An Act to amend the Supreme Court Act (understanding the official languages)

This bill was previously introduced in the 41st Parliament, 1st Session.

Sponsor

Yvon Godin  NDP

Introduced as a private member’s bill. (These don’t often become law.)

Status

Second reading (House), as of Feb. 28, 2014

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Summary

This is from the published bill. The Library of Parliament often publishes better independent summaries.

This enactment amends the Supreme Court Act and introduces a new requirement for judges appointed to the Supreme Court to understand English and French without the assistance of an interpreter.

Elsewhere

All sorts of information on this bill is available at LEGISinfo, provided by the Library of Parliament. You can also read the full text of the bill.

Supreme Court Act
Private Members' Business

February 28th, 2014 / 1:25 p.m.
See context

NDP

Yvon Godin Acadie—Bathurst, NB

moved that Bill C-208, An Act to amend the Supreme Court Act (understanding the official languages), be read the second time and referred to a committee.

Mr. Speaker, I am proud to rise for the third time in the House to speak to Bill C-208, which would require Supreme Court justices to be bilingual so that they can respond to Canadian citizens.

Thirteen years ago, on February 28, two hours before I made a speech in the House of Commons about taxes on mechanics' tools, I was thinking that my grandson Jonathan, who was born two days later, might one day use these tools if he decided to become a mechanic.

Today, as I wish Jonathan a happy birthday, I hope that my other grandson and my granddaughter will be able to be heard in the official language of their choice, which is French, if they ever need to go to the Supreme Court.

Today, my New Democrat colleagues and I are back with my Bill C-208, which would make being bilingual in French and English a new condition for appointing justices to the Supreme Court of Canada.

This is my third attempt to get this initiative passed. In 2010, this bill, known at the time as Bill C-232, was passed by the House of Commons. To my great disappointment, the Conservative senators used their majority in the Senate to block the bill. The bill then died on the order paper when the 2011 election was called.

The Conservatives have repeatedly shown their contempt for official languages by appointing two unilingual anglophone justices to the Supreme Court and by appointing a unilingual auditor general.

The NDP thinks that there is another way to do things. The NDP is the only party that is proposing concrete measures to promote and protect our official languages. Thanks to the NDP, the House recently passed Bill C-419, which corrects the Conservatives' mistake by ensuring that officers of Parliament will now have to be bilingual when they are appointed. It is time for us to make understanding both official languages an essential condition of being appointed to the Supreme Court.

I would like to speak to the importance of this bill. This is a question of access to justice. The Supreme Court is the highest court in the country, and it is very important that the justices be able to understand both official languages without the help of an interpreter. I have the utmost respect for the work of interpreters, but we know that interpretation has its limits. Numerous lawyers have noticed errors and omissions in the interpretation of their arguments before the Supreme Court.

I am thinking, in particular, about Michel Doucet, a law professor at the Université de Moncton, the former dean of the law faculty at the university and a language rights expert. He spoke to the issue when he appeared before the Standing Committee on Official Languages:

In the week after I had argued a case before the Supreme Court, I had an opportunity to hear the English version of my arguments on CPAC, and I understood why I had lost the case five to four. The translation did not allow me to understand my own words. I wonder how justices can fully understand the matter at hand when they have to go through translation in which significant aspects of a submission are missing. When you win 9:0, there is no problem, but when you lose 5 to 4, you automatically wonder whether you should not have argued in English.

There are many examples of questionable interpretation at the Supreme Court. A lawyer arguing his case before the court mentioned a Monsieur Saint-Coeur and the interpreter rendered it as “Mr. Five O'clock”. Even the Commissioner of Official Languages, Graham Fraser, has weighed in on the importance of understanding the arguments presented without the help of an intermediary.

In June 2009, he told members of the Standing Committee on Justice and Human Rights:

Given the complexity and the extreme importance of the cases heard by this court, judges should be able to hear arguments presented to them without using an interpreter to understand nuanced and complex legal arguments.

