Official Languages Committee on May 8th, 2008

[Yvon Godin, NDP, Acadie—Bathurst, NB]

In all the provinces, the government, if it wanted—it seems we'll have to pass an act to give it a little kick in the pants—could find qualified people or send out a signal that, if an individual isn't bilingual, he or she isn't qualified. We could say the reverse. But now it's being said that, if a person is bilingual, he or she isn't qualified, since they say you have to recruit the most qualified person.

[The Chair, Conservative, Steven Blaney]

Thank you, Mr. Godin.

Now we'll move to the government side.

Mr. Petit.

[Daniel Petit, Conservative, Charlesbourg—Haute-Saint-Charles, QC]

Thank you.

Good morning, Mr. Fraser. Good morning to the other guests as well. Welcome to the committee.

My question is for Mr. Fraser, Mr. Doucet and Ms. Duchesne. I've been a lawyer for 35 years and, unlike Mr. Doucet, I haven't had the opportunity to go to the Supreme Court. I worked with ordinary people in the lower courts. What do those people want? First, they want access to justice in their language. The information must be laid in their language. In other words, if they are accused of something, they want to be able to read the indictment.

If I don't have any money, I want federally-funded legal aid to enable me to get a lawyer who speaks my language. When I appear before the court, I want the evidence provided to me by Crown counsel, since we are at the federal level, to be in my language. That's access to justice. When I appear before the judge, I'll see whether I'll plead guilty. But that's another matter.

I also want to the clerk of the court to be able to speak my language, because he holds certain things. For example, he can compile evidence that will be used in a subsequent appeal, if necessary. That's what I mean by access to justice.

The judge is an extremely important instrument, but I have all this way to go before appearing before him.

Mr. Fraser, are we currently going all that way? Then I'm going to ask Ms. Duchesne, Ms. Aucoin and everyone to answer the question.

[Graham Fraser]

Correct me if I'm wrong, but I get the impression that Bill C-13 was developed precisely to make it possible to do what you just mentioned. I've already appeared before the House Justice Committee and that of the Senate to express my support for that bill because it is an attempt to correct the deficiencies you've identified.

[Marc Tremblay]

I note some confusion in all the remarks expressed before the committee this morning. I believe it's important to clarify matters. When it comes to federal jurisdiction, the Official Languages Act and the Criminal Code, you, as parliamentarians, and we, as the government, have a certain control and can pass laws, policies and so on. In those conditions, the Criminal Code provisions referred to and Part III of the Official Languages Act make it so that, apart from the minor exemption for the Supreme Court previously discussed, not only is everyone free to use English or French before the courts, but under correlative obligations, the judge and Crown counsel must actively use the language chosen by the other party. That's already the case in the sphere that we control and over which we have an influence.

However, the other spheres are areas of provincial jurisdiction. In a case concerning access to justice in Manitoba, the Constitution does not guarantee the right to be understood directly. No provincial legislation confers that right. Provincial law is a provincial jurisdiction. I think that issue is important. If you ask me in what language the introductory pleadings will be drafted in a civil case in Manitoba, I can only answer you that that isn't our responsibility.

There are rules at the federal level. Mr. Fraser referred to those of the Criminal Code which are in the process of being developed and which are designed to provide for translation of the information. At the federal level, the Attorney General has an obligation to use the language of the other party from the moment it is known. These matters must be clarified, or else our discussions will head in the wrong direction in a number of respects.

[Michel Doucet]

With your permission, I'm going to issue a minor warning.

I agree with Mr. Tremblay when he says that civil procedure is a provincial jurisdiction and that criminal procedure is a federal jurisdiction. Judicial appointments are a federal jurisdiction. For example, the appointment of Supreme Court justices is the responsibility of the federal government.

Where there are not enough bilingual judges, I won't exercise my right to request a trial in French because my client will want to have access to justice as soon as possible. If it appears that we'll have to wait a few months, we'll opt for the other language. Whatever the case may be, the appointment of superior court judges is a federal responsibility.

[Daniel Petit, Conservative, Charlesbourg—Haute-Saint-Charles, QC]

My last question is for Ms. Duchesne.

I also sit on the Standing Committee on Justice, and I would like to know what the Access to Justice in Both Official Languages Support Fund consists of. What is its purpose? We're talking about something that might be useful to us today.

[Andrée Duchesne, Senior Counsel and Manager, Francophonie, Justice in Official Languages and Legal Dualism, Department of Justice]

The Access to Justice in Both Official Languages Support Fund is a federal program administered by the Department of Justice Canada. One of its objectives is to help improve access to justice in both official languages across the country. As regards the subject of particular concern to us this morning, I would say that we are working on this matter in close cooperation with the provinces and territories in the context of a federal-provincial/territorial working group. We've supported initiatives advanced by a number of provinces. The purpose is to help them ensure that judicial personnel, the clerks and staff providing front-line service, are assisted and encouraged, at their request, to train people in the other official language.

