it won't be sustained. Practically, is any Government going to risk alienating e.g. AB and BC by not appointing a SC judge from the West when it's their turn on the basis that they don't have a candidate that speaks French well enough?

I suppose anything is possible... just doesn't seem very likely to me.

[Avon Barksdale]

Frances

You have little problems with the over representation of francophones and native born in the civil service, but I have little problem with the over representation of men and non-native born men at the research chair position.

In both cases merit is more important to me than equality.

Nothing is going to change the fact that learning French on a cost benefit scale is not worth the effort in Canada or North America, but learning English sure is.

As Larry Summers puts it,

"English’s emergence as the global language, along with the rapid progress in machine translation and the fragmentation of languages spoken around the world, make it less clear that the substantial investment necessary to speak a foreign tongue is universally worthwhile."

Unless of course a government creates an artifical demand.

[Jacques René Giguère]

Frances:And honestly, if you were being interviewed for a court position, and they asked you about your experience in English, and you said "I watch CBC news every night" how far do you think you'd get?"
Nowhere. Though if you are asked what's your knowledge of french and you answer "None", it leads you to the Supreme Court.

Avon:I was under the impression that in Canada english and french are local languages.
One could get rid of the problem by letting us go but when we try, we are told"We love you and if you leave, we will kill you".

I'd rather go to the US than the ROC. In both places I am a foreigner. At least in the US, I am a valued foreign customer if only for my money.
In the ROC, not always but often enough , I am reminded that I am a (ah no, I won't use these words, just that not that long ago we were told to "speak white").
As for english being a "world language", God will it be fun 30 years from now when you will a have a chinese foreman...I think I will happily learn mandarin just to join the fun.
Anyway, it would be far more honest if the Parliament were to vote to abolish french, cancel my citizenship and declare my living area a reserve for savages.
At least "Little Bateesse" would be spared the paternalist lectures...

http://www.poemhunter.com/poem/little-bateese/

I just canceled a couple of paragraphs. I am too tired. It's not easy living in a country where your cocitizens wish you didn't exist.

[Frances Woolley]

Jacques Rene -

"Though if you are asked what's your knowledge of french and you answer "None", it leads you to the Supreme Court."

No, it does not. There's a world of difference between having some kind of basic level of French competency and being able to function at a high level in both French and English.

"It's not easy living in a country where your cocitizens wish you didn't exist."

No. Really, no. Just no. Don't even think that.

People have right to be heard in the Supreme Court in French. The exercise of that right requires that some minimal number of judges be fluent in French. Similarly some minimal number of judges must be fluent in English. But that does not imply that every Supreme court justice must be functionally bilingual.

[Avon Barksdale]

In full agreement, Frances. French Canadians must be able to access federal services completely in French. But the government doesn't need to cook the sausage bilingually.

[Jonathan Wiley]

Frances-
Are you saying that this new policy is itself elitist? If so, does the elitism apply to the inspiration (not understanding the challenges that non-elites face), the intent (trying to keep non-elites off the Court), or impact(making it harder for non-elites to get on the Court)? Maybe I'm nitpicking over semantics, but I think the distinction is worth making. I can't help but imagine if "elitism" were replaced with "sexism." Would you call the research chair policy sexist or would that label seem unfairly or counterproductively inflammatory? Do you think any of these distinctions even matter?

[Bob Smith]

Jacque,

You're just wrong. This should be self-evident There are almost no opportunities for a lawyer in English Canada to argue a case in Quebec - most aren't called in Quebec and when clients have a Quebec case they, quite sensibly, hire a Quebec lawyer.

In my career, I'm aware of one case where that happened - a major corporate oppression case involving one of our big companies - where I had friends who went to Montreal to work on the file. Of course, that kinda proves my point, that case was argued in English since, neither of the parties spoke French.

Even if lawyers were really enthusiastic about practicing in French, outside of Quebec there is no demand for that skill set.

Great Post Frances.

