Bill C-232 (Historical)

An Act to amend the Supreme Court Act (understanding the official languages)

This enactment amends the Supreme Court Act and introduces a new requirement for judges appointed to the Supreme Court to understand English and French without the assistance of an interpreter.

[Rob Moore, Conservative, Fundy Royal, NB]

We are already scheduled to do clause-by-clause, I think, on Bill C-232.

[The Chair, Conservative, Ed Fast]

There are two other items. We're moving on to a review of Bill C-52. It's tentatively scheduled for November 16, which is the first meeting after the break. I want to make sure everybody knows we need a list of witnesses on Bill C-52. You have your formal notice. Please submit to us the list of witnesses you'd like to hear on Bill C-52, which is the white collar crime legislation.

Since we'll be moving to clause-by-clause on Bill C-36 some time in the very near future, depending on the outcome of the motion, we'd like to have your amendments as soon as possible.

It's the same thing for Bill C-232. We want to move toward clause-by-clause on that as well, so if you have amendments to that bill please get them to the clerk as soon as possible.

[The Chair, Conservative, Ed Fast]

Yes.

I also have a legal background and I'm also trying to learn French here as a member of Parliament.

I'm thinking of the experience in British Columbia, if I'm someone born and raised in British Columbia and I make law my career, with my goal being to invest in my province. Yet somewhere along the line, someone tells me about the only way I could ever aspire to the highest court in the land. They tell me that not only am I going to have to get my schooling outside British Columbia, but I'm also going to have to immerse myself in a legal setting outside British Columbia, because we don't have a French environment in British Columbia. So inordinate periods of time will be spent outside my province, the one that I'm committed to serving.

As you know, the reason we have judges from across Canada is to reflect the regions, yet I won't be able to reflect my region on the highest court in the land because I'm going to have to spend so much time outside my province to get to that language capacity I require, which is an incredibly high one, based on my reading of Bill C-232. You can see the struggle I have.

It's not a matter of supporting bilingualism or not. The level of language capacity required under this bill is incredibly high because it involves technical legal matters. Especially in British Columbia and Alberta, the pool from which Supreme Court judges could be selected is very small. We have bilingual lawyers in British Columbia, but at the level that's required under this bill, it's a very, very small pool.

[Marie-Claude Bélanger-Richard, Vice-President, Law Society of New Brunswick]

Thank you very much, Mr. Chair.

I'm quite pleased, on behalf of the Law Society of New Brunswick, to have accepted the invitation to appear before this committee. I'd like to commend the chairman on his new term within the committee.

I am the Vice-President of the Law Society of New Brunswick. I've been a lawyer for 23 years and in private practice for 17 years, having articled for approximately 4 years in the administration of justice, more specifically at the New Brunswick Court of Queen's Bench. As you know, New Brunswick is a bilingual province which unequivocally recognizes the legal status of French and English within the justice system. In our province litigants have the right to proceed in the language of their choice, which is very important, to be understood by the trial judge or by a panel of judges hearing the case in the language of the litigant's choice.

We have prepared a brief document to outline the position of New Brunswick. On the first page you'll find a section entitled "Insight from New Brunswick". It includes sections of the New Brunswick Official Languages Act. I would like to point out that under section 18 of the act, no person shall be placed at a disadvantage by reason of the choice he or she has made as to the language used in proceedings. In New Brunswick, that is a very important aspect of the Official Languages Act.

The Law Society of New Brunswick supports Bill C-232. As mentioned by a number of individuals and representatives who have already appeared before your committee, in light of the evolution of this country and of linguistic rights since the advent of the Canadian Charter of Rights and Freedoms, oral and written understanding of legal proceedings through translation or interpretation before the highest court in the land is a legislative anomaly. Even with the best intentions, for the individual trying to understand and for the interpreter, interpretation or translation do not necessarily reflect the essence of a text, the nature of an expression or of a word, the tone or the force of an argument. Moreover, because our laws are bilingual, it goes without saying that an understanding of French and English can open the door to a determination based on subtleties of language or syntax. Thereby the necessity of understanding French and English, in order to arrive at a wise determination of the interpretation of our laws.