For example, a particularly interesting initiative concerning provincial prosecutors is designed to improve the ability of those individuals to provide services in the other official language. In all these cases, the individuals must first be bilingual in order to undergo this development training. We hope to step up our efforts with our provincial colleagues in this area. At the request of provincial courts, we have supported the training of provincial court judges in certain provinces. That was the case in Quebec, that was recently the case in Alberta, and it's currently the case in New Brunswick.

[The Chair, Conservative, Steven Blaney]

Thank you for that clarification, Ms. Duchesne.

We'll now begin our second round with Mr. Rodriguez.

[Pablo Rodriguez, Liberal, Honoré-Mercier, QC]

Thank you, Mr. Chairman.

Welcome, everyone.

Mr. Doucet, you said at the outset that the judicial system had to reflect our values and who we are. Briefly put, our judicial system does not reflect who we are: Canada, an officially bilingual country. There is still a lot of work to be done in that regard.

What strikes me is the present situation with regard to the Supreme Court, which is the supreme body, the court of last resort, and for which there is an exemption. May I know where it is stated?

[Graham Fraser]

It's in the 1988 version of the Official Languages Act, section 16, which reads as follows:

16.(1) Every federal court, other than the Supreme Court of Canada, has the duty to ensure that (a) if English is the language chosen by the parties for proceedings conducted before it in any particular case, every judge or other officer who hears those proceedings is able to understand English without the assistance of an interpreter; (b) if French is the language chosen by the parties for proceedings conducted before it...

So it's up to the courts, except for the Supreme Court, in accordance with the version of the act amended in 1988.

[Pablo Rodriguez, Liberal, Honoré-Mercier, QC]

So it's an act of Parliament that can be amended by Parliament.

Would that be your recommendation, Mr. Fraser?

[Graham Fraser]

I've always thought that it was very important to appoint bilingual judges to the Supreme Court. Amending the act is one way of doing it, but there is another, simpler way of proceeding. And that's to ensure that that happens in the appointment process.

[Pablo Rodriguez, Liberal, Honoré-Mercier, QC]

Indeed. However, we can't guarantee the government's wishes and will. To force the government to act accordingly, we should therefore amend the Official Languages Act. I assume that's the wish of virtually everyone here. Obviously, you're staying neutral on the question, but that at least is the wish of those working in this field.

What is the current situation of judges? Did I correctly understand that eight are bilingual and that only one, the last to be appointed, is unilingual?

[Graham Fraser]

That's correct.

[Pablo Rodriguez, Liberal, Honoré-Mercier, QC]

That creates an odd dynamic, for example, in unofficial discussions outside a room where a translation service is offered. I assume everyone must necessarily speak English.

[Graham Fraser]

I think that dynamic is inevitable in discussions on a case that has been pleaded partially in French, on a case concerning elements of the Civil Code or on language cases. Either the ninth judge won't be in on the discussions among the bilingual judges, or the francophones judges will conduct the conversation in English.

[Pablo Rodriguez, Liberal, Honoré-Mercier, QC]

So we can say that it's legal, in accordance with the act, but in a way unacceptable, in accordance with the values of bilingualism that we're trying to defend.

[Graham Fraser]

Let's say that—

[Pablo Rodriguez, Liberal, Honoré-Mercier, QC]

Can Mr. Doucet answer the question? We're going to let him speak a little.

[Michel Doucet]

I've always found it somewhat odd that these obligations are imposed on all the federal courts and that this exception is made for the Supreme Court of Canada, the highest court in the land.

That's why I too am in favour of an amendment to this provision to ensure the appointment of bilingual judges to the Supreme Court.

[Pablo Rodriguez, Liberal, Honoré-Mercier, QC]

I'm really interested in this subject.

In my opinion, there are two occasions where an individual in a vulnerable position really requires services in his language. First of all, this is the case in the health field. When you're sick, you are vulnerable and need to be reassured. So you need to be able to communicate with your doctor in your language. It's also the case in the area of justice. For example, if a problem arises, you may be intimidated or nervous. You are in a field that you don't know and you want to be able to speak your language, but it seems complicated.

Mr. Doucet, you mentioned a recent case in which you had to plead in English. Does that happen often?

[Michel Doucet]

I wasn't talking about a recent case. I cited an example that occurred at the start of my career. I would like to say that the beginnings of my career are quite recent, but that goes back a number of years now.

So it was a case that occurred at the start of my legal career. We had started a trial in French, but in the middle of the first hearing day, the judge himself admitted that he understood, but perhaps not enough.

[Pablo Rodriguez, Liberal, Honoré-Mercier, QC]

Does it often occur that you have to plead in English?

[Michel Doucet]

It happens often when I have to plead language cases in other provinces. We have to plead them in English, even though the witnesses are francophone.

That can happen in New Brunswick. I personally try to do it as little as possible because I represent francophone litigants.