Justice Committee on June 17th, 2009

[Réal Ménard, Bloc, Hochelaga, QC]

Thank you, Mr. Chair.

[Brian Storseth, Conservative, Westlock—St. Paul, AB]

I have a point of order, Mr. Chair.

[The Chair, Conservative, Ed Fast]

Yes, Mr. Storseth.

[Brian Storseth, Conservative, Westlock—St. Paul, AB]

On a point of clarification, out of respect to Monsieur Ménard, I waited until the end of his questioning, but I'm not....

Just to make sure there was no problem with the translation, Mr. Fraser, with regard to Mr. Ménard's question as to whether or not there have been complaints about interpretation to the Supreme Court, is it correct that you said there have been no complaints about the interpretation at the Supreme Court, but there have been complaints at lower levels?

[Graham Fraser]

Again, not about interpretation, but about certain....

I will ask my colleagues.

Have there ever been complaints?

We do not have on file, that I'm aware of, complaints about the interpretation. But one of the problems about interpretation is that—

[The Chair, Conservative, Ed Fast]

I'm sorry, Mr. Fraser.

Mr. Storseth, that really isn't a point of order. It's a point of debate. You can always follow up with a question later on.

[Brian Storseth, Conservative, Westlock—St. Paul, AB]

It wasn't a point of debate, Mr. Chair. I asked for a point of clarification. I wasn't sure of the translation that came through.

[The Chair, Conservative, Ed Fast]

A point of clarification is not a point of order. I just want to clarify that.

We'll move on to Mr. Comartin.

You have seven minutes.

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

We didn't take any of that out of my time, Mr. Chair.

[The Chair, Conservative, Ed Fast]

No, we did not.

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

Good.

Thank you, Mr. Fraser, for being here.

When Justice Major was here, he repeated a fairly common perception—I was going to say “bias”, but that may not be fair—that the skills of a judicial figure are separate from the skills of a linguist. I think I'm fair in categorizing what he said that way.

I think the implication, not so much from what he said, but we heard the argument before, is that the skills of the linguist in being able to speak the other official language are not of assistance in judging judicial skills in this country. I think that's the essence of that argument.

I wonder if you could comment on that.

[Graham Fraser]

That's not my view. I think an understanding of both official languages is....

Particularly in a context in which the last court of appeal exists, the last place where a citizen or a lawyer can make a final case before the courts, I think it's very important that the lawyer or the citizen be understood in his or her language.

This is not about benefiting judges. This is about defining the characteristics that are required for the nine most important jobs in the Canadian legal system.

Again, I have a great deal of respect for Judge Major, but I'm not sure that somebody who doesn't speak the other language knows what he doesn't know. Donald Rumsfeld once talked about the known knowns and the unknown knowns. I don't know how a unilingual person can evaluate how important language knowledge is as a professional competence. By its very nature, if you don't speak another language, then you don't understand what you would understand if you did speak that other language.

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

You made a point in your presentation about the discussions that go on. I think just about everybody here is a lawyer. Those of us who are lawyers know that once the case has been heard, the judges retire to chamber and have a discussion, usually right away, and then subsequently there are discussions in terms of an exchange of views. The point you made in your brief was that when that occurs, it has to be conducted in one of the official languages unless all nine of them are capable of speaking both official languages. I think we understood that point.

What's the significance in terms of linguistic rights, or perhaps cultural rights, of that discussion having to always be conducted, currently, in English, if our understanding that Justice Rothstein is not yet able to speak French is correct?

[Graham Fraser]

Some of the judges would have cases and a discourse that had been developed and argued in French. A case that has been argued through the lower courts in French would have the judgments written in French, and the pleadings before the Supreme Court would have been in French. Then, in order to ensure that everybody understood, all of the francophone judges would all of a sudden have to do their analysis of what they had just heard in English. They wouldn't be able to engage in the kind of back-and-forth that you and I are engaging in or that Mr. Ménard and I engaged in earlier. Mr. Ménard and I could have a dialogue in one language and you and I could have a dialogue in another. If it were a requirement that this committee had to function in one language or the other, some people would be at a disadvantage.

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

Those are all the questions I had.

[The Chair, Conservative, Ed Fast]

Thank you, Mr. Comartin.

We'll move on to Mr. Rathgeber. You have seven minutes.

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

Thank you, Mr. Chairman.

Thank you, Mr. Fraser, and your legal counsel, for your attendance here before the committee and for your presentation.

I'm going to start by indicating that I am troubled by both your evidence and this bill. I am going to probably take my questioning from a tack that is slightly different from that of my friends on the other side.