Bill C-232 is quite laudable. As I mentioned, the Law Society of New Brunswick supports it. However, there is one concern. Despite the relevance of the problem and its timeliness, Bill C-232 does not immediately rectify the situation. As mentioned by Yvon Godin, member of Parliament, the proposed provision would only apply to any new appointment of justices on the Supreme Court of Canada. Until such time as there are only bilingual judges sitting on the Supreme Court of Canada, the problem of being understood in the language of one's choice by the highest court in the land persists.

What the Law Society of New Brunswick proposes may seem like an interim measure, but in fact, we view this recommendation as a long-term solution to the problem all those who support this bill have attempted to address. Litigants, lawyers and judges all want a fair solution that addresses the needs of litigants. The Law Society of New Brunswick's recommendation is therefore to require that all Supreme Court justices presiding understand the official language of proceedings or both official languages if both are used in proceedings.

Under the Supreme Court Act the quorum for hearings before the Supreme Court of Canada is of five judges. By immediately enacting what we are suggesting as a legislative change, during hearings the understanding of one of the two official languages used in the proceeding would be required. This requirement would not in any way negatively affect the operations of the Supreme Court of Canada and would immediately serve to address the problem. Indeed, it would mean that litigants could immediately be heard and understood by the Supreme Court of Canada.

On page 3 of our brief you will find the proposed amendment. Rather than amending section 5 of the Supreme Court of Canada Act, there would be an amendment to section 28, regarding the inability for judges to sit in some cases, by adding two paragraphs specifying that in order to hear a proceeding, all judges on the Supreme Court of Canada must understand the language of the proceeding.

I am prepared to entertain your questions.

I thank you for your attention.

[The Chair, Conservative, Ed Fast]

Thank you, Madam Clerk, and thank you, committee, for your confidence.

We're in meeting number 35 of the Standing Committee on Justice and Human Rights. Today is Wednesday, September 30, 2009.

As you have seen, the agenda for today contains only one item, which is the election of the chair and the vice-chairs. In order for us to continue and hear a witness on Bill C-232, we need to have the unanimous consent of the committee. Do I have that unanimous consent? All right. For the record, we have unanimous consent to proceed.

We are proceeding with Bill C-232, An Act to amend the Supreme Court Act (understanding the official languages). It's my pleasure to welcome here to our committee the representative from the Law Society of New Brunswick, Marie-Claude Bélanger-Richard. Welcome here.

I think you've been told that you have 10 minutes to present. Then we're going to open up the floor to questions from our members. Please go ahead.

[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.

[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.

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

In order to understand the subtleties of the law and apply them in full, one must at least understand both official languages.

Thus, it is now clear that language proficiency is essential in order to serve as a judge. We must therefore see to it.

My bill will do nothing to eliminate competent candidates: the contrary is true, since in order to be competent, candidates must be familiar with the law as it stands. If statutes are written without translation, why should we allow a unilingual judge to use a translation in order to understand the law written in a language he or she does not understand?

Who would tolerate having a judge at the highest level whose unilingualism means that he or she is familiar with only half the law and is thus partial?

Judges must be able without the help of an interpreter to understand correctly the parties in the case before them, in order to make decisions that are as impartial and objective as possible. Otherwise, the parties run the risk of suffering significant harm. No one wants their future decided by an ill-informed judge.

It is therefore crucial for Supreme Court judges to understand the law as it stands in its duality in order to protect our rights.

Simultaneous interpretation or translation is not enough: they leave room for interpretation which often tends to stray from the initial meaning.

Moreover, interpretation will not necessarily make it possible to understand all of the content of discussions that took place before the case came before the Supreme Court.

