Justice Committee on March 4th, 2014

[The Chair, Conservative, Mike Wallace]

Thank you very much.

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

[Sean Casey, Liberal, Charlottetown, PE]

Thank you, Mr. Chairman.

The Province of New Brunswick told us that it had problems finding enough interpreters. Does that problem exist elsewhere?

[Allan Damer]

I can answer that question. We can say that it is, in fact, a huge problem.

I do not know if Mr. Rémillard already mentioned this, but in 2010, the Fédération des associations de juristes d'expression française de common law inc. created the Centre canadien de français juridique to provide better training for support staff and provincial court judges. The centre includes a component for interpreters.

We find that in practice, the interpretation is not reliable. It is not because the interpreters are unable to speak French, but because they do not have specialized legal training in French.

If the nuances of the lawyers' arguments are not interpreted properly before a court of law, that can adversely affect my client's case. So I have to step in from time to time to correct the interpretation by the interpreter. I do not do it out of lack of respect for the interpreter, but instead to clearly explain the case to the judge. Since I am bilingual, from time to time, I can explain to the judge that my comments were not interpreted accurately. That even happens at the Alberta Court of Appeal.

I can give you an example of something that happened last spring, when we were appearing before the Alberta Court of Appeal. There were two interpreters on our team. In presenting our arguments, we referred to "l'onglet 2" of our brief. That translates into English as "tab 2". The interpreter understood "anglais 2" and translated it as "English 2". Those are the kinds of fundamental things that can adversely affect a case. In this case, since there were several lawyers, we were able to share the work and ensure that the judges hearing the case received accurate interpretation of all of the arguments presented.

Interpreter training could therefore be an important part of the Centre canadien de français juridique.

I think I will give the floor to Mr. Rémillard to allow him to add some comments of his own.

[Rénald Rémillard]

We hear that question often. Criminal lawyers have told us that there are problems with court interpreters in some provinces.

It varies from one province to another. In some cases, the employees or the court interpreters are well trained. They are provincial employees, be it at the Department of Justice or in another department. These employees have a rather high level of bilingualism in the legal field. In other provinces, however, that is not the case. They call upon interpreters who do not have training in the legal field to interpret testimony or things of that nature.

Problems with court interpreting have been raised primarily in the western provinces, namely in Saskatchewan and Alberta, but also in other provinces, though to a lesser extent.

Two years ago, when we consulted court interpreters across Canada, most of them told us that there was a need for training and that it was a general deficiency. That is what we heard in many regions.

There is also another problem with court interpreters. When they are not provincial employees, they are generally people who do conference interpreting, in the health and legal fields. To do court interpreting, they must take training on their own time. So it is more cost effective for them to stick to conference interpreting. In some cases, it's a personal matter, they will simply prefer to not do any court interpreting, either because it does not pay enough, because there is mandatory training, or because the risks are too high.

The problem is clearly a reality in some provinces.

[Sean Casey, Liberal, Charlottetown, PE]

Are there sufficient resources at the federal or provincial levels to train these interpreters? What role do the governments play now? Is there an opportunity to improve their role in the training of interpreters?

[Allan Damer]

Mr. Rémillard can probably answer that.

[Rénald Rémillard]

Yes. I think that the jurilinguistic centre at the University of Moncton offers some training and that it is primarily provided in New Brunswick as well as in the eastern regions of the country. An interpretation master's program was set up at Glendon College, in Toronto. That master's level training deals with conference interpreting in the legal and medical fields.

In the case of that master's program, the legal resources are undoubtedly lacking. Since I am the part-time director of the Centre canadien de français juridique, I can address the issue. There are not many initiatives for court interpreting, and French legal terminology. I think there is a need to increase the number of initiatives in this area to better train interpreters and to provide a certain level of quality across the country.

That is a very good question. Some practitioners have raised concerns with regard to court interpreters, as I mentioned. It is not the case in all provinces, but it certainly is in many of them.

[The Chair, Conservative, Mike Wallace]

Thank you for those questions and those answers.

Our next questioner is Mr. Dechert from the Conservative Party.

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

Thank you, Mr. Chair.

Thank you to each of our witnesses this morning for sharing their knowledge with us.

I'm from Ontario, and I want to ask you a question about the situation in Ontario. I believe you mentioned that FAJEF also covers the province of Ontario. You may be familiar with the fact that in 2010, the Ontario government established a committee, known as the French Language Services Bench and Bar Advisory Committee, to look at issues of access to justice in both languages. In June 2012 the committee submitted a report, and instituted the French language services bench and bar steering committee in order to implement the recommendations in the report.

First of all, are either of you familiar with that committee and the report?

[Allan Damer]

Mr. Rémillard, do you want to comment on that?

[Rénald Rémillard]

Yes, we are familiar with that. The member of our federation who is part of the Association des juristes d'expression française de l'Ontario participated significantly in this study, as did Mr. Paul LeVay as president of the same association. We are aware of what is happening in Ontario. We are also aware that it might be a good idea, in some cases, to use what is being done in Ontario outside of the province.

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

That was going to be my next question—if you thought it should be followed as a model in other provinces—and I think you just answered that question.

Just generally, are there other provinces that have taken a unique and more effective approach to access to judicial services in both official languages that you think could be emulated by others? You think the Ontario model is worth noting; are there any other models out there that we should also know about?