According to Sébastien Grammond, Dean of the Faculty of Law at the University of Ottawa, interpretation may lead to “loss of precision which, in some cases, can even involve the omission of certain sentences”.

This loss of precision can also be found in the documents submitted by the parties to the proceedings. These documents are not translated by the court. Unilingual judges must rely on the briefs prepared by court clerks, who are often young lawyers with little legal experience.

The presence of unilingual judges on the bench of the Supreme Court also poses a problem during closed-door deliberations without an interpreter. Francophone judges must always express their opinions, ideas and knowledge in their second language. Therefore, there is a risk that they will be much less precise.

If the justices can function in both official languages, everyone can work in the language of their choice. The bilingualism of judges is therefore a question of the equality of francophones and anglophones in terms of access to justice.

The bilingualism of Supreme Court justices ensures the equality of both official languages.

We have to remember that the Supreme Court has recognized the equality of French and English.

Laws are drafted in both official languages. Both versions have the same weight and neither one takes precedence over the other.

Our language duality is part of our Canadian identity. We have to embrace it.

Is there substantive equality when a francophone appears before the Supreme Court? The Supreme Court is not there to reward ambitious lawyers or judges. It is there to dispense justice for all Canadians.

Serving on the Supreme Court is not a right, but having fair access to justice is a right. Remember that the court is there to serve Canadians, not the interests of the judge.

The issue of requiring Supreme Court judges to be bilingual has been debated for several years.

I think it is wrong for francophones to have to make themselves understood by unilingual judges through the filter of interpretation, especially before the highest court in the land.

If Canada's two official languages are to be truly equal, it is important that bilingualism be an essential requirement when judges are appointed to the Supreme Court.

Lastly, my bill would ensure that the Supreme Court can serve all Canadians equally, whether their mother tongue is English or French.

The Commissioner of Official Languages, Graham Fraser, who is highly respected by all Canadians, has said several times that he supports requiring Supreme Court judges to be bilingual.

The Barreau du Québec has supported this bill for years now:

The Barreau has always believed that functional bilingualism should be among a Supreme Court judge's required skills in order to ensure equal access to justice, and it deplores that even today federal legislation has no provisions requiring that the nine Supreme Court judges be proficient in both official languages.

Many stakeholders in the official languages community support my bill, particularly the Fédération des communautés francophones et acadienne and its members:

The FCFA believes that all citizens have a right to be heard and understood before the highest court of Canada in their official language of choice, without the assistance of an interpreter.

Lastly, various linguistic rights experts have spoken out in favour of my bill, including Sébastien Grammond, Dean of Civil Law at the University of Ottawa, Gérard Lévesque, a very well-known lawyer for language rights, and Serge Rousselle and Michel Doucet, both law professors at the Université de Moncton.

Let me remind members that the NDP is the only party that proposes concrete measures to advance Canada's linguistic duality.

Bill C-419 on the mandatory bilingualism of officers of Parliament, introduced by my colleague, was passed by the House of Commons in 2013.

Let us not forget that the Quebec City marine rescue sub-centre remained open thanks to the pressure that my NDP colleagues and I put on the Conservative government, which intended to close this centre, the only French-language marine rescue centre in Canada.

The Conservative government has not shown any respect toward our official languages. I want to remind the House that it is the Prime Minister who appointed two unilingual judges to the Supreme Court. It is also the Conservative government that appointed a unilingual Auditor General to Parliament. Even the minister responsible for official languages is not in favour of my bill. Her riding of Saint Boniface, in Manitoba, includes thousands of francophones. What an insult to that community.

I also want to remind the members opposite that this former bill, Bill C-232, was passed by the House of Commons in 2010.

All the Conservative members voted against that bill, even the members from Quebec and those who have francophone communities in their ridings, such as the members for Moncton—Riverview—Dieppe and Madawaska—Restigouche. Despite the opposition of the Conservative members, Bill C-232 was passed by the House of Commons; however, the unelected Conservative senators, including a number of francophones, held up the bill until the 2011 election was called.