As the Commissioner of Official Languages has so rightly pointed out:

...it seems to me that knowledge of both official languages should be one of the qualifications sought for judges of Canada's highest court. Setting such a standard would prove to all Canadians that the Government of Canada is committed to linguistic duality.

I find it essential 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.

In another connection, under the Official Languages Act, every federal court is required to ensure that the language chosen by the parties in its proceedings is understood by the judge or other officer who hears those proceedings without the assistance of an interpreter. There is one exception: the Supreme Court.

It is not fair that the act applies to such bodies as the Federal Court, the Federal Court of Appeal and the Tax Court of Canada, but not to the Supreme Court.

Why should the Supreme Court be an exception? The law should be the same for everyone. On February 5, 2009, in the CALDECH case, the Supreme Court made a decision stating, among other things, that the federal government has a constitutional obligation to provide the public with services of equal quality in both official languages.

The Commissioner of Official Languages has said it is an important principle that clarifies the scope of the Official Languages Act.

According to this judgment, equality is not to be interpreted narrowly: the government, rather, should consider the nature of the service in question and its purpose when defining its linguistic obligations.

In light of this judgment, Bill C-232 acquires its full meaning and becomes all the more relevant and legitimate.

In Canada, French enjoys equality of status and use with English. No party, therefore, whether francophone or anglophone, should be heard through interpretation or any other means before the highest court in the land.

Let us acknowledge, once and for all, the importance of being understood without the help of interpretation or other means.

The current process for appointing federal judges, including Supreme Court justices, fails to give sufficient consideration to language rights.

The lack of any mechanism for assessing the language proficiency of candidates demonstrates the scant importance attached to this fact when judges are appointed. The right to use a language before a court also includes the right to be understood directly in that language. What is the purpose of the right to express oneself in one's own language, if those addressed do not understand it?

It is important for every party to be heard under conditions that do not place it at a disadvantage in relation to any other party.

In order for Supreme Court decisions to be made in full knowledge of all the facts, and for all Canadians to be entitled to a fair trial, join me in an historic act and show your support for Bill C-232. Let us all work to support this cause.

Without disrupting the existing system, my bill will make it possible in the long term to avoid appointments that are against the spirit of the act and the charter. We shall thus be able to do more to ensure respect for the right to equal status, and the vitality of linguistic communities.

How many seconds do I have left?

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

Thank you, Mr. Chair.

Ladies and gentlemen,

members of the Standing Committee on Justice, bonjour.

If I am here today, it is because the legislation contains a loophole that threatens individual rights in our country. I believe that we have the responsibility as parliamentarians to fix it.

I would like to welcome the witnesses who are here today.

Dear colleagues, you may one day have to appear before the Supreme Court of Canada, or experience the consequences of a decision made by that level if you have not already done so.

Imagine what it means to be a victim of an injustice because you have not been properly understood. Imagine that a judge who is deciding on your fate is unable to get clarifications in a timely manner because the translation or the interpretation has prevented this from happening.

Imagine what happens when judges discuss your future between themselves outside the room, where translation and interpretation services aren't available. Imagine the consequences.

This year is the 40th anniversary of the Official Languages Act and I want, along with you, to protect a fundamental right of all Canadians: the right to a just and fair trial.

In pursuit of that goal, I propose to you Bill C-232, the purpose of which is to ensure that future judges appointed to the Supreme Court understand English and French without the help of an interpreter. The measure will not apply to the present incumbents.

I want to explain to you the reasons for this bill.

First, Canadian laws are not written in one language and then translated: they are written simultaneously in both official languages. No one version takes precedence over the other. In short, this means that the English act and the French act together constitute Canadian legislation, and they cannot be separated.

The Official Languages Act and the Canadian Charter of Rights and Freedoms are designed to preserve the historic achievement. Consequently, in order to understand the subtleties.... I hope I say it right.

[The Chair, Conservative, Ed Fast]

We'll reconvene the meeting.

