Evidence of meeting #32 for Justice and Human Rights in the 40th Parliament, 2nd Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was language.
A recording is available from Parliament.
4:35 p.m.
Retired, Puisne Judge of the Supreme Court of Canada, As an Individual
The only complaint would be on the volume, mechanical, that the translation's not working. That's not what you're asking. Otherwise, there was never a complaint.
4:35 p.m.
Conservative
The Chair Conservative Ed Fast
Second, during your experience on the bench, of the judges you would sit with, how many of them do you believe were bilingual to the level that would be required by the bill before us?
4:35 p.m.
Retired, Puisne Judge of the Supreme Court of Canada, As an Individual
I'd say quite a few. It's hard to say in numbers, but I would say.... Are you talking about the Supreme Court?
4:35 p.m.
Retired, Puisne Judge of the Supreme Court of Canada, As an Individual
I'd say at least half, maybe a little more, would meet this test.
4:40 p.m.
Conservative
The Chair Conservative Ed Fast
And the remainder would require translation services and presumably use an earpiece?
4:40 p.m.
Retired, Puisne Judge of the Supreme Court of Canada, As an Individual
There might be two or three, maybe, who really need translation services. I think that sometimes people whose knowledge of French is not that great should use the translation, but vanity being what it is, they may like to give the impression that they understand fully. I'd give them the translator because of later conversations.
4:40 p.m.
Conservative
The Chair Conservative Ed Fast
Thank you so much. Your testimony has certainly been helpful, and we'll take it under advisement as we move forward with this bill.
We'll suspend for five minutes.
4:44 p.m.
Conservative
The Chair Conservative Ed Fast
We are now reconvening the meeting.
We're pleased to welcome a number of further witnesses to assist us in our review of Bill C-232. I welcome Graham Fraser, our Commissioner of Official Languages, and with him are Pascale Giguère and Christine Ruest Norrena of the legal affairs branch.
Welcome to all of you. I think you understand that you've got 10 minutes for a presentation and then we'll open up the floor to questions from our members.
Mr. Fraser, you've got 10 minutes.
4:45 p.m.
Graham Fraser Commissioner, Office of the Commissioner of Official Languages
Thank you very much, Mr. Chairman.
Mr. Chairman, honourable members, I would first like to thank you for giving me the opportunity to speak to you about my position on Bill C-232, which amends a section of the Supreme Court Act on the bilingualism of judges.
Over the past 40 years since the royal assent of the Official Languages Act, language rights have developed and advanced in Canada through lengthy discussions led by three key stakeholders. Initiated by the Parliament of Canada when the Royal Commission on Bilingualism and Biculturalism was formed, this discussion also mobilized the Canadian public and the courts, especially the Supreme Court.
The dialogue surrounding the application of the Official Languages Act and the Canadian Charter of Rights and Freedoms has led to new case law, building on the relationship between Canada's English-speaking and French-speaking peoples. It is a relationship that has defined our past, that informs our present and that will continue to shape our future.
One of the most eloquent statements on the importance of language as part of personal and collective identity comes from a Supreme Court decision in the Ford case in 1988, and I quote:
Language is not merely a means of interpersonal communication and influence. It is not merely a carrier of content, whether latent or manifest. Language itself is content, a reference for loyalties and animosities, an indicator of social statuses and personal relationships, a marker of situations and topics as well as of the societal goals and the large-scale value-laden arenas of interaction that typify every speech community.
This view that the Supreme Court expressed so eloquently has influenced my position on the debate that brings us here today.
The bijural nature of Canada's legal system is another factor that has influenced me. Canada has not one legal system but two. We're one of a small group of countries to enjoy the richness of both common law, which originated in Great Britain, and the civil code, which flowed from Roman law to the Napoleonic code, to New France, Lower Canada, and then Quebec. This is a huge asset for our legal tradition and for many of our lawyers who function within both legal traditions, which together cover most of the world.