The majority of the members in the House of Commons, who were elected by Canadians, voted in favour of this bill, but the unelected senators defeated the bill. Do not try to tell me that the Senate stands up for linguistic minorities.

In closing, I ask the members of all the parties to support this bill so that it can move along and be considered at the Standing Committee of Justice and Human Rights. We must protect the equality of our two official languages and equal access to justice.

In particular, I am calling on the Conservative members from Quebec and the members who have francophone communities in their ridings, such as the members for Madawaska—Restigouche, Moncton—Riverview—Dieppe, and Saint Boniface, to pressure their colleagues to support my bill, which seeks to ensure that the Supreme Court judges are bilingual.

If the Conservatives thought that bilingualism was necessary for becoming an officer of Parliament, then there is no reason why they should not do the same for the judges who sit on the benches of the highest court in the land.

The bill is a matter of justice and equality.

It is a matter of justice and equality.

Canadians have the right—it is more than just a privilege—to appear before a judge at the Federal Court of Canada and be heard and understood in the language of their choice. The same applies to the Federal Court of Appeal. It should also apply to the Supreme Court, the highest court in the country.

I was at the Standing Committee on Justice and Human Rights this week, and I asked officials from the Department of Justice whether there are enough bilingual judges in each province. If Canadians were to read the committee minutes, they would see that the response was yes. I then asked whether there are a lot of judges, and they said that there are enough.

I am waiting to hear the Parliamentary Secretary to the Minister of Justice tell us that the pool is not big enough, even though officials from his own department clearly told us in committee that it is a big pool. They told us that there are enough bilingual judges in every province.

I hope that the Conservatives will support my bill and bilingualism in Canada.

Supreme Court Act
Private Members' Business

February 28th, 2014 / 1:45 p.m.
See context

Moncton—Riverview—Dieppe
New Brunswick

Conservative

Robert Goguen Parliamentary Secretary to the Minister of Justice

Mr. Speaker, I rise today to discuss the second reading of Bill C-208, An Act to amend the Supreme Court Act (understanding the official languages), put forward by the member for Acadie—Bathurst.

The bill would amend the Supreme Court Act. It would introduce a new requirement for judges appointed to the Supreme Court to understand English and French without the assistance of an interpreter.

The English and French languages have shaped Canadian society. Both linguistic communities are at the heart of our national identity.

The Government of Canada recognizes the importance of supporting the development of its official languages minority communities. To that end, in June 2008 the government announced the Roadmap for Canada's Linguistic Duality 2008-2013, a government-wide commitment with a budget of $1.1 billion, based on two pillars: the participation of all in linguistic duality and the support of official languages minority communities in the priority sectors of justice, health, immigration, economic development, and arts and culture.

This initiative has been followed by the Roadmap for Canada's Official Languages 2013-2018: Education, Immigration, Communities, which provides a renewed investment of $1.1 billion over five years, with clear priorities to protect, celebrate, and strengthen our official languages across Canada. One of the road map initiatives under the education component is an investment in training, networks, and access to justice.

I first want to say that our government is strongly committed to enhancing the vitality of English and French linguistic minorities in Canada and fostering the full recognition and use of both English and French in Canadian society

I also want to assure the House that our government is committed to maintaining the tradition of excellence that is the hallmark of the judicial appointment process, so that Canadians continue to trust and respect our judicial system.

Canadians take pride in the judicial system and in the steps taken to ensure citizens have access to justice in either official language. The Supreme Court of Canada is a model of institutional bilingualism, which reflects the intent of Parliament that our national institutions be bilingual.

The government remains committed to preserving a fair, unbiased legal system. To that end, we intend to continue to be guided by the principles of merit and legal excellence in the selection and appointment of judges to the superior courts of the provinces, the federal courts and the Supreme Court.

To date, our government has appointed 400 judges to various Canadian courts. We are proud of having appointed these highly competent judges and lawyers. Our appointments embody the principles of merit and legal excellence that will continue to guide our decisions in the appointment of judges.

Merit and legal excellence are the foundation of the judge appointment process. The other criteria are knowledge of the law, judgment, work habits, ability to write and communicate, honesty, integrity, a concern for fairness and a social conscience.

