Justice Committee on June 17th, 2009

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

Will interpretative services not interpret the factum?

[Christine Ruest Norrena]

They interpret the oral arguments before the court at the hearing.

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

But not the factum? Is it up to the litigants to translate the factum if they so choose?

[Christine Ruest Norrena]

It's my understanding that the litigants will submit it in the language of their choice and then it would be up to the judge to—

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

Or both.

[Christine Ruest Norrena]

Yes. To have his services.

[Graham Fraser]

But again, what that means is that the burden of bilingualism, I think, is being put on the lawyer, and ultimately the citizen who is paying for that lawyer, rather than on the court.

[The Chair, Conservative, Ed Fast]

Thank you.

If I could just ask for one clarification, you mentioned that Chief Justice McLachlin was appointed from Alberta. She was my evidence professor in law school. I recall her being appointed from the Court of Appeal of British Columbia.

[Graham Fraser]

I stand corrected. I think she also served on the courts of Alberta. She practised in Alberta. She's from Alberta, but I stand corrected.

[The Chair, Conservative, Ed Fast]

All right. We'll move on to Monsieur Lemay.

You have five minutes.

[Marc Lemay, Bloc, Abitibi—Témiscamingue, QC]

I would first like to thank you for appearing before us.

In your presentation, you mentioned the Supreme Court decision in the Ford case in 1988, but you did not give a reference to it. References are usually given in footnotes. Would it be possible to obtain it?

[Graham Fraser]

I apologize, we will send that to you.

[Marc Lemay, Bloc, Abitibi—Témiscamingue, QC]

Obviously, that is exactly what I told the Honourable Justice Major.

By the way, what was the object of that case? Do you recall?

[Graham Fraser]

It was a linguistic case. It dealt with signage in Quebec, I believe.

[Marc Lemay, Bloc, Abitibi—Témiscamingue, QC]

I would much appreciate having a reference to that decision. If it is the one I am thinking of, it is an indication that the subtleties of language and translation are such that the signs have one meaning in English and another in French. In my view, it would be important for my colleagues to have a copy or, at least, the reference.

[Graham Fraser]

Mr. Chair, we can probably find the decision and send you a copy.

[Marc Lemay, Bloc, Abitibi—Témiscamingue, QC]

I once accompanied a colleague to the Supreme Court. My experience there is limited to that one time.

Would you agree to say that the important thing at the Supreme Court is not to be heard but to be understood?

[Graham Fraser]

Yes, absolutely.

[Marc Lemay, Bloc, Abitibi—Témiscamingue, QC]

I consider myself to be bilingual and able to understand English, but I must say that when I was listening to the English version of what was being said earlier in French, with all dues respect to our interpreters, who do remarkable work, I noticed that they had a hard time keeping up with the faster pace. In such circumstances, proceedings might clearly take more time or become difficult and complicated. The same is true for the Supreme Court. Those who have been there know: in a given case, a justice takes the lead and asks the questions. During your presentation, other justices can exchange among themselves, but generally speaking, there is one justice, and when he is very knowledgeable of the file, those exchanges take place. The problem is with the translation, that is where the subtleties come into play. The factum is submitted in the language of one's choice, but if it is not translated, that is it.

Are you sure that the Canadian Bar and Quebec Bar, in particular, did not call for an increased level of bilingualism at the Supreme Court, which is the tribunal of last resort?

[Graham Fraser]

I must correct the record: there was a unanimous vote on that at the National Assembly around the time when Justice Bastarache retired. When I was speaking of complaints, I was specifically referring to those that we received at the Office of the Commissioner of Official Languages.

[Marc Lemay, Bloc, Abitibi—Témiscamingue, QC]

With all due respect, as a lawyer who could argue a case before the Supreme Court, I would never file a complaint, I would never say that I have been badly served. I believe that, for strategic reasons, no one would do so. A lawyer who has argued a case before the Supreme Court would never file a complaint. That would have to be taken up by an association of defence counsel or the Canadian Bar Association. They are of interest to me.

Have you received any comments in that regard?

[Graham Fraser]

I think that those organizations came out with clear positions at the time when the issue began to be debated. You received several witnesses. I will ask Ms. Giguère to speak to that, there are perhaps other institutions that I did not hear about.

[Pascale Giguère]

I think that the association of French-Speaking jurists of Ontario issued a statement at the time Justice Bastarache's successor was being appointed. But it also expressed the need for there to be bilingual justices on the Supreme Court. The Canadian Bar Association also issued a very clear statement to the media in that regard. In fact, it had adopted a resolution that was made public.

[Marc Lemay, Bloc, Abitibi—Témiscamingue, QC]

I am not sure if it is the case, but it seems that when you argue a case before the Supreme Court, simultaneous interpretation is provided. However, there is no simultaneous interpretation when justices meet to discuss cases with their research assistants. All justices benefit from their services. These are highly-skilled colleagues.

[Graham Fraser]

Not to my knowledge, but I will ask the question.