We're pleased to welcome a number of witnesses to assist us with our review of Bill C-232. First of all, I want to welcome our colleague, Monsieur Yvon Godin. Also, we have with us the Fédération des associations de juristes d'expression française de common law inc., represented by Louise Aucoin, who is the president, as well as by Rénald Rémillard, who is the executive director. Then we have two individuals appearing: Michel Doucet, who is a lawyer and full professor at the faculty of law at the University of Moncton, as well as Christian Michaud, a constitutional language rights lawyer with Cox & Palmer.

Welcome to all of you.

Each of you will have five minutes to present, except for Monsieur Godin. Because it's his bill, we're going to give him 10 minutes. Then we'll open the floor up for questions.

Monsieur Godin, would you like to start?

[The Chair, Conservative, Ed Fast]

I call the meeting to order.

This is the thirty-first meeting of the Standing Committee on Justice and Human Rights. Today is Monday, June 15, 2009.

You have before you the agenda for today. In the first hour, we'll hear one witness on our study on declaring certain groups criminal organizations. During the second hour, we'll begin our review of Bill C-232, An Act to amend the Supreme Court Act (understanding the official languages).

I'm hoping that at the end of our meeting we will leave 10 minutes for a brief in camera discussion on our study plan, because there is an issue that has come up about perhaps bringing in a witness early for next meeting. I'd like to leave 10 minutes for that.

First of all, I'm pleased to welcome Paul Burstein, a lawyer with the firm of Burstein, Unger--from Winnipeg, I believe--who will be assisting us with our study on declaring certain groups criminal organizations.

You're actually from Toronto. That's where your firm is based.

The House resumed from May 26 consideration of the motion that Bill C-232, An Act to amend the Supreme Court Act (understanding the official languages), be read the second time and referred to a committee.

Supreme Court Act

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

Mr. Speaker, first I would like to thank the House which, through the democratic process, has debated Bill C-232. This legislation is important for all Canadians using either official languages. My arguments can be summarized with the following question: do we accept the fact that our country has two official languages?

I also want to thank the members for Moncton—Riverview—Dieppe, Hochelaga, Outremont, Lotbinière—Chutes-de-la-Chaudière, Burnaby—New Westminster and Fundy Royal, for their comments.

I would like to correct something that the member for Fundy Royal said. He said that the member for Acadie—Bathurst had mentioned that interpreters in the House of Commons were less competent than other ones. I never said that, and the member should apologize. That is not what I said. I said that in committees—and this has nothing to do with the quality of our interpreters—when a person speaks rather quickly, like me, sometimes the interpreters cannot keep up with that person. They ask me to slow down. In committee, we often get messages from interpreters telling us that we talk too fast. They ask us to slow down a bit.

Let us imagine that we are at the Supreme Court, the highest court in the land, and that a judge or a lawyer says that he did not understand something. This is the highest court in the land, in a country that claims to be bilingual, that has two official languages and that passes legislation in Parliament that is drafted in English and French. So, I am asking myself a question. When a judge has heard a case and returns to his office, does he take an interpreter with him to translate the French act, or to read the English legislation? Where is the justice here?

Four or five years ago, the current Prime Minister of Canada did not speak French as well as he does now. He has learned French, and I congratulate him for doing so. He knows that if he wants to serve our country, he must speak both languages. I will make no bones about the fact that, seven years ago, the NDP leader also did not speak French as well as he does now. He made an effort. However, the judges on the Supreme Court of Canada do not have to make that effort. They hear cases, but the citizens involved cannot go to the United Nations to appeal the decision. The Supreme Court of Canada is the last resort.