Bilingualism is another factor we consider. Our government can take candidates' linguistic abilities into account to ensure that Canadians have access to justice in both official languages. We are determined to create a federal legal system that provides equal access to justice in both official languages.

I would also like to point out that, before each appointment, we consult the chief justice of the court in question to find out the court's needs, including its need for specific language skills. The chief justice is in an ideal position to understand the needs of the communities the court serves and to identify specific needs when positions become available. Our government also listens to the advice of various expert groups and individuals about factors to consider when filling vacancies.

To ensure that we have an ample and balanced pool of bilingual candidates for the bench, our government asks associations of lawyers and francophone communities to identify and encourage people with the necessary skills to apply. We also ask them to inform the minister about these people.

We are not denying the importance of language skills, particularly when a specific need is identified. However, merit remains the primary and most important factor that must be taken into account in appointing judges.

First and foremost, our government is determined to appoint the best-qualified individuals. We will continue to appoint competent and dedicated people, and adhere to the principle of gender equality, cultural diversity and bilingualism.

The Supreme Court of Canada plays a fundamental role in our democratic society, in particular as the ultimate guardian of the values entrenched in the Constitution.

It is therefore essential for its members to be selected from among the most distinguished and most competent of jurists. That is why when filling vacancies in the court, we take great care to select the best candidates, both in terms of knowledge and experience and of social conscience.

The judges appointed to the Supreme Court for the past 130 years have been among the best justices the court could have had. The qualities we look for in a candidate include outstanding intellectual capacity, superior ability in judgment writing, the capacity for innovative thinking on emerging legal issues, and a demonstrated sensitivity to the diverse values enshrined in the Constitution. All these qualities go hand in hand with regional representation. It is important that the Supreme Court represent all Canadians. That is why we must take this important factor into consideration.

This is how Peter Hogg, a renowned constitutional scholar, described the professional and personal qualities that a Supreme Court of Canada justice must have:

A judge has to be able to resolve difficult legal issues, not just by virtue of technical legal skills, but also with wisdom, fairness, and compassion.

A judge must have the energy and discipline to diligently study the materials that are filed in every appeal.

A judge must be able to maintain an open mind on every appeal until he or she has read all of the pertinent material and heard from counsel on both sides.

A judge must always treat the counsel and the litigants who appear before him or her with patience and courtesy.

A judge must be able to write opinions that are well written and well reasoned.

...a judge must be able to work cooperatively with eight colleagues to help produce agreement on unanimous or majority decisions and to do his or her share of the writing.

Whereas the Supreme Court is the final court of appeal in Canada, it is essential for our government to be able to select qualified jurists from all regions of the country when appointing justices to the Supreme Court of Canada.

Passing BIll C-208 would mean giving greater importance to linguistic considerations than to merit, by reducing the pool of otherwise highly qualified candidates, particularly from parts of the country where there may be fewer judges who are capable of handling cases in both official languages.

Indeed, the Supreme Court already respects the right of all Canadians to be heard and understood in the language of their choice. All Supreme Court services are provided in English and French, and all communication already takes place in both official languages.

In addition, anyone who has to make written submissions to the Supreme Court may do so in either English or French. A large majority of the judges currently sitting on the Supreme Court are proficient in both official languages and are perfectly capable of handling cases in either language without the use of simultaneous interpretation.

Supreme Court judges also have the option of taking language training; indeed, they are encouraged to do so. High-level and very high-quality translation and interpretation services are provided for Supreme Court hearings. Furthermore, all judges are supported by at least one bilingual law clerk.

The current composition requirements of the Supreme Court Act, together with the historical practice of regional representation, allow us to preserve our firm commitment to bilingualism.

The extraordinary expertise and commitment of the current Supreme Court judges clearly demonstrate just how seriously our government takes these appointments, as did previous governments.

Bilingualism is an important factor to consider in the selection of Supreme Court judges. However, this factor must not overshadow the merit and excellence of judges from a legal standpoint, or the importance of regional representation.