[Rénald Rémillard]

I know a model that is used here, in Manitoba. Because I come from this province, I am probably more familiar with what is being done here. In the provincial court, we have added a key aspect to the judge's checklist. From now on, at the first appearance, judges must advise the accused of his or her right to use French or English and to have a trial in one of the two languages. The adding of that aspect to the checklist guarantees that the judge will ensure that the accused is advised that he or she may use French or English. While it is something simple, this process integrates a mechanism that is uniformly applied.

I have been told that judges in the New Brunswick provincial court automatically apply that in some regions, but not in all regions. When there is a checklist that applies to the entire province, it is the judge's duty to advise the accused that they may use French or English.

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

Thank you for that. I appreciate it very much.

My next question is changing direction a little bit. It comes from the response from the Minister of Justice of Saskatchewan. I don't know if you've seen his response, but Saskatchewan did point out one issue they're having with respect to French bail hearings. I know that bail hearings are not specifically part of the provisions of the Criminal Code that we're examining in this study, but it did seem to me that it was a matter of concern if people can't get timely bail hearings in both official languages. Their specific comment was that they have difficulty finding enough bilingual prosecutors, judges, and court officials to conduct those bail hearings on a timely basis. Therefore, sometimes the bail hearings are delayed.

Can you comment on that in Saskatchewan? Have you seen that experience in any other province? Do you think that is something that the Criminal Code should also cover?

Mr. Rémillard, I guess, or either one.

[Allan Damer]

Obviously, I do not have the same experience in Saskatchewan, but according to some justice of the peace colleagues, Alberta sometimes uses video conferences, like the one we are doing now. That is perhaps a way of dealing with the shortage of staff, francophone or French-speaking justices of the peace or prosecutors. That tool could be easy to use, but it is still in development, as we saw this morning, when we had some technical problems from time to time.

Mr. Rémillard would perhaps like to add something.

[Rénald Rémillard]

Yes, we will have to work out the kinks in video conferencing.

Furthermore, many students in immersion go on to law school, namely out west. That's one example I can give you. As a result, the shortage of bilingual people will become less of a problem in the future.

The bilingualism of prosecutors and people working in legal aid is increasing, thanks to immersion. A growing number of anglophone members of law associations have French as a second language. It's certainly the case in the western provinces, as well as in Ontario and Nova Scotia.

I believe bilingual capacity is increasing. The shortage of bilingual people is likely to be less of a problem in the future, particularly thanks to the training offered across the country. That's one way of increasing the bilingual capacity of the system. There are a lot fewer constraints in that sense than there were 5, 10 or 15 years ago.

[The Chair, Conservative, Mike Wallace]

Our next questioner is from the New Democratic Party, Madam Péclet.

[Ève Péclet, NDP, La Pointe-de-l'Île, QC]

Thank you very much, Mr. Chair.

I would like to thank the witnesses for their testimony.

My first question has to do with the role of the judge. Since Bill C-13 was adopted, the judge must inform the accused of his right to stand trial in the official language of his choice. However, the judge is under no obligation to inform the accused personally. He must simply ask if the accused was made aware of this right.

What can you tell us about this provision? In your respective provinces, has it caused any problems?

[Allan Damer]

Sometimes, judges refuse to inform accused persons of their right. I reviewed letters sent to the committee by the provinces and I noticed that Alberta's justice minister seemed unaware of article 530(3) of the Criminal Code, which asks the judge to make an active offer. That's part of the problem.

Colleagues from other regions in Canada seem to have the same issue. Certain judges are not informed or trained in that regard, and they do not recognize their obligation to inform the accused.

I will let Mr. Rémillard speak, as he may have something to add.

[Rénald Rémillard]

Indeed, the situation varies greatly from one region to the next, and even within provinces. People in certain regions tell us things are going well, that the accused are well aware of their rights. In other regions, this is much less the case. The situation greatly varies. It is not uniform across the country, and that's a problem.

Some efforts were undertaken to change codes of conduct in order to compel attorneys to inform their clients of their rights. For example, changes were made to the attorney code of conduct in New Brunswick and Ontario. Even though the judge must make sure that the accused are informed of their rights, it is just as important that attorneys inform their clients as to whether or not they have the necessary linguistic skills to represent them during the trial that might take place in French or in English. There has been some work done in that sense.

[Ève Péclet, NDP, La Pointe-de-l'Île, QC]

In its report, the Senate committee recommended that the law be changed in order to compel the judge himself to inform the accused of their rights. According to you, should this recommendation constitute an amendment to part XVII of the Criminal Code?

[Allan Damer]

I think it would be a good idea to make such an amendment to the law. At the same time, it is important to provide good training for judges, because if they are not made aware that they must inform the accused of their rights, the law will not be properly enforced.

[Rénald Rémillard]

I agree with my colleague. Because the judge is an authority figure, he has a certain credibility. If a judge tells the accused that he has the right to proceed in English or in French, I personally believe that that meets the active offer requirement. It's a bit like a school principal who tells a student that he has the right to do such or such a thing. It has real weight.

In my opinion, this meets the active offer requirement. When the offer comes from someone in a position of authority, it probably has more influence, which further favours the use of this right.

[Ève Péclet, NDP, La Pointe-de-l'Île, QC]

You are reading the provinces' answers, but do you have any mechanisms to hold discussions with the provinces about, for example, problems that arise from the implementation of part XVII or ways in which provinces could improve its implementation? Do you have discussion groups or contacts with the provinces that allow you to oversee this part of the Criminal Code's proper application and improvement?

[Allan Damer]

I believe that some provinces, including Nova Scotia, meet regularly with the Minister of Justice or one of the minister's representatives. I don't know what the other provinces do, but perhaps Rénald could provide you with more information about that.