Micheal Moldaver, Supreme Court Nominee, Grilled By NDP MP Joe Comartin

Michael Moldaver

First Posted: 10/19/11 06:36 PM ET Updated: 12/19/11 05:12 AM ET

"Je comprends que vous ne pouvez pas parler français du tout," NDP house leader Joe Comartin told a Conservative government Supreme Court nominee Wednesday.

"I understand that you are not able to speak French at all," Comartin repeated in English. Justice Micheal Moldaver, who was testifying before an all-party committee, smiled nervously.

"I understand that the statement that you read today, I assume had been prepared and you are reading those statements?" Comartin continued.

"That is correct sir," Moldaver responded.

Moldaver and Justice Andromache Karakatsanis had just finished introducing themselves to MPs. They are the government's picks for two vacancies on the country's top bench.

Moldaver is a veteran of the Ontario Court of Appeal, where he has been a judge since 1995. Karakatsanis, who is perfectly bilingual but admitted Wednesday she has little knowledge of Quebec's civil code, was promoted last year to the Court of Appeal for Ontario from the Ontario Superior Court of Justice.

Both are recognized as legal experts, but the major point of contention, for NDP and Bloc Quebecois in particular, is Moldaver's lack of French.

"Is there any advantage that Mme Justice Karakatsanis had in terms of learning French that was not available to you?" Comartin asked Moldaver.

"No sir, there wasn't," the appointee responded.

Comartin noted that the Quebec bar had written to the federal government to reconsider Moldaver's appointment and that the Commissioner of the Official Languages had it was an absolute requirement for Supreme Court justices to be able to work in French and in English.

"I have followed your career, I have no questions about your ability -- except for that one, for me, crucial element. So what do you say to the province of Quebec, to the francophone communities across the country?" Comartin added.

Moldaver said it was an important question that he took "very seriously."

"My lack of fluency, at the present time, in French will clearly make my task that much harder on the court," Moldaver said. "But I am not so much worried about me, I feel, and I understand exactly the concern certainly from council who appear before the Court and wish to speak in the French language and who understandably would want a judge that could engage with them in the French language which I readily admit, I cannot do. That said, I can only commit to you, for that I will be taking up, obviously, I will be studying and I'll be learning and I will be meeting with someone obviously to learn French as quickly as I can. There is simultaneous translation which obviously will be of assistance to me, I will have available law clerks who can assist me in understanding factums and so on that are filed in French. I will have, obviously colleagues who can assist me. And all I can say sir is that I will do everything that I can in my power to get as far and as proficient in the French language as quickly as possible."

"I respect the question, I respect very much the views of the Quebecois and I am what I am, I will just do everything that I can...I can't just do more than that sir."

Comartin said he had heard the same promises when Justice (Marshall) Rothstein sat before MPs.

"I heard the same commitment from him. And we all know that was five, five and half years ago and Mr. Rothstein is still not able to conduct any hearings in French," Comartin added.

The NDP, through New Brunswick MP Yvon Godin, re-introduced a private members' bill in June, bill C-208 'An Act to amend the Supreme Court Act (understanding the official languages)', to ensure Supreme Court justices are bilingual.

The previous version of the bill made it through the House of Commons but died on the floor of the Senate when Canadians headed to the polls last March.

Follow Huffington Post Canada's Ottawa Bureau Chief Althia Raj on Facebook and Twitter for all the latest news from Parliament Hill.

CORRECTION: An earlier version of this story mistakenly identified Joe Comartin as the NDP's justice critic. He is currently NDP house leader.
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"Je comprends que vous ne pouvez pas parler français du tout," NDP house leader Joe Comartin told a Conservative government Supreme Court nominee Wednesday. "I understand that you are not able to ...
"Je comprends que vous ne pouvez pas parler français du tout," NDP house leader Joe Comartin told a Conservative government Supreme Court nominee Wednesday. "I understand that you are not able to ...
 
 
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gwinegarden
She's an Arctic Wolf
10:38 AM on 10/20/2011
Sorry, being bilingual has to be a requirement.
06:18 AM on 10/20/2011
How can a judge deal with a case in one of Canada's official languages if he doesn't speak it ..at all?
This is a kick in the teeth for bilingualism and for Canada's francophone poplulation without doubt, but a travesty for what justice should mean.
07:46 AM on 10/20/2011
Maybe bilingualism needs kick in the teeth. What's just about requiring bilingualism when only 20% of the population of the country speaks one of the two languages?
04:52 AM on 10/20/2011
This smells like a typical King Steve political ploy to make the Supreme Court a de facto English only court. (King Steve never does anything without considering whether it improves his next election results.) Anyone who speaks another language knows the "Anglo effect": a meeting or telephone conference is proceeding in French (in my case), a unilingual anglophone joins and the conversation immediately switches to English. The same thing is likely to happen at the Supreme Court, especially if King Steve stuffs it with extreme-right idealogues in the style of Scalia, Thomas, and Alito. BTW, learning French at the judge's age is like him undertaking to climb Everest - theoretically possible but practically impossible (and I'm not being "ageist"); learning the nuances and subleties of French argued by highly-educated lawyers IS 100% impossible.
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Alain Posteur
11:24 PM on 10/19/2011
What most people fail to understand, is that both the english and the french versions of the constitution and every single law have "force of law". That is, its possible to plead "meaning" on the basis of one, or the other versions of the law, because the meaning can differ a little from one language to another.