[Frances Woolley]

Jonathan: " If so, does the elitism apply to the inspiration (not understanding the challenges that non-elites face), the intent (trying to keep non-elites off the Court), or impact(making it harder for non-elites to get on the Court)?"

Good question. I would say most definitely the first and the third. On the first see, e.g., the conversation between my old friend Jacques Rene and myself above. He's saying "why don't they put in the effort required to become functionally bilingual?" and I'm saying "it's just about impossible to do that out West".

"Sexist" is a word I very rarely, if ever use, but if you were to replace "sexist" with "structural discrimination against women" I would say there is structural discrimination in the CERC program also. Certainly in impact, as all but one of the 27 or so chairs appointed so far have been men. And also to the inspiration - I think if you had said to the people who started the CERC program "no matter what you do and how hard you try, just about every single one of these chairs will go to men" they would have been astonished.

Because you're right, it is very much the same issue. The one difference is that Canada could function quite happily without a CERC program. We'd struggle a bit more without a Supreme Court.

Though I should be nice - today a (male) CRC is buying my lunch. Does that count as gender equity?

[Guillaume]

Don't try to rationalize it. There should be a price for the failure of English Canada to produce enough bilingual employees. Unilingual Canadians are inapt to hold the most prestigious functions in the Canadian public service, period. The fact that so many of the current holders of these offices are incompetent should be a national disgrace. The writing has been on the wall for close to 50 years with the Official Languages Act, there is no reason the English Canadian education system, workplace and the federal public service have been incapable of delivering more bilingual native English speakers should concern us all about its overall competence. If the "returns" to learning French are too low in Canada, perhaps we should raise them by systematically blocking all unilingual people from high office.
In the case of the Supreme Court, all Quebec justices (including a few native English speakers) have been bilingual since its inception. Being able to speak French should be the same as being able to speak Legalese. Several cases have been put forward where translation was simply incapable of delivering the legal arguments well enough for unilingual judges to make a fair decision. This is an important issue, particularly for non-Quebec francophones, whose common law cases have to be argued in front of a non-French speaking majority.
Anybody who's familiar with the way language works in Ottawa knows that the lowest level francophone employee is expected to be fully functional in English from day one. And all of them become bilingual, even if it takes them immense efforts. No, they don't do it for pleasure or for the "global" attraction of English, they do it to work for their own government. And they often come from places just as French as Moose Jaw is English-speaking, it's not any "easier" for them.
In fact, after working in English for so long, it is not uncommon that francophones become incapable of mastering the technical terms of their trade in their own language. When they stay capable in French, they are often burdened with the unglamourous work of translating everything for public consumption, while their unilingual colleagues are spared and can focus on advancing their careers. This is the result of our government "cooking sausages unilingually".
This is what structural discrimination looks like in Canada. Now you understand why I won't shed tears for the poor Calgary lawyer who won't make the effort to learn French.

[Avon Barksdale]

Guillaume,

Let’s try to take the emotion out of this issue and argue from a dispassionate position.

First, English is not just another language. It is the most important language ever spoken on planet Earth – even more important than Latin. All major business is done in English, all top journals in science, mathematics, and economics are in English. All the most influential textbooks in nearly every discipline are written in English. Trade deals across the world are completed in English. So of course fluency in English is important in Canada’s federal government - it’s important in every government’s civil service the world over. Given the dominance of English, the economic return to having at least some fluency in English is enormous. If there was only one skill that you could give to a random person on planet Earth which would have the largest effect on income, that skill would be fluency in English.

Even if we made high level bilingualism a requirement for all civil servant jobs it still would not increase the return to learning French in Canada. To become reasonably fluent in a second language, the typical person needs to spend about about 2,000 hours using that language. And that’s just at the conversational level – you would need much more time than that to understand complex legal arguments. For 2,000 hours of effort the return to French in English Canada does not compete with learning other skills or earning extra certifications (or just leisure). A CFA has higher expected return than being able to read Le Devoir. But the opposite is true for French Canadians. The return to spending 2,000 hours to learn English has a large effect on lifetime earnings.

