Justice Committee on Feb. 25th, 2014

[Robert Goguen, Conservative, Moncton—Riverview—Dieppe, NB]

Thank you, Mr. Chair.

I would like to thank the witnesses for having returned to testify, after their appearance in May of 2013.

Our mandate is to undertake a rather thorough review of sections 530 and 530.1 of the Criminal Code. As such, I would like to set some parameters. You will agree that this review does not apply to civil suits at all.

Mr. Francoeur, I appreciated your comments, which were the same as last time. Regarding sections 530 and 530.1 of the Criminal Code, our work seems to be fairly outdated. Last time, you said the following:

[...] the federal government's role in implementing linguistic provisions in the Criminal Code is limited. While the federal government has exclusive jurisdiction over changes made to the Criminal Code and related procedure, legal proceedings under the Criminal Code fall primarily within provincial jurisdiction.

You will agree that the administration of justice requires the participation of various stakeholders, among them translators and stenographers. It is there that we seem to find the weakest link in the system. We have done fairly well when it comes to bilingual judges and prosecutors, but according to the responses obtained from provincial attorneys general, there seem to be some deficiencies in the translation of disclosure documents, in simultaneous interpretation and even in stenography.

Could you briefly explain the issue raised by the Official Languages Act and the linguistic provisions of the Criminal Code? What could we do to help provinces tackle these problems? Is it a question of funding translation studies programs? We cannot very well force people to take translation courses. Do we need grants? Should we fund, through the roadmap, the Centre de traduction et de terminologie juridiques at Université de Moncton and the Centre canadien de français juridique in Winnipeg?

[Michel Francoeur]

Thank you for your question. My answer also applies to the previous question asked by your colleague.

As I mentioned earlier, we have access to a $40-million fund to be spread over five years, which translates to an annual budget of approximately $8 million. Some years, the fund provides more money, and in other years, less. Since 2003, we have received many requests to fund projects from that envelope.

[Robert Goguen, Conservative, Moncton—Riverview—Dieppe, NB]

What is that fund called?

[Michel Francoeur]

It is called the Access to Justice in Both Official Languages Support Fund, a fund paid for under the roadmap. We are now in the third generation of the roadmap, following the first one from 2003 to 2008 and the next from 2008 to 2013. We are now wrapping up the first year of the 2013-18 roadmap.

The Department of Justice provides $40 million in grants or contributions to a wide variety of organizations, whether those be provinces, provincial tribunals, universities, legal terminology centres or French-speaking jurists associations.

As indicated by its name, the fund's goal is to support access to justice in both official languages, which includes access to interpreters, translators and stenographers. Funding has been provided over the last several years to improve the language knowledge and skills of various stakeholders working in the justice system, whether they be stenographers, translators, judges, crown attorneys or probation officers. These are significant financial measures.

Allow me to explain why I said that my answer partly applied to the question asked by your colleague, who said that Parliament was passing or amending Criminal Code provisions, sections 530 and 530.1 in this case, only to leave it up to the provinces and territories to manage or implement them. Your colleague seemed to be saying that the federal government was not doing anything more. I must clarify that the Access to Justice in Both Official Languages Support Fund, a $40-million fund, is paid out on top of the $45 million for the Contraventions Act Fund. There is also the federal-provincial-territorial working group.

[Robert Goguen, Conservative, Moncton—Riverview—Dieppe, NB]

Is there a more direct and more practical method? We are hearing about funding and money, which is all well and good, but there is a shortage of simultaneous interpreters. How can we attract more people to this area of work? There are lawyers, judges, and defence attorneys, but there seems to be a shortage of interpreters. What incentives could they be offered? How are they trained? There does not seem to be a consistent pan-Canadian legal translation program. I am told that the Ontario model serves as an example. Is that so?

[Michel Francoeur]

I will ask my colleague Mr. Doyle to answer that question, as he is in a better position to do so.

[Robert Doyle]

This problem was raised by the Federal/Provincial/Territorial Heads of Prosecutions Committee. The problem does not exist in major centres, no matter what province we are talking about. In Saskatoon, it will not be difficult to find an interpreter, but in Carrot River, Saskatchewan, it will be more difficult.