I'm quoting from your brief. You indicate that “Parliament has recognized the need for every federal court to be able to conduct proceedings in either English or in French.” Am I incorrect in assuming that the Supreme Court of Canada does conduct its proceedings in either English or French, and a clear distinction has to be made between conducting its proceedings and mandating that all nine members of the bench be fluently bilingual in both official languages?

[Graham Fraser]

There is a distinction, and you're correct that people are able to make presentations before the Supreme Court, but they know when they do so that they have to make a strategic decision, evaluating whether they can afford to use the language in which they will be more fluent against whether they are going to pay a penalty for doing that because some of the nuance is not going to be understood. That's not the case in the federal courts, where people have the right to be heard and to be understood.

This issue of the right to not only be heard but to be understood is one on which the Supreme Court itself has evolved its own view of the right to a trial in French. In the Société des Acadiens case back in the 1980s, I think, the court at that point ruled that one had a right to be heard, but one did not have a right to be understood. Subsequent decisions in the Supreme Court have altered that view.

I will defer to Madame Giguère to explain a bit of the evolution of that Supreme Court position in terms of the right to be understood.

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

Please go ahead, very briefly.

[Pascale Giguère, Acting Director and General Counsel, Legal Affairs Branch, Office of the Commissioner of Official Languages]

Very briefly, yes, indeed there was a decision in the Société des Acadiens case. That decision still stands on the interpretation of the law. What has changed since then is the manner of interpretation that the court applies.

The court has interpreted the importance of language, and it has expressed a different view. In Beaulac, for example, where language played a major part, it has recognized the importance of that in that context. In a criminal case, I think if the Société des Acadiens case were to be heard again, there is a possibility that with the evolution of jurisprudence today, the court would reach a different result from the one it reached back then.

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

Mr. Fraser, I come from Alberta. I was until recently a practising lawyer with the Law Society of Alberta. I am concerned, quite frankly, that if this bill were to become law, the Attorney General would have a difficult time finding a competent jurist from the jurisdiction that I used to practise law in for an appointment to the Supreme Court of Canada.

You might know better than I. I don't know if your office maintains statistics on bilingual judges in western Canada--and I know there are some--but my suggestion to you is that there are not many. But perhaps you have data to prove me wrong.

[Graham Fraser]

Mr. Chairman, through you, I would observe that the Chief Justice is from Alberta and is fully competent in being able to hear cases in both languages. She learned it as an adult because she decided it was a critical competency for her to have a full and complete understanding of the law.

There is a bilingual judge in Alberta. There are 39 lawyers who are members of the Association des juristes d'expression française de l'Alberta. My sense is that if this private member's bill were to become law, you would be surprised at how many lawyers or judges would decide that it would be worth their while to learn the other official language.

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

I appreciate that you're not a lawyer, Mr. Fraser, but certainly your legal counsel are. You have a sense of what happens at the Supreme Court of Canada. You realize that it's appellate advocacy, that they don't hear evidence, that their decisions are based on written factums that are filed in advance, that upon the conclusion of a hearing they deliberate, often for months and months. I'm not convinced yet that this language barrier, the inability of an esteemed justice like retired Justice Major, is a disadvantage, even if the litigant....

It's not the client. It's not the litigant who's in front of him at the Supreme Court level; it's his counsel. He has the benefit of time and the benefit of being able to ponder and reponder and read a factum that has been translated. I'm just not convinced that a litigant is prejudiced through the translation services.

Could you or perhaps one of your legal counsel help me see where the problem is when a justice has the benefit of a written factum and the benefit of time to deliberate and reconsider?

[Graham Fraser]

I will defer to my legal counsel, but my strong belief is that because we live in a country with a bijural system and two concurrent legal systems that meet at the Supreme Court, and we have jurisprudence that is written and developed in both official languages, and laws that are written in both official languages in which the final arbitrator adds to the nuance as to which version is going to have precedence, having a judge who understands only half of the jurisprudence, half of the decisions that are written, and only the left-hand column of the law means that they are not as competent as somebody who can read both columns, both separate issues, both sets of jurisprudence.

Could you give us more information about that?

[Christine Ruest Norrena, Legal Counsel, Legal Affairs Branch, Office of the Commissioner of Official Languages]

Yes. To my knowledge, there is simultaneous interpretation during the hearings before the court, but it's my understanding that the parties can submit their memorandums in the language of their choice, so there's no guarantee that the judge will understand the facta that the party has submitted.