There will be a vote tomorrow evening. I am calling upon Parliament to support Bill C-232, which states clearly that the judge must be capable of reading and understanding the law in both of this country's official languages. Voting in favour of this bill at second reading means it will go to committee and there it will be studied and we will hear from experts. The Canadian Bar Association, the Association des juristes d'expression française du Canada, the Young Bar Association of Montreal, the Fédération des communautés francophones et acadienne du Canada, the Quebec Community Groups Network, and even the Premier of Quebec support the bill. They can see that it is a good bill. Why not study it in committee?

The Conservators choose not to. They do not even want it to go to committee. This is regrettable, coming from a government that claims to respect our two official languages. Even the Commissioner of Official Languages says it is essential to send a message. Even university spokespersons from Toronto say it would be a good thing. In four or five years, someone aspiring to a position on the Supreme Court will learn both official languages.

That would show respect for the two communities in our country.

I sincerely call upon the House of Commons for its support. This bill can be studied and then we will decide whether it will become law in this country, but let us give it a chance.

[Peter Julian, NDP, Burnaby—New Westminster, BC]

Mr. Speaker, enough is enough. This bill is quite simple. It deals with the traditions that have existed at the Supreme Court of Canada for a long time. The Conservatives say that they will oppose the bill introduced by my colleague from Acadie—Bathurst, which puts in place something that is already a tradition in this country.

Why? It is quite simple. A Supreme Court justice is not fully competent unless he understands both common law in English and the civil code in French. This is the minimum qualification for becoming a Supreme Court justice. However, the Conservative government refuses to accept the facts. It is precisely because it is incapable of understanding the qualifications required in the Supreme Court of Canada that Bill C-232 was introduced by the member for Acadie—Bathurst.

We have just been told that the Conservative government does not think that British Columbians can speak French. That just goes to show how out of touch the Conservative government is with the people, particularly the people of British Columbia. In the past, the Minister of Finance has even said that his Canada starts at the Atlantic Ocean and ends at the Rocky Mountains. He left out British Columbia entirely. It is clear that the Conservative government does not understand that British Columbia is one of the provinces in which the francophone population is growing in absolute numbers.

When I was a child, there were only two francophone schools. Now there are dozens of them. We have sixty or so in British Columbia because we have francophones from all over. We have a whole rainbow of francophones from Africa, Asia, Europe, Quebec of course, Acadia and western Canada. They all speak French as their first language, and that is changing British Columbia tremendously.

That is not all. More students attend immersion schools in British Columbia than anywhere else in Canada. Our schools are packed. Sometimes parents wait in line all weekend long to register their kids at these schools.

For the Conservative government to suggest that British Columbians cannot speak French is insulting. It is simply not true. It is insulting to the people of British Columbia and to people elsewhere in Canada.

With respect to qualifications, it is clear that people are going to immersion schools and even to management schools. These people understand French well, can speak it, and are studying law. At some point in time, they will meet the minimum requirements for the Supreme Court: they will understand common law in English and the civil code in French.

I certainly do not understand this drive by the Conservatives to lower standards. We have seen it in a whole variety of things, such as air safety, transportation safety, and food safety.

The Conservative government always seems to want to push for lower qualifications. There are two basic qualifications for a Supreme Court judge: the ability to understand the civil code in French and the ability to understand common law in English. Those are simple and important requirements only at the Supreme Court level. The Conservatives do not seem to understand that and that is why we have the bill that is before us today.

The idea that higher standards and stronger qualifications are not taken into consideration is something that I find objectionable. That we need a lower standard of service, that we do not need the qualifications that have served us well in the past seems, in many areas, to be the objective of the Conservative government.

That is why the Conservatives are opposing this simple but important private member's bill put forward by the member for Acadie—Bathurst. The bill would reinforce those qualifications and standards to ensure that every Supreme Court judge understands the civil code in French as well as common law in English. I would be equally opposed if the Conservatives appointed unilingual Francophones who do not understand common law in English because the function of the Supreme Court is too important to do that.