We have an asymmetry that has nothing to do with Canada or Canada’s political arrangements. One of the two official languages happens also to be the most important language in the history of the world. That situation creates an equilibrium under which most English Canadians will not learn French, but a large fraction of French Canadians will learn English - whether Quebec were independent or not. Forty years of official bilingualism has not increased the fraction of bilingual English Canadians. It’s just economics, it's just a Nash equilibrium.

The increasing francophone character of the management cadre in Canada’s civil service results from that asymmetry intersecting with workplace language policy. While it will always be the case that Canada’s civil service will have an overrepresentation of francophones to ensure complete bilingual access to federal services (and I am in full agreement with that policy), the asymmetry with the current language policies will push the francophone representation well beyond what is necessary to achieve bilingual access. As a result, Canada’s civil service is more native born (minus aboriginals), and much more white than our population.

We are all for diversity until we aren’t.

[Guillaume]

Avon, please don't tell me I'm being emotional. I had one point: unilingual people are unfit for positions of power in the federal public service. The fact that English Canada fails to produce them in sufficient numbers is not my problem; if any given territory were to fail in teaching math or science, it wouldn't be my problem either. They should reap the results in the workplace, pay the price for it. There's more than 2000 hours available to teach anything from elementary school to university, it's simple resource allocation. That's economics.

But of course this is Canada. As you probably figured out, I'm a public servant myself. I can tell you that white, unilingual English-speaking senior public servants are doing quite well. Also, don't make this a diversity issue when it isn't. I have probably seen the opposite in action, with "non-white, non-native" employees often putting more efforts to master French than their lily white counterparts.

I'll go with Jacques-René here: if you don't think the Official Languages Act is good policy, why just not call for its repeal instead of tip-toeing around the issue and making excuses about English Canada's failure to adapt? That would be the rational thing to do.

[f chaumaz]

“There's more than 2000 hours available to teach anything from elementary school to university, it's simple resource allocation”

This, it seems to me, goes back to that incredible finding that unilingualism persists in the West even as you climb the education and income ladder. It has always saddened me that Canada is probably one of the only school systems in the world (or at least the world wealthy enough for full, functioning educational systems) that does not require at least an attempt to learn a second language. Even PhD’s in social sciences & humanities (outside Quebec, of course) are not required to be minimally functional in a second language, any second language. I surmise that the polarizing French/English debate has contributed to this overlooked weakness.

The idea that the investment in learning a second language is not worthwhile because of the promise of machine translation (still in the realm of science fiction) and because the world now speaks English is a common misconception, quickly dispelled when one’s work takes us abroad (without the kind of status and supreme self-confidence that shields – I would even say blinds - someone like Summers). Impoverished international English only gets one so far: I have noticed that the level of debate and discussion rises several-fold when you have a multi-lingual group (common in Europe) where each speaks her or his language with all the subtleties and nuances, and the others understand.

Full disclosure: this comes from someone who came to Canada from the US, got a wonderful, desirable, well-paying job here because my American public school offered a foreign language, my university required another, and my PhD program required two. I am happy, but I am still stunned that our (yes it is “our” for me now) education system was not able to produce what was needed to ensure a Canadian got the job that I took, and that this is often still the case – we too often have to hire Americans because too few anglophone Canadian PhDs are unable to function even minimally in French.

Meanwhile, I see no good solution for the Supreme court. Anybody know what they do in Switzerland (four official languages)?

[Frances Woolley]

Guillaume: " I had one point: unilingual people are unfit for positions of power in the federal public service."

You're perfectly free to make this point, but it's of limited relevance to the discussion here.

The bilingualism requirement in the Supreme Court is imposed *at the time that Supreme Court justices are hired*. The parallel in public service terms would be to get rid of the whole language training apparatus, and require that all public servants be able to function in both English and French at the time that they are hired.