As the American legal scholar John Henry Merryman wrote: “It is difficult to overstate the influence of the civil law tradition on the law of specific nations, the law of international organizations, and international law.”
This does not mean that all Supreme Court judges should be educated in both common law and the civil code, but they should be able to hear arguments from counsel who've been trained in either tradition, in English or in French, without requiring interpretation. As you know, Canadian laws are not translated; they are written in both English and French. The judges in the highest court of the land should therefore be able to understand nuances found within them when there is a difference between the two versions.
If Parliament were to pass this bill, it would send a powerful message to Canada's law schools that mastering both official languages is a pre-requisite for full mastery of the law, and for qualification for the most important and prestigious positions in the Canadian judiciary.
The nature of Canadian linguistic duality means that Canadians have a right to be served by the state in the language of their choice; it is, in effect, a right to be unilingual. The state is officially bilingual so that the citizen does not have to be. And citizens can live full and prosperous lives in Canada speaking only one official language, with no need to learn the other. This puts the burden of bilingualism on the state, and more particularly, on those who play national leadership roles.
Parliament has recognized the need for every federal court to be able to conduct proceedings in either English or in French. Paradoxically, there's only one exception: the Supreme Court. In my view this has perpetuated an unfortunate separation.
Over 30 years ago, the late Jules Deschênes, the Chief Justice of the Superior Court of Quebec, gave a speech in Toronto in which he warned of what he called legal separatism. I quote:
“Quebec has shown the willingness and the ability to contribute to the building of [...] a national scheme of federal law, but the legal community of the rest of Canada has, by and large, closed itself off and away by simply ignoring the Quebec contribution,” he said. “There now exists an actual separation in legal Canada, but it has been worked upon Quebec from without, not by Quebec from within.”
He noted that the academic legal work that had been done in Quebec had gone unnoticed in the rest of Canada in the fields of commercial law, criminal law, and administrative law, and he went on to compare the absence of citation of Quebec decisions.
One of the more impressive things about the Supreme Court has been how much more bilingual it became over the three decades since Deschênes spoke, but it only takes one unilingual judge to require that all discussions occur in one language only.
The debates surrounding the appointment of bilingual judges is nothing new. Like my predecessors, I have already expressed my view on the matter at various forums. In May 2008, I appeared before the House of Commons Standing Committee on Official Languages and shared my view on the appointment process for the next Supreme Court of Canada judge. At that time, I pointed out that knowledge of both official languages should be among the desired qualifications for judges of the highest court of the land. In my opinion, such a standard would show all Canadians that the Government of Canada is committed to linguistic duality, in a way that is both symbolic and practical.
One year later, I still hold this belief. In fact, it seems essential to me that an institution as important as the Supreme Court of Canada not only be composed of judges with exceptional legal skills, but also reflect our values and our Canadian identity as a bijural and bilingual country.
We all know that the Supreme Court Act stipulates that there must be regional representation in the court. This important principle is strongly supported by both the public and parliamentarians. However, I find it strange that this principle is used as an argument against recognizing bilingualism as an essential qualification. I also find it hard to accept the argument that requiring Supreme Court judges to be bilingual would compromise the rights of a unilingual individual who might want to access a seat in Canada's higher court.
On the one hand, knowledge of a language is a qualification that can be acquired. On the other hand, bilingualism is already a requirement for judges of other courts in the country and for some 72,000 positions in the federal administration, so that Canadians can receive adequate service. I don't think that the bar should be set lower for Supreme Court judges.
In order to respect all Canadians, it's important to ensure that they are all served by judges of the highest distinction and greatest ability, who can hear and understand a case in either official language. 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.
I recognize the importance of selecting candidates for the judiciary based on each candidate's professional skills and merit. Where the judicial appointment process is concerned, bilingualism is an important criterion and should be a primary factor of candidates' merit and legal excellence.
The amendment proposed in Bill C-232 is for bilingualism to be a prerequisite for appointment. I strongly support this amendment.
Thank you very much.
Now I would like to answer your questions.
4:50 p.m.