For all of those reasons I just mentioned, we cannot support Bill C-208 in its current form.

Supreme Court Act
Private Members' Business

February 28th, 2014 / 2:15 p.m.
See context

NDP

Marjolaine Boutin-Sweet Hochelaga, QC

Mr. Speaker, I am very proud to rise today to speak to Bill C-208, which was introduced by the hon. member for Acadie—Bathurst. I know how important official languages are to him and to the vast majority of francophones from one end of this country to the other, myself included.

To begin, I would like to congratulate him for bringing back this bill. I would also like to thank him for how passionately he defends our shared mother tongue and our country's official language minority communities.

This bill would amend the Supreme Court Act and introduce a new requirement for judges appointed to the country's highest court to understand both official languages without the assistance of an interpreter.

For the NDP, this bill is primarily about equality—equal access to justice and the equality of our country's two official languages.

As my colleagues have said, the NDP is the only party that is proposing meaningful action to promote and protect the equality of Canada's two official languages. It is also the only party that is proposing initiatives to enhance the vitality of official language minority communities.

Not only is this the member for Acadie—Bathurst's third attempt to get Parliament to ratify this principle, but this initiative is also closely aligned with Bill C-419 on bilingualism requirements for officers of Parliament, which was introduced by my colleague from Louis-Saint-Laurent and received royal assent last June.

I would like to take this opportunity to congratulate my colleague from Louis-Saint-Laurent on this unprecedented victory and all of his hard work on this file.

I hope the Conservative members have finally understood the importance of protecting language rights, and I hope they will support this important bill despite what we have heard today.

This is the third time that my colleague from Acadie—Bathurst has introduced this bill since 2008. The last time we debated it in the House, members passed it on March 31, 2010.

Why are we debating it again today? The answer is simple but distressing. Unelected, unaccountable senators in the Conservative caucus who do not represent Canadians blocked this bill for a full year until the March 2011 election. As a result, Bill C-232 died on the order paper.

That is another good reason to abolish that archaic and completely undemocratic institution. To all those who argue that the Senate and senators serve the interests of Canada's linguistic minorities, well, we can forget about that.

One important fact is that when Bill C-232 was passed in the House of Commons in May 2010, the Conservatives had a minority government. All the Conservative members, including the francophone Conservative members, voted against the bill. That is shameful. However, since the opposition voted to support the bill, it managed to pass in the House.

I do not need to paint a picture to explain to people that, considering that outcome, someone must have received a call from the Prime Minister's Office instructing the government's friends in the upper chamber to do everything in their power to throw a monkey wrench into the plans and obstruct the democratic will of this House, which is filled with the elected representatives of the Canadian people. Accordingly, we are trying again.

Many groups and individuals have expressed their support for the amendment to the Supreme Court Act that is proposed in Bill C-208.

Graham Fraser, the Commissioner of Official Languages, is one of them. When he released his annual report on November 7, 2013, he stated:

There have also been a few outcomes during my tenure that I would characterize as conspicuous failures. For example, the government failed to see the importance of having bilingual Supreme Court judges. I have given my support to Bill C-232, which sought to amend the Supreme Court of Canada Act, as I firmly believe that any litigant appearing before the Supreme Court should have the right to be heard and understood by all the judges in either official language without the aid of an interpreter.

Other stakeholders, such as the Barreau du Québec, the Fédération des communautés francophones et acadienne du Canada, the Fédération des associations de juristes d'expression française de common law, the Association des juristes d'expression française du Nouveau-Brunswick, and Sébastien Grammond, dean of the faculty of law at the University of Ottawa, have said they support my colleague's bill.

They all agree that this is a matter of equal access to justice, and they acknowledge the importance of being understood in the official language of our choice by the highest court in the land, without a third party interpreting our words, which can lead to interpretations that are inconsistent with what was really said.

As a Quebecker, I would like to add that it is particularly important to my constituents that the highest court in the land understand both our national language and our civil law tradition.