As far as policies go, this would actually be *more* reasonable than requiring Supreme Court justices to be functionally bilingual. The public service typically recruits people at a fairly young age, i.e. in their 20s. We know that bilingualism levels are relatively high when people are in their teens or 20s, and coming out of French/English immersion programs, and then drop off as people age. If the public service was recruiting directly from university, they probably could find a fair number of bilingual people from across the country and bring them in. It would be worth it for economists or policy people to take a French/English language minor in university in order to qualify for that public service job. If everyone started off with a reasonable level of bilingualism, and was expected to work in both languages from day one (or at least day 1000), then the problems you're identifying would disappear.

But imagine if you were trying to recruit at a senior level - i.e. looking for someone in their 50s or 60s to fill a senior position - and you could only get someone who was able to function in both official languages at a high level. It would reduce your applicant pool pretty dramatically, wouldn't it? Most people just aren't going to spend a good chunk of their adult life practicing their language skills in the hopes that some day the Supreme Court will come knocking.

For a management position, when people were expected to be able to supervise staff in both French and english, I'd be prepared to say "o.k., this is a reasonable requirement", even if it does radically reduce the pool. But it is not necessary that every Supreme Court justice be able to hear cases in both French and English - there are enough cases to keep a couple of unilingual judges busy. And at this point we have to say "is it worth sacrificing excellence/diversity for the sake of getting bilingual judges?" And I would say "no, it's not."

[Frances Woolley]

f chaumaz: "It has always saddened me that Canada is probably one of the only school systems in the world (or at least the world wealthy enough for full, functioning educational systems) that does not require at least an attempt to learn a second language."

That would be a good subject for a blog post: "Why is Canada's language education so crap?"

Lack of suitably qualified teachers? Rigidities created by unionized school systems which make it difficult to bring in suitable staff? Large numbers of ESL students? French immersion programs that effectively limit access to French language instruction to those able to get into and cope with that immersion system? Problems with early French immersion as a language acquisition program? In parts of the country, parental/student resistance to learning French, which is not seen as a useful skill?

[Avon Barksdale]

Frances,

"Why is Canada's language education so crap?"

It’s just economics, Frances. It's just rational expectations. Forty years of bilingualism has not changes the proportion of bilingual English Canadians. The returns to French are too low. The returns to any language other than English are low. This is the Nash equilibrium of a game – no wonder it persists! I am suspicious of “young people bilingualism” in Canada. These numbers are generated in the NHS from households with a teenager in high school taking French and the parents answer “Yes” to having a bilingual family member. Those teenagers can’t converse in French, regardless of what their parents think.

Suppose you want to go into machine learning and you are and English speaker. All the important papers are in English, all the research is done in English, all the seminal textbooks are in English. If you are English, and interested in machine learning, the only reason to learn French is out of interest. If you are French and you are interested in machine learning, you have to learn English to learn machine learning!

Now suppose the government of Canada needs machine learning expertise, say to catch nefarious people who wish to do harm to this country. If you have a great candidate who will contribute deeply to that mission, is it reasonable to reject based on knowledge of French? Recruiting at that level is from after grad school and possibility after postdoc work – whatever bilingualism the English candidate had, it’s long gone. This issue is not just about 50 year old senior hires. French has nothing to with a machine learning approach to public safety. All the French Canadians who could compete for that job would speak English fluently otherwise they wouldn’t know machine learning. The entire work group would function in English day-to-day and they don’t interact with the public. Even if you sent the English candidate to learn French, on the margin, wouldn’t it be worth more to keep incrementally improving her machine learning knowledge with that time than to get her to conjugate verbs in a language she will never use at work? What’s the point of insisting on bilingualism in this setting? Do we want our English speaking Alan Turnings to help us or not? The civil service of the 21st century will require grad level machine learning far more than the policy wonk paper shufflers of the last century.

Official bilingualism was not meant to force anyone to learn English or French, even when applied to the civil service. It was meant to ensure that Canadians could access federal services in either French or English. There is of course a large economic pressure for French Canadians to learn English. The application of the language rules for civil service promotion started to change after the 1995 referendum. This change has lead to an explosion of the number of francophones in the leadership of the civil service well beyond the francophone fraction of the population and well beyond what is necessary to deliver bilingual service to the country. This is a recipe to get a skills deficit.