If you don't speak english and french, you are simply unqualified to be a supreme court justice. It has nothing to do with symbolism or Canadian identity. Most Canadians don't know that both versions of every law have equal force of law and therefore, its possible to plead on the basis of the meaning of one the other version. There is a long jurisprudence on this and it has happened in quite a few cases.

So those who claim that by asking for bilinguilism, we are limiting the pool of qualified candidates are simply being illogical, or clueless. If you cant count, you cant be an accountant. If you can't read, you can't be a teacher. If you can't understand both versions of the law in a country were both version have "force of law" , you can't do your job properly as a Canadian supreme court.
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sdgreen
12:00 AM on 10/20/2011
I would dispute your claim in that if there are differences of any kind, then a concordance certainly exists that clarifies the versions. Secondly, a Judge need not be proficient in one or the other language, as in this day and age either interpreters can be used or otherwise electronic translation can be employed.

A forced qualification for a Judge to be proficient in both English and French is not justified.
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JackHoffman
Pundit
01:45 AM on 10/20/2011
In that case, let's get a Arabic speaking judge. Who cares about nuances in language.
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Alain Posteur
09:09 AM on 10/20/2011
"A concordance certainly exists that clarifies the versions"

Who do you think "clarifies the versions"? Its the Supreme court's job to do so. Translation of the law is a huge legal issue in a lot of bi or trilingual countries where there are more than one language that has force of law (Canada, Switzerland, Belgium are common exemple)

I don't think every judge in the country should be should be bilingual. No one is asking for this, certainly not in Quebec from what I can dicipher. They have a lot of unilingual french juges that never expect to make it to the supreme court because they know that the top 9 judges in the country have to be bilingual, based on the fact that both versions of the law have "force of law". Its not a matter of mere "opinion" on my part. Its a real issue and jurisprudence on a number of cases confirms this.

I was just saying that its a false claim to say that by asking for bilinguilism we are limiting the number of qualified candidates. This is simply illogical... if you don't speak both languages, THEN you are unqualified for that particular job.

Its not a "forced" qualification in any way. Its unfortunate for the individuals involved, but seriously, if you can't read documents that have force of law...

If you don't like bilinguilism, fight it where its irrelevant, not where it REALLY is absolutely essential.
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piceaglauca
The picture says it all....
12:06 AM on 10/20/2011
Yes and he will respond to the English version. The criminal code is exact regardless of the language. that being said for the crime commited I see no difference in the language chosen. In civil law, torts, etc., I see a problem but if one surveys the present appointees not all are bilingual. That being said the Supreme Court has been functional not disingaged because of his unilingality.
10:31 PM on 10/19/2011
What would Mr. Comartin say if his idea of imposing a bi-lingualism requirement on all judges significantly reduced the pool of acceptable candidates? Because there is no question that it would. And that would inevitably that a better candidate is disqualified in favour of a less qualified candidate who happens to speak French. I think that's an unacceptable trade off when we're talking about the highest court in the land, or any court in the land for that matter.
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JackHoffman
Pundit
01:47 AM on 10/20/2011
Canada is an 'officially' bilingual country. It's not just a passing fancy. It's ludicrous to suggest that the highest court in the land should have judges who don't communicate in both languages.
10:16 PM on 10/19/2011
I should mention that I'm a US citizen who resides in Canada (BC). I fully support the notion that Canadian Supreme Court judges should be bilingual. Bilingualism is one of Canada's real strengths, and anyone who goes to law school in Canada and hopes someday to go on the bench should know both languages fluently. It's only fair to the litigants, after all. I truly doubt that a Quebecois candidate would be considered if he or she didn't speak both languages. Why should it be any different for candidates from other provinces?
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floodberg
Attorney (ret.)
01:23 AM on 10/20/2011
I'm an American who lived in France and vacationed frequently in Quebec; and there's a very large difference between a sentence spoken in one language and repeated in another; nuance and connotation are critical to interpretation.  To place a non-bilingual judge on the court I would see as disrespectful to that bilingual tradition.  He should be fluent in both before he interprets the law; ruling on the basis of translations is not sufficient at this judicial level.  Faved, Mmmickey55.
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feuille derable
La République du Canada
09:41 PM on 10/19/2011
Not acceptable!
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tnanimation
08:27 PM on 10/19/2011
So emperor Steve picks two judges for the Supreme Court, one can't speak French, the other has little knowledge of Quebec's civil code AND he stiffs Quebec on the ship building deal, all in one day. Wow. Good luck getting any votes in Quebec next time around.
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anugs
12:18 PM on 10/20/2011
He doesn't have to worry about Quebec votes. They all voted NDP. Complain to the Bloc Quebecois, Oh yah The NDP won all their seats they're not an official party any more.
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tnanimation
12:27 PM on 10/20/2011
During the Trudeau era, right after the NEP debacle, the general feeling in the Liberal party was, 'Forget the west, we'll take the rest'. Liberals came to regret this. Any truly national party that wishes to stay that way needs to have representation nationwide. The Harpercons ignore Quebec at their peril (ask Brian Mulroney, father of the BQ). Politics in Canada (as in all democracies) is a fluid thing, and a year in politics is an eternity. Fresh off an election the little emperor is feeling invincible, showing Canadians his true self for the first time, unencumbered by a truly effective opposition. Canada is a centre left country, and the Harpercons are drifting further and further right. The next election will be very different from the last.
08:16 PM on 10/19/2011
This is absurd.