Conservative
The Chair Conservative Ed Fast
Thank you, Mr. Fraser.
We will move on to Monsieur LeBlanc for seven minutes.
June 17th, 2009 / 4:50 p.m.
Liberal
Dominic LeBlanc Liberal Beauséjour, NB
Thank you, Mr. Chair.
Thank you, Mr. Fraser, for your comments. I fully share your opinions. In fact, I had not noticed the contradiction you so clearly highlighted, i.e., that candidates must be bilingual to obtain some positions in the public service or to become a general in the army, but that those who sit on the Supreme Court do not have to meet the same requirement. Having highlighted that in such a simple and eloquent manner is very useful.
Some people will say that competency in the law, legal scholarship, and understanding of the role of the judiciary--all of the traditional factors one associates with judicial competence--should be the sole factors in determining a Supreme Court appointment. To introduce a linguistic competence or bilingualism requirement would lower the bar and give less-qualified individuals a chance to be appointed, whereas an allegedly more qualified or competent person who just doesn't have this bilingualism requirement would be blocked.
What is your answer to that? That's the knee-jerk reaction if we're appointing a judge. The judge from Atlantic Canada who replaced Mr. Justice Bastarache, Justice Cromwell, is a perfect example of a bilingual, highly qualified, competent jurist from Nova Scotia.
What do you say to that obvious criticism?
4:55 p.m.
Commissioner, Office of the Commissioner of Official Languages
My strong belief is that mastery of both official languages is a critical competence. So when someone comes forward and says, or says about a candidate, that he is very competent, that he has all of this experience, but he doesn't have the ability to hear a case that's presented before the Supreme Court in the language in which that case is presented, then he is missing a critical competence. He is actually not as competent as a candidate for the Supreme Court who does have that ability.
We are now in a position where nine of the ten judges are able to hear cases without interpretation--sorry, eight of the nine. Thank you for the correction. The result of that is that when the judges are in chambers and are having their discussions, even if it's a case about language in Quebec--and we're waiting for a number of decisions in which the previous judgments were written in French and the presentations that were made before the court were made in French--the debate that is presumably going on, perhaps even as we speak, about that case will have to happen in English; otherwise, one of those judges will not understand. Well, that's a competence that judge does not have. My view is that this is a skill that is a critical competence to do the job.
4:55 p.m.
Liberal
Dominic LeBlanc Liberal Beauséjour, NB
Thank you.
Mr. Chair, my colleague Madam Coady might have a brief question.
4:55 p.m.
Liberal
Siobhan Coady Liberal St. John's South—Mount Pearl, NL
Thank you very much. I certainly appreciate you coming here today to the speak to the committee and take questions. Thank you for preparing your brief as well.
I hail from Newfoundland and Labrador. As you know, we've been 60 years in Confederation and 500 years as an entity, and we've not yet had a member of the Supreme Court of Canada. We do speak two languages in our province, and we do have French language schools, but I fear that because we are not what one would consider a truly bilingual province, perhaps the competency or the excellence in French may not be there, and I would worry--and I have heard a number of my colleagues from Newfoundland and Labrador question this--whether or not that would be an impediment to having a Newfoundlander and Labradorian sit on the highest court of this land.
Could you comment on that at all?
4:55 p.m.
Commissioner, Office of the Commissioner of Official Languages
Well, I would say two things. One is that I've been very impressed by the commitment that Memorial University has made to providing language training. I've been very impressed by the number of students from Memorial University who have taken advantage of those programs, who have gone to spend a semester or a year at St. Pierre and Miquelon. I would note that the CEO of Canada Post, Moya Greene, is from Newfoundland and has spent time in St. Pierre and Miquelon herself.
My own view is that the nature of the country is that it is quite possible for people to spend their career in their province entirely satisfactorily in the dominant language without the need to learn another, but when they decide they want to play on the national stage, it's at that point that the mastery of both official languages becomes critical.