I am troubled by the comments made by those who oppose this bill. Some believe that the condition of understanding both official languages without the aid of an interpreter would be an obstacle to appointing the best people to fill this role, those who merit the position the most. That argument would suggest that there are not enough qualified bilingual judges to serve as Supreme Court judges. That argument is simply wrong.

A study conducted in 2011 by professors Mark Power and Sébastien Grammond showed that, even if Quebec is excluded, 25% of the 124 judges who serve on provincial appeals courts and the Federal Court of Appeal can hear a case in French without the aid of an interpreter. Are we not capable of finding a judge in that group worthy of serving on the Supreme Court?

The NDP believes that to become a Supreme Court judge, one must have all the necessary skills, including the ability to understand Canada's two official languages.

Not only did the members opposite vote against Bill C-232, but the Conservative government appointed two unilingual judges, Justices Moldaver and Rothstein, to the Supreme Court. I do not know if that was out of partisanship or contempt for francophones, but it is clearly unacceptable, not just to us, but to all francophones in Canada, whether they are Quebeckers or members of a francophone minority community.

Even the new Minister of Canadian Heritage and Official Languages has said that the appointment of bilingual judges to the Supreme Court of Canada is not essential.

As Chantal Hébert rightly said in an article entitled “Bilingualism at the Supreme Court for dummies” published in the April 2010 issue of L'actualité:

The fact is that refusing to make the ability to function in both official languages a selection criterion for Supreme Court justices makes English the main language of an institution...at the heart of public life in Canada...

If the Prime Minister had not been able to address Canadians in both official languages and had not rectified the situation in a timely manner, he never would have been elected Prime Minister. That might have been better for the country, but we will talk about that again during the election campaign.

The same is true for the Minister of Industry and the Minister of Employment and Social Development, since they are both in the running to replace the current Prime Minister after he loses the election in 2015.

I am already hearing grumbling from my colleagues opposite, who will probably try to claim that under the current system, a unilingual francophone judge could also be appointed to the Supreme Court. My response to that is simple. In more than 145 years, not once has a judge who speaks and understands only French been appointed to the highest court in the country. Never.

Never in Canada's history have we nominated a French unilingual judge to the Supreme Court of Canada. Never.

At this point, Mr. Speaker, through you, I would like to address my colleagues who need an interpretation to understand what I have been saying in my mother tongue.

First, the laws of this country are not written in English and then translated. They are written simultaneously and independently in both languages.

Second, the Supreme Court of Canada is the very last legal recourse that a person has.

Third, as highly qualified as interpreters are, and here I would like to salute the House of Commons interpreters for their difficult and professional work, every language has its subtleties, particularly legalese.

Let me give an example. At a recent event, someone used the phrase “invités de marque”, which I would translate as important visitors or VIPs. It was translated as “Mark's guests”. That type of mistake, which completely changes the meaning of the sentence, could be costly in a court of law, particularly when it is one's last recourse.

I hope that my Conservative colleagues from Quebec will listen to reason this time and will remember where they come from. With the bill on bilingualism of officers of Parliament, they have already shown that it is possible to work together to promote Canada's official languages.

It is possible to do the same with the bill to require that Supreme Court justices be bilingual.

Supreme Court Act
Routine Proceedings

June 13th, 2011 / 3:05 p.m.
See context

NDP

Yvon Godin Acadie—Bathurst, NB

moved for leave to introduce Bill C-208, An Act to amend the Supreme Court Act (understanding the official languages).

I would like to thank the hon. member for Gatineau who has seconded my bill.

This is not the first time I have introduced this bill in the House of Commons. As members know, I am very persistent and I tell myself that one day it will happen. This bill would ensure that future Supreme Court judges will be chosen from among candidates who understand both French and English without the help of an interpreter. I believe that everyone should be equal before the law and should have the right, without distinction, to equal protection in law in both of the country's official languages.

I call upon members from all parties, all senators and the people of Canada to support this bill so that every Canadian is treated more fairly before the Supreme Court.

(Motions deemed adopted, bill read the first time and printed)