Official Bilingualism, Officers of Parliament and Supreme Court Justices

Much ink has been spilled of late about the decision of Stephen Harper to appoint a unilingual Supreme Court Justice (Michael Moldaver) and a unilingual Auditor-General (Michael Ferguson) in recent weeks. We've seen the usual range of commentary, which has ranged from demands that all top-level appointments in Canada, including the Supreme Court justices, be bilingual, to calls to have the Official Languages Act substantially watered down and abolished. Over the weekend, I had occasion to participate on a phone-in talk radio show where a caller suggested that Canada's bilingualism policy was responsible for the poor performance of the Montreal Canadiens.

Before turning to my own observations, I'd like to single out two pieces of journalism which have most impressed me. In his piece for Postmedia News, Stephen Maher pointed out that in the case of the Auditor-General, bilingualism was an explicitly listed job qualification, and that it seems particularly egregious to have selected Ferguson when the other three candidates on the short list for the position were all bilingual. In her column this morning, Lysiane Gagnon introduces some important nuance into this discussion, stressing the different job requirements - and talent pools - for the positions of Auditor-General and Supreme Court justice. I largely agree with her column, although her final snipe at the NDP for running candidates who do not speak French rings hollow for me - their constituents should have perhaps been "better employers" before voting for candidates with whom they could not communicate, and thus sending a really mixed message about the importance of bilingualism. But I digress...

My main observations about this issue are as follows. First, there are relatively few positions as an overall proportion of the civil service and judiciary which require full bilingual proficiency. These positions tend to be concentrated in areas where there are high amounts of contact with the public, or in middle-to-senior levels of management where these individuals are expected to manage departments filled with speakers of both official languages. As such, while there have been bitter and vitriolic denunciations of the official languages policy over the past four decades, this is not a complaint for which I have much sympathy in 2011. While I am fully aware that, depending on where in the country one was raised, access to French-language instruction was historically unequal, that situation was largely transformed by the 1980s through funding programs to education. The situation was not perfect, but opportunities did exist. This is particularly true within the federal civil service because, despite decades of calls for the federal government to end its costly language training programs and shift the burden of responsibility for learning a second (or third) language to individuals who sought job promotion, opportunities do still exist within the civil service for keen job climbers to go on language training. Moreover, public service unions have long protected incumbents in positions from suddenly finding their current job in jeopardy from a language re-classification. While I'm sure that someone will point me to some outlier to disprove this general rule, the overwhelming tendency within the public service has been to make bilingualism a condition for career advancement in certain areas - not for maintaining current jobs.

This brings me to the question of which positions actually require bilingualism. Under current job descriptions, the Auditor-General, whose job entails much direct contact with parliamentarians and the media, was listed as requiring bilingualism. The Supreme Court justices, whose work is supported by a small army of interpreters and legal translators, and who have relatively little direct contact with the public or the media, are not currently required to be proficiently bilingual. As such, the cases of Moldaver and Ferguson's appointments must be evaluated differently because of the differences in the currently-stated requirements for those positions. While it might be desirable to appoint fluently bilingual senior jurists to the Supreme Court, there was no requirement that Harper do so (as for the pros and cons of proposals that this be made obligatory, that's ample fodder for a post all of its own). On the other hand, applicants who responded to the search firm contracted to find an auditor general were responding to a position designated as bilingual.

It is this last fact that makes Ferguson's appointment most troubling. I can't help but think that Harper decided to appoint Ferguson even though he didn't meet this job requirement as a trial balloon, testing the public mood about the Official Languages Act. It strikes me that the fact that, on its face, the Auditor-General's job is largely perceived to be about number-crunching, played into the decision to try appointing an individual who did not have French-language capacities. Harper and his advisors may well have been counting on the public to assume that this position was all about financial skills, and ignore the substantial investigation and communication components of this position. How quickly the memory of Sheila Fraser, media star during the AdScam investigations, slipped from the public consciousness! This could well be a test to determine in how many other ways the Official Languages Act and its requirements of the federal public service might be chipped away.

The decision to appoint Ferguson despite the opposition of all three opposition parties is also very discouraging. The Auditor-General is one of a select group of senior public servants who are Officers of Parliament, and as such, stand apart from the regular civil service and rely on the confidence of all of Parliament to conduct their investigations and duties in impartial and non-partisan ways. Selecting an individual who lacked this confidence even at the outset of his appointment will cast a shadow over Ferguson's ten-year term. I should also note that I considered the Liberal tactic of walking out of Parliament in the two votes on this issue to be cowardly and sending precisely the wrong signal to Canadians. In an era where voter participation is on a steep decline, do we really want our politicians, in effect, refusing to cast a ballot because the process was flawed? If our politicians believe that it is important that the Auditor-General be competent in both of Canada's official languages, they should have the courage of their convictions to vote against the appointment of an individual who lacks that qualificiation. If not, they send a signal to Stephen Harper that they too will be wishy-washy when it comes to watering down the Official Languages Act.

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