At the time he introduced the concept of Official Bilingualism, Trudeau said that had he knew that the term would be misunderstood he would have used another.

The whole point of bilingualism is to make government services available in English and French. All of the proceedings of the Supreme Court -- official transcripts and oral arguments -- are in both official languages. Therefore, ONE DOES NOT NEED TO BE BILINGUAL AS AN INDIVIDUAL IN ORDER TO BE A JUDGE. Indeed, if all judges were fluent in both English and French THERE WOULD BE NO NEED FOR OFFICIAL BILINGUALISM IN THE COURT BECAUSE ONE WOULD BE ABLE TO UNDERSTAND IF ONLY ONE OR THE OTHER LANGUAGE WAS USED.

I advocate that the next Commissioner of Official Languages be unilingual English or French so that this point be made.

As former Member of Quebec's National Assembly William Shaw said: "What's the point of bilingualism if everyone is?"
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tnanimation
08:27 PM on 10/19/2011
Your post is absurd in the extreme.
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Sandra MacKay
09:50 PM on 10/19/2011
No..it's not
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sdgreen
12:04 AM on 10/20/2011
Precisely! The entire bilingualism provisions should not be barrier for anyone to be denied Federal employment.
08:08 PM on 10/19/2011
Here we go again. Everyone else in this country has to be bilingual except Quebecers. I've had enough. We English speaking Canadians have to start speaking up.
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tnanimation
08:30 PM on 10/19/2011
Good lord, this is an issue that has been long settled. Please, don't get your union jack knockers in a knot.
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feuille derable
La République du Canada
09:45 PM on 10/19/2011
After a long day, you made me laugh. Thanks!
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sdgreen
12:06 AM on 10/20/2011
No it has not. The cost to deal with the bilingulism laws is enormous and has not really produced a satisfactory result. Canada is a multi-lingual nation and in my view we should have - one - working language like the rest of the world and that is English.
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valar84
08:57 PM on 10/19/2011
It's more, everyone has to make an effort to offer essential services in both languages, except Québec, BECAUSE IT ALREADY DOES.

The idea is simple enough. After the Supreme Court, there is no appeal, so it is important to make sure that every Canadian is able to plead his case equally and fairly in front of it.

Imagine if the majority of the Supreme Court didn't speak a word of French and had to rule on a case opposing a French-speaker and an English-speaker. Both have to plead their cases in front of the judges. Don't you think that the English-speaker would have a big advantage, since he is able to control exactly what the judges hear and how his message is conveyed, whereas the French-speaker just has to hope that the translator does a good job, but still loses the ability to convey messages through intonation in his voice.

Don't see the problem? Then do the opposite, imagine if the majority of the Supreme Court didn't speak a word of English and you had to testify in front of it against a French-speaker, knowing that the judges will just hear a translator trying to translate on the spot what you are saying, trying to keep up to you and speaking in a monotone fashion. Do you feel comfortable with that situation? Do you feel that your rights as a Canadian citizen would be well protected? Please, don't kid yourself.
09:44 PM on 10/19/2011
Well said!
10:27 PM on 10/19/2011
Yes I do, because I know that at that level the legal mind of the decision maker is more important than whether or not he or she receives the information through a translator. Any gain you would get by having someone with the right language skills would be outweighed by loss of having to choose a lesser candidate intellectually to make room for someone who happens to speak the right language.

Your argument would apply equally, if not more so, to all judges. In fact,in lower courts judges are busier and they may not have as much time to spend reading the materials for every motion that comes before them. I would argue the oral argument is much more important in those cases than before the Supreme Court. Does that mean all judges should be bilingual? That would be preposterous- you would significantly diminish the pool of candidates available for the job, which would inevitably reduce the quality of judges. The same is true for the Supreme Court judges.