However, that is not what the Conservatives are saying. They seem to be saying they are just going to choose whatever standards they want. We have seen what that has meant in a whole variety of areas. We have seen poor financial management from the government. Those qualifications are unfortunate, but that is the net result. We have seen a whole variety of lower safety standards. We see this drive from the government that does not make sense.

I do not accept lower qualifications and I do not think any member of Parliament should. We should set a higher bar and this legislation would set the bar to what traditionally we all understood, that a Supreme Court justice needs to understand common law in English and the civil code in French. It is very simple. Nothing has to go through translation, nothing has to go through interpretation. Supreme Court judges must be able to function adequately in the two official languages, so that they can pass through the two legal codes that are often written in two different languages.

That is the issue that is before us. We hope that the Liberal Party of Canada will support this bill. We know that the Bloc Québécois said it would support the bill and that the NDP has always been consistent when it comes to the issue of official languages. It is not just the member for Acadie—Bathurst who is fighting a pitched battle to win respect for the official languages in Canada. The entire New Democratic Party has done so since it was formed, and not just at the federal level, but in all the provinces, including mine, British Columbia. It is the NDP that has brought about these changes to respect linguistic duality in Canada.

In British Columbia, a French-language school system was created under an NDP government, as in Saskatchewan. In Manitoba, the official languages bill was introduced and implemented by an NDP government. In Alberta, it was Léo Piquette, an NDP MLA, who pushed for respect for the official languages. In the Yukon, it was an NDP government that introduced the bill to respect French and English. In Ontario, the college system was put in place by an NDP government, and in the Atlantic provinces, NDP MLAs were among those who pushed hardest for language rights.

We are not two-faced. When a New Democrat talks about official languages in British Columbia, Manitoba or the Atlantic provinces, he or she pushes for mutual respect and linguistic duality. We do not act like certain other parties that may say they are in favour of the official languages in this House, but who start attacking the official languages as soon as they leave Ottawa.

We have seen this with the Conservative Party, with the Reform Party and, sadly, with the Liberal Party in western Canada. Outside Ottawa, the Liberal Party has always attacked francophones at the provincial level. Unfortunately, the Liberal Party has a sad history of saying one thing in Manitoba, British Columbia or Saskatchewan, but another thing in Ottawa.

We are consistent. We are the only party in the history of the country that has always been consistent on the issue of official languages. That is why we fully support this bill. That is also why we support the principle that a judge should have the qualifications to become a Supreme Court justice. In other words, judges must be able to understand common law in English and the civil code in French. That is why we will vote for this bill.

[Jacques Gourde, Conservative, Parliamentary Secretary to the Minister of Public Works and Government Services and to the Minister of National Revenue]

Mr. Speaker, I am pleased to rise today to speak to Bill C-232, An Act to amend the Supreme Court Act (understanding the official languages). This bill would introduce a new requirement for judges appointed to the Supreme Court to understand English and French without the assistance of an interpreter.

The government firmly supports the promotion of English and French in Canadian society. As Canadians, we are proud of our bilingual institutions and especially the Supreme Court of Canada, which plays a fundamental role in our democratic society as the ultimate protector of the values set out in the Canadian Charter of Rights and Freedoms. The government's commitment to ensuring our courts have sufficient linguistic capability to guarantee access to a court in one or the other of the official languages applies to the Supreme Court of Canada as well.

The Governor in Council, on the recommendation of the Prime Minister, makes the appointments to the Supreme Court. The justices in this court must be of the highest calibre. Accordingly, persons with the best legal knowledge and abilities must be chosen to fill the available positions.

The Supreme Court Act provides for the composition of the court and the number of judges. It provides that at least three justices must come from Quebec. The composition of the Supreme Court of Canada reflects regional representation. The rest of the judges appointed come from Ontario, the Atlantic provinces, the prairies and British Columbia. The practice of ensuring regional representation guarantees that the most highly qualified and deserving candidates in the country are appointed to serve on the Supreme Court.

