Justice Moldaver: An Injustice Waiting To Happen

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When is Canada going to learn what Québec already seems to understand: that Harper and his Tories were never really serious about ensuring that recognition of  Québec as a nation ever become more than a bone one throws at the proverbial dog that you otherwise ignore. After appointing a unilingual Anglo judge and Attorney General (Judge Moldaver & Michael Ferguson, respectively), it’s now blatantly obvious that the PM is thumbing his nose at official bilingualism, an institution that not only directly affects Québec but also the 1 million, francophone’s scattered throughout the country.

Justice Moldaver committed himself to improving his French (while you’re at it, Justice Moldaver, may I suggest brushing up on the definition of the Common Law, as you indicated during the Parliamentary committee hearing that you believe judges did not “create law” in Canada). I’ll believe it when I see it. Besides, Supreme Court Justices are rather busy these days, and don’t generally have enough time to work on their French skills, what with all the legal business they have to address, in the course of their work. Moldaver again tried to mollify public concern by claiming that, in any case, he could always rely on clerks to help with the translation of material into French. I know clerks deserve more credit for all the good work they normally do behind the scenes, but this is ridiculous!

By the by, for those confused by the NDP’s position on bilingualism, championing official bilingualism in their bill on reforming the court, yet at the same time allowing their justice critic to endorse the short list of candidates, being submitted to the PMO for selection. My answer to you is that, under the circumstances, which will always remain a mystery, thanks to the government’s decision to hold secret meetings on the matter, these were the best candidates on offer. In other words, you think Moldaver is bad? If only you could see the right wing hanging-judges that the panel of MP’s representing the whole of the House of Commons, rejected!

But being the resident legal nerd here at FTB, I would like to explain how, I think, such poor policies don’t only affect Harper’s already tarnished image in my home province, but also speak to issues of fundamental justice and constitutional law. Official bilingualism means at least adequate service in both languages in every federal institution, and that’s doubly true of one that is the highest court in the land. Moldaver’s defenders maintain that the translation services at the court are second to none. At the risk of offending our folks in the federal Public service, this appears to be a slight exaggeration. In fact according to francophone lawyers who have been before the court, including Professor Sébastien Grammond of the University of Ottawa, the French version of the facts that justices hear is often full of mistakes, that, though, they may be understandable, may adversely affect the outcome of a litigant’s case. And when the stakes are as high as this, may represent a serious breach of the fair trial provisions in the Charter of Rights & Freedoms (article 11). Not to mention, the equality rights in section 15. After all, if you can get the same quality of justice in French as you do in English, then you’ve got potential for miscarriages of justice.   Now I hear you saying, can’t those two justices who don’t understand French simply be benched (so to speak) in French cases? This would appear to solve the problem, since they are only 2 out of 9, for the time being. However, some cases will inevitably involve all 9 judges.

Finally, federal law is actually written separately in both official languages, and sometimes contain crucial differences in wording and content. In the event, that these two conflict, the judge is supposed to apply the one that best reflects the intention of the legislator. That means that Moldaver will be at a definite disadvantage in cases where this kind of issue arises.

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