I've been struck by the fact that in some ways the extremes of the country grasp that reality. There is a degree of commitment to immersion education, to providing opportunities for students at Memorial. There's similarly a commitment in British Columbia. There are 30,000 kids in British Columbia who are in immersion. They're lining up to get their kids into immersion. They have to allocate those places by lottery, because people in British Columbia understand that if they want to stay in British Columbia it's not actually critical--although it would be a lot easier to deliver the Olympics in both languages if there were more people who spoke both languages--but to play on the national stage, this is a critical competence.
4:55 p.m.
Conservative
The Chair Conservative Ed Fast
You have half a minute, so it will have to be a really quick question and quick answer.
4:55 p.m.
Conservative
4:55 p.m.
Bloc
Réal Ménard Bloc Hochelaga, QC
Thank you, Mr. Chair. It is a pleasure to welcome the commissioner. I am extremely pleased, not to say euphoric, to have heard your testimony, because I was a bit — and I say this with all due respect — disappointed by the previous witness.
I believe that our colleague, Mr. Godin's, bill, is essential in order to send a clear message. It will help prepare the next generation of jurists by informing them of the rules of the game. In our legal system, people do not compete for seats on the Supreme Court, they are appointed. Partisan considerations might sometimes be taken into account, but there is no doubt that the Supreme Court is composed of highly skilled justices. Future members of the judiciary will know that the knowledge of our two official languages will be one of the factors used to assess competency. That is extremely important.
I was somewhat surprised. A colleague whose name I will not mention asked a question earlier that might be of concern to you in your role of commissioner. He asked the justice whether, to his knowledge, complaints had already been filed concerning the use of French before the Supreme Court. With all due respect to the previous witness and his former position, he did not seem to take the matter very seriously.
As the commissioner, are you able to tell us of any representations that were made to you by members of the legal community, regarding the lack of linguistic ability of some justices? I understand that this is a sensitive area, but have you already received complaints in that regard?
5 p.m.
Commissioner, Office of the Commissioner of Official Languages
I have two things to say about that. First of all, with all due respect to the previous witness, I do not believe that a unilingual person is best suited to evaluate the quality of the interpretation.
When I watch a film in French with English subtitles, I say to myself that I would not have translated a given sentence that way. However, when I watch a film in German with subtitles, I cannot say whether the film has proper subtitles or not.
I know that one of the witnesses this week had concerns about his own submission before the Supreme Court. The witness made similar comments one year ago, when we appeared before a committee. I wondered whether he was exaggerating.
I am often very impressed by the work of the interpreters. Theirs is an extremely difficult job. I greatly admire the work done by interpreters. I know a few of them and find that they do a masterful job. Nevertheless, I remember watching one of my appearances before a committee on CPAC and telling my wife that that was not exactly what I had said.
When you express nuances, it is quite possible that the interpretation might not convey the exact meaning of what you are trying to say. That might happen to a lawyer who pleads his case before the Supreme Court.
We have not received any complaint regarding the interpretation service, but we did receive two complaints regarding certain deficiencies within other federal tribunals, because of a shortage of bilingual justices. I spoke of that problem with the Minister of Justice.
5 p.m.
Bloc
Réal Ménard Bloc Hochelaga, QC
That really is very interesting.
I was a member of the special committee that questioned Justice Rothstein. I asked him a question with my customary elegance and courteousness, as I am incapable of being malicious. He said he would learn French, but I do not think that the workload of a Supreme Court justice makes for ideal conditions to learn a second language. That is why it is better to learn earlier than later.
Do you share my point of view?
5:05 p.m.
Commissioner, Office of the Commissioner of Official Languages
I completely agree. I was surprised to learn that language training programs are offered to justices. These programs are not intended for the justices of the Supreme Court of Canada but for those starting out their careers. I have never taken the course, but I have heard very good things about it. The training is available; it is an intensive course in legal French, if I can call it that.
Some law schools offer specialized courses. The University of Western Ontario, I believe, offers a specialized course for lawyers who want to master the technicalities of legal terminology in French. The earlier you learn a second language, the better.