As far as the Supreme Court justices go Frances, this is just the continuing extension of those policy changes. Expect more.

[Jonathan Wiley]

Neither requiring bilingualism in schools nor requiring it in the legal world would be all that extreme. There are examples of similar policies in other countries and in other disciplines.

Many graduate schools have foreign language entrance requirements. When I was planning to study for a doctorate in math, I knew that I would need to have a basic understanding of two languages out of German, French, and Russian. The basis for this requirement is the importance of research journals and the impracticality of translating these copious technical works. I think the same applies in the case of Canadian law, so I don't think it would be at all weird for law schools to require a specified degree of ability in both languages. In any case, don't law schools usually try to base their entrance requirements around measurements of generalized intelligence? If the country provides reasonable opportunities for learning a second language, then bilingual fluency would fit perfectly with the law school ethos. Back in the day, people displayed their intelligence by learning Latin, so this isn't really a new idea.

On the issue of public schooling, I'm from the US, so I know how ineffective North American language studies can be. Apparently, the Europeans have overcome that issue, so it's definitely possible. In a rather extreme case, Luxembourg has a completely trilingual school system for all native-born children. In Luxembourg, different grade levels are conducted in different languages, which totally shocked me the first time I read it. Here’s an article about the Luxembourgish education system: http://www.unavarra.es/tel2l/eng/luxembourg.htm

Canada could theoretically adopt a multilingual system like the one in Luxembourg, but that would obviously be highly radical. However, Canada already has parallel education systems, right? So theoretically, some sort of program for switching between English-language schools and French-language schools would have the same effect. In any case, spending a year or two in a part of the country where the language is different seems like a worthwhile activity that should be encouraged as much as is feasible (ie. Quebec can only hold so many Anglophone kids).

When it comes to any sort of universal bilingual fluency requirement for students, I would personally want to see a few exemptions. The first would be for anyone who spoke an indigenous language. After all, the basis for these laws is the protection of established communities from linguistic conquest, which the First Nations suffer way more than anyone else. The second would be for immigrants whose first language is neither English nor French. The effort of learning just one of the two languages is often large and demonstrates a strong commitment to being part of Canada.

But, I’m not Canadian (although my grandfather was born in Medicine Hat, Alberta), so my opinion doesn’t mean anything.

[Frances Woolley]

JOnathan: "I think the same applies in the case of Canadian law, so I don't think it would be at all weird for law schools to require a specified degree of ability in both languages."

Actually, no, because Quebec has a French-type (civil-law) legal tradition while the Rest of Canada has an English-type (common-law) legal tradition. So bilingualism is not always required to understand provincial-level case law. Federal judgements are translated into both French and English, as is all federal legislation. So it's not clear why lawyers would need to be bilingual. Look at the estimates above - in the West, which includes the bilingual province of Manitoba, only about 2 percent of people working in lawyerlike professions have any reason to use French at work on a regular basis.

Given this, I think it would be kind of weird for law schools to require a specified degree of ability in both English and French. Statistics, on the other hand - that I could see.

[Bob Smith]

"It has always saddened me that Canada is probably one of the only school systems in the world (or at least the world wealthy enough for full, functioning educational systems) that does not require at least an attempt to learn a second language."

What, since when? I can't speak for other provinces, by French classes are mandatory in the Ontario curriculum. If "an attempt to learn a second language" is the test, Ontario's education system satisfies that.

Also, not for nothing, but there are lots of Canadians who speak a second language (other than English), it's just it usually isn't French. Almost 50% of Torontonians have a mother tongue other than English and French - almost a third speak that language at home. French is something like the 20th most common "second" language in Toronto - if memory serves, just below Tagalog.

[Bob Smith]

"I had one point: unilingual people are unfit for positions of power in the federal public service."