That does not mean, however, that everyone appointed to the court must be bilingual. In fact, the special nature of the Supreme Court as the highest court in the land and the fact that it has only nine judges from the various regions of Canada prompted Parliament to make an exception to the application of subsection 16(1) of the Official Languages Act in 1988. Bill C-232 proposes to circumvent this exception. This would harm regional representation on the court.

The government's position is that the proposed amendments are not needed to guarantee access to the court in one or the other official language. The Supreme Court, as an institution, makes all its services and communications available in both official languages. Anyone appearing before the court has the choice of using English or French, in the presentation of both legal proceedings and arguments. The decisions of the court are also published in both official languages, and this helps establish ever expanding bilingual jurisprudence for all Canadians to consult.

The court shows on an ongoing basis that it is capable of performing its duties at the highest level in both official languages. There is nothing to indicate that the court has provided less than the highest quality legal services Canadians deserve and expect. I would ask hon. members to bear in mind the risk that the passage of this bill represents, especially since no one has implied that the justice meted out by the court is of anything less than the highest quality.

The proposed changes would make bilingualism a prerequisite for appointment. In view of the complexity and great importance of the cases heard by the court, judges must have more than perfect linguistic skills to understand subtle, complex legal arguments based on a profusion of factual evidence. An obligatory requirement like this would limit the pool of qualified candidates from parts of the country where the percentage of judges able to hear cases in both official languages is not as high as in Quebec or New Brunswick, for example.

The government obviously agrees that linguistic skills are a major factor in the process for selecting judges to sit on superior courts, including the Supreme Court. We will continue to give them ample consideration, as we did in our last appointment to the court, Justice Thomas Cromwell, an eminent jurist who is perfectly bilingual, highly qualified, and very worthy.

That being said, the Supreme Court is at the very apex of our legal system, and in view of the important role it plays, the government feels that the overriding factor in the appointment of judges is and must remain merit based on legal excellence and personal aptitude.

Bilingualism is an important factor in the evaluation of candidates, but only one factor among others, including proficiency in the law, sound judgment, work habits, honesty, integrity, a sense of fairness and a social conscience.

We are very aware of the fact that our courts must have sufficient linguistic capacity to provide equal access to justice in French and English.

We should also distinguish between institutional bilingualism, which is historically part of the government’s responsibility to ensure that Canadian citizens are served in both English and French, and individual bilingualism, as advocated in Bill C-232.

At the present time, the Supreme Court, as an institution, provides services of the highest quality in both official languages.

The effect of Bill C-232 would be that linguistic considerations would overshadow the most important consideration of all, merit, by reducing the pool of otherwise highly qualified candidates from parts of the country where there may be fewer lawyers and judges who are capable of handling cases in both official languages.

It is not necessary to run the risk that the merit principle will be pushed aside out of a concern for bilingualism. The court already fully meets its objective of ensuring that Canadians have a right to be judged in the official language of their choice. All court services and communications are provided in both English and French.

All the current judges on the Supreme Court, with one exception, are perfectly proficient in both official languages and able to try cases in either official language without an interpreter. The judges also have the benefit of ongoing language training.

High quality interpretation and translation services are provided during court hearings and all judges are assisted by one or more bilingual employees.

The current requirements of the Supreme Court Act regarding the composition of the Court and the historical practice of regional representation allow us to fulfill our important commitment to legal pluralism, while ensuring that the people of Canada are served by judges who are very distinguished and extremely proficient.

The current court structure has provided Canadians with a solid, independent legal branch that is the envy of free, democratic countries around the world.

The quality of the current members of the Supreme Court of Canada and their commitment to the job demonstrate how seriously the current government and previous administrations have always taken their responsibility to appoint judges to the highest tribunal in the land.

Bilingualism is one important factor in the process for selecting judges. However, it should not be allowed to outweigh the most important factor of all: a candidate’s merit and legal excellence.

For the reasons just outlined, we recommend that the members oppose Bill C-232.