There is funding for travel costs in the case of judges and lawyers. As for defence attorneys, they can generally be found on site. But interpreters living in major centres are often unwilling to travel. As a general rule, provincial contracts do not include provisions making it mandatory for them to do so. Many of them do not live in the same towns in which some trials are taking place, or do not wish to travel to those towns. These are problems that have surfaced in the regions.

[Robert Goguen, Conservative, Moncton—Riverview—Dieppe, NB]

Is that because their travel costs are not being reimbursed?

[Robert Doyle]

It is just that they simply do not want to travel. When we have a contract on offer, they reject it one after the other.

This is entirely provincial jurisdiction. The contracts would have to stipulate that they must travel when required, end of story, just as the judges and attorneys do.

The problem does not come from translation and interpretation schools that train these people. Thanks to the funding support, I think these schools are training enough people. The problem is that once they get a contract, they prefer to remain in the major centres to be closer to their families, among other things.

Criminal trials are increasingly lengthy. Interpreters are not simply travelling for a few days, as in travelling for one day, spending a second working at the trial and the third travelling home. They have to leave for three weeks, sometimes a month or even more. This is what makes it difficult at times to force people to travel.

[The Chair, Conservative, Mike Wallace]

Thank you for those questions and answers.

Our next questioner is Mr. Casey, from the Liberal Party.

[Sean Casey, Liberal, Charlottetown, PE]

I heard Madame Boivin's concern that we're mandated to do a comprehensive review and we've heard from less than half of the provinces and territories. I was interested in your response, Madame Soublière, that you have a mechanism in place to monitor all of the judicial pronouncements in connection with this section.

We're fortunate to have someone in your unique situation, Mr. Doyle, having represented francophone clients in a defence context and having now gone over to the dark side. My question is for you because you didn't get a chance to respond to Madame Boivin.

In your experience on both sides, can you allay my concerns that we haven't heard from half the provinces? Are there things that are bubbling up from those who work under you that we haven't seen in the five or six letters that have come forward?

[Robert Doyle]

I don't believe so.

For example, Prince Edward Island does not have bilingual prosecutors so they call on either the Public Prosecution Service of Canada, our Moncton office where all our prosecutors are bilingual, or the New Brunswick prosecution service, a provincial service. Therefore, whenever there is a trial that has to be conducted in the French language in P.E.I., either the feds or the New Brunswick prosecutors handle it.

Lately it's been mostly us and we have not heard of instances where issues surfaced. I can imagine it would be a problem if they wanted.... That's why we have this federal-provincial working group on the access to justice that's working on jury trials.

We have seen situations, such as those that surfaced in British Columbia a few years back, where someone wanted a trial in French and elected trial by jury, knowing that the system would not be able to respond, therefore hoping that eventually the charge would be withdrawn or stayed. That's something I have seen.

I'm a member of that subcommittee, and it's something the court administrators have mentioned to us. They've said they have not run into problems yet, but they can see that they would because they would not be able to find 12 good citizens who would be sufficiently bilingual to handle a case like that.

There are very few areas in the country where it would happen, because B.C. has adopted the policy of centralizing jury trials in one jurisdiction. I think it's Surrey but I may be mistaken. In any event, all bilingual jury trials will go there and the province will pay the cost of moving people there so they don't have to find local citizens in northern B.C., where there just aren't any.

The interpreter situation is another one that's been.... But it has been mentioned that those who have responded.... Again, Newfoundland, at the heads of prosecutions table, has said that there could be problems in Labrador. There have not been so far. They can provide the judge and the prosecutor, but they are not so sure about court personnel, and they might have to....

Then again, all these various actors are members of a federal-provincial group. They can call on each other for assistance in situations like that, so they're confident that they could respond, but then again, if it's a jury situation, maybe not and that's the thing.