Hmm, any bets on how popular that position will go over with the unilingual people who make up the vast majority of the Canadian population?

"In the case of the Supreme Court, all Quebec justices (including a few native English speakers) have been bilingual since its inception."

Yeah, so? The Quebec legal community is largely bilingual because, many of their clients speak English. This is not just because Quebec has a large (and, historically, disproportionately wealthy and influential) Angl-phone community, but also because it serves national and international clients whose lingua franca is English. Take, for example, Justice Cote, formerly the head of litigation at Oslers (if my memory serves). A huge portion of her client base would have been big Canadian corporate clients and US (and other international) clients who speak English. I have Francophone colleagues in Montreal who practice almost exclusively in English, because that's what their clients speak.

I'm going to put it out there that there are few - in many regions and practice areas, no - lawyers in English Canada who have a significant French speaking client base. Maybe in parts of Eastern Canada, Manitoba and NB, there will be some. Ditto, in those regions there will be some family and criminal lawyers who practice in French - there are going to be no big corporate/commercial lawyers, bankruptcy lawyers, competition lawyers, tax lawyers, who fit that profile. Even if those lawyers in English Canada wanted to practice in French, they have no opportunity to do so.

That fact has to inform the discussion. To make the argument that Quebec judges do it, why can't you, is like the kid who grows up on a country club saying "I can play polo, why can't you?" It's about opportunity. Short of compelling 27-odd million Canadians to go about their lives in French, there's no real opportunity for lawyers in English Canada to practice in French.

"Being able to speak French should be the same as being able to speak Legalese. Several cases have been put forward where translation was simply incapable of delivering the legal arguments well enough for unilingual judges to make a fair decision. This is an important issue, particularly for non-Quebec francophones, whose common law cases have to be argued in front of a non-French speaking majority."

Except this criticism ignores the dynamic of SCC decisions. It's not as if each judge comes to their own decision, they talk to one another, and as a practical matter the unilingual judge isn't likely to be the one writing the judgement (or the dissent).

Moreover, you inadvertently make my point. We DON'T expect all SCC judges to be fully conversant in all forms of legalese. Often we appoint a judge because he or she has some particular expertise/experience in family law, or criminal law, or corporate/commercial law. I doubt Justice Abella or Justice Moldaver knows shit all about Canadian tax law or maritime law or bankruptcy law, but they're experts in other areas. Typically we have a couple of judges who know something about commercial law or family law or constitutional law at the expense of other areas of expertise. Often there's a refugee from the Federal Court of Appeal who fancies himself a tax lawyer. So, yes, being able to speak french is like being able to speak legalese in a particular area of law - a nice to have, but not mandatory given your expertise in other areas.

[Frances Woolley]

Bob: "there are going to be no big corporate/commercial lawyers, bankruptcy lawyers, competition lawyers, tax lawyers, who fit that profile"

Thanks for the comments - sorry they ended up stuck in spam for so long. This last point you make is a particularly important one - the SCC needs to achieve diversity along a range of criteria, and requiring a high level of bilingualism will limit the ability to recruit people to meet some of those diversity criteria because, for example, so much of the big corporate/commercial law work is done in English.

[Darren]

Avon Barksdale: "To make the argument that Quebec judges do it, why can't you, is like the kid who grows up on a country club saying "I can play polo, why can't you?" "

Exactly. As someone who grew up in BC (in my hometown I was about as likely to meet a Martian as a francophone) and has (some might say, senselessly) toiled on French for years as an adult, here are few things more galling than being lectured about how easy it is to be bilingual by a Quebecer who was probably bilingual by age 10, and if they weren't they were constantly surrounded as adults by both a) opportunities and b) incentives to work on their English (which, by all accounts, is an easier language to learn than French to start with).

[Jonathan Wiley]

"English (which, by all accounts, is an easier language to learn than French to start with)."

I think in terms of listening comprehension, French is a relatively difficult language, but to read phonetically, it's vastly easier than English, which is a total disaster. As far as spelling, I think they're both pretty bad.