Of course, obviously all the details that stem from trying to run a bilingual trial, where most witnesses are in the majority language but the accused wants a trial in a minority language.... For example, for a preliminary hearing, there is no defence evidence and only the crown presents evidence. Obviously that preliminary hearing is mostly going to be run in English, because often all the witnesses are going to be anglophones. It's not really different from providing interpretation to a Polish speaker, because obviously the system has to ensure that the accused understands the proceedings. Except for submissions by counsel, there wouldn't be a lot going on in French in that kind of a situation.

[The Chair, Conservative, Mike Wallace]

There's time for one more quick question, Mr. Casey, if you have another one.

[Sean Casey, Liberal, Charlottetown, PE]

It's interesting that your first example was from my home province. There is no shortage of bilingual lawyers in the province. The ones who practise the most en français are the ones who are employed at the national headquarters of the Department of Veterans Affairs, because they're constantly having to present in both languages.

One of the issues that is raised in one of the letters here is whether the rights under section 530 extend beyond trial to bail hearings, and I would also add appeal hearings.

I understand from the letter that is their practice.

Is it legislated, or is it just good practice, and should it be legislated?

[The Chair, Conservative, Mike Wallace]

Who would like to answer that question?

[Michel Francoeur]

One of the letters indeed deals with the issue of interim release with that province asking for clarification as to whether that is part of the trial. There is case law to the effect that indeed it is part of the trial. Maître Soublière could add to that.

There is also the issue of the full disclosure of evidence, the case law. So far it has been clear that there is no language right, or there's no requirement to translate the full disclosure of evidence. That being said, there can be cases where principles of natural justice or fundamental justice may require translation, in whole or in part, of the disclosed evidence.

But that's not a language right. It's a universal right that would apply to any language. It is not limited to the French and English languages. It's like the right to an interpreter, if you wish. It is not only for the French and English languages. It's a right that exists for all languages spoken by people, be they accused or witnesses, if they cannot speak one of the two official languages.

I'll let my colleague Maître Soublière—

[The Chair, Conservative, Mike Wallace]

Please be very brief, if you have more to add.

[Renée Soublière]

On the issue of....

[A voice]

Interim release.

[Renée Soublière]

I would like to address the issue of disclosing evidence. I think you mentioned, over and above the issue of the availability of interpreters and stenographers, a lack of resources to have disclosed documents translated. Saskatchewan mentioned the problem as well.

I would like to say that this aspect of the letter surprises us somewhat. As my colleague has just explained, case law from before 2008, as well as after 2008, demonstrates that there was never a language provision that confirmed or granted the accused the right to obtain translated disclosed documents under the obligation established in the Stinchcombe decision.

Of course, in some provinces, it is done. I know that in Quebec, some courts have ordered a translated summary of the evidence, not on the basis of linguistic rights, but rather on the basis of fairness. This has created a precedent, although it is not based on language rights.

[Robert Goguen, Conservative, Moncton—Riverview—Dieppe, NB]

Since the Stinchcombe decision, some parties have used it as a defence ploy, to delay the process.

[The Chair, Conservative, Mike Wallace]

I've given her lots of flexibility.

Do you have an answer to Mr. Casey's question?

[Renée Soublière]

Yes.

What I was going to say was that you're absolutely right. As the law now stands, only proceedings at the preliminary inquiry and trial are subject to the language of trial provisions of the Criminal Code.

This being said, we know that in certain areas of the country, in some jurisdictions, other applications are being held in the minority language. There is the case of R. v. Bauer in Ontario in which the court said that yes, these provisions will apply to peace bond proceedings, for instance.

In Nova Scotia, in the case of R. v. Schneider, which was an adjournment request, the courts allowed Ms. Schneider...or extended the application of the Criminal Code provisions to those circumstances.

[The Chair, Conservative, Mike Wallace]

We'll have to move on. Thank you very much for those questions and answers.

Mr. Dechert, from the Conservative Party.

[Bob Dechert, Conservative, Mississauga—Erindale, ON]

Thank you to our officials for being here today.

A number of you have mentioned the response letters which the committee has received from the various provinces and territories. I have a couple of questions about those.

First of all, do you have any general comments about what you heard from these various provinces and territories? Are you seeing any similar types of issues arising across the country, or are they simply unique situations in a few provinces?

Any general comments you have about the responses would be fine.