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

Sponsor

François Choquette  NDP

Introduced as a private member’s bill. (These don’t often become law.)

Status

Defeated, as of Oct. 25, 2017

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Summary

This is from the published bill. The Library of Parliament often publishes better independent summaries.

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

Elsewhere

All sorts of information on this bill is available at LEGISinfo, provided by the Library of Parliament. You can also read the full text of the bill.

Votes

Oct. 25, 2017 Failed 2nd reading of Bill C-203, An Act to amend the Supreme Court Act (understanding the official languages)

Supreme Court ActPrivate Members' Business

October 19th, 2017 / 6 p.m.
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Ville-Marie—Le Sud-Ouest—Île-des-Soeurs Québec

Liberal

Marc Miller LiberalParliamentary Secretary to the Minister of Infrastructure and Communities

Mr. Speaker, I am very pleased to speak to Bill C-203 today. It is an important bill and it seems to me that it reflects a value shared by the members of the House, who believe that it is important that Canadians across the country truly have access to the courts in the official language of their choice, and that includes the Supreme Court of Canada. I congratulate the member for Drummond for bringing forward this issue.

That said, although I applaud the objectives of this bill, I believe that the focus on the Supreme Court of Canada is misplaced and that it would be better to redirect these efforts in order to strengthen the bilingual capacity of Canada's superior and appeal courts.

First of all, the government has already taken real steps to ensure that judges appointed to the Supreme Court of Canada are actually bilingual. Focusing on superior courts across Canada will ensure that this benefits a greater number of Canadians and that there is a larger pool of bilingual judges that could be future candidates for the Supreme Court of Canada.

I am proud of everything our government has done to support official language minority communities. I am especially proud that our government has again demonstrated the strength of its commitment to enhancing the bilingual capacity of Canadian superior court judges at all levels.

On September 25, the Minister of Justice announced the action plan for enhancing the bilingual capacity of the superior courts. During her announcement, the Minister of Justice emphasized that all Canadians are entitled to have fair and equitable access to the justice system, which should be able to respond to their needs in the official language of their choice, and I think we can all agree on that.

The action plan initiatives will enable the government to assess the situation with respect to equal access to the superior courts in both official languages and take concrete action to close any gaps. I would also note that September 25 was Franco-Ontarian Day. I think it was smart to announce the action plan that day.

The seven-point action plan includes strategies for enhanced tools to verify and assess the bilingual capacity of judicial applicants, examine language training for current members of the judiciary, and confirmation of the minister's commitment to collaborative consultations with chief justices with respect to the bilingual capacity needs of their courts. The government is also committed to consulting with provinces and territories on relevant bilingualism initiatives in superior courts.

The action plan builds on our government's commitment to make every effort to develop a superior court judiciary with a sufficient bilingual capacity across the country in all trial and appellate courts. That is part of the government's overall objective of having a judiciary that reflects the face, voice, and reality of the Canadian population.

Of course, increasing the bilingual capacity of the Canadian judiciary will ensure not only greater access to justice in superior courts in both official languages, but also a rich pool of bilingual candidates for Supreme Court of Canada appointments.

The vast majority of Canadians will not bring a case before the Supreme Court, but will more likely have civil or family law cases before superior courts.

Allow me to paint a picture of the strategic measures that the government has already taken to ensure that candidates who are functionally bilingual are appointed to the Supreme Court.

Our government believes that the Supreme Court of Canada should reflect the linguistic duality of this great country. That explains the mandate of the Independent Advisory Board on Supreme Court of Canada Judicial Appointments, whereby the committee is to submit a list of qualified, functionally bilingual candidates to the Prime Minister for consideration.

The government's commitment to appoint functionally bilingual judges only is also part of the statement of merit criteria for evaluating candidates, a list that accessible and easily obtained on the Commissioner for Federal Judicial Affairs website.

During the implementation of the new appointment process, Justice Malcolm Rowe appeared before parliamentarians gathered at the Faculty of Law at the University of Ottawa and clearly demonstrated that he was functionally bilingual.

Furthermore, our government confirmed this commitment on June 13 when it tabled its response to the report of the Standing Committee on Justice and Human Rights on the new process for judicial appointments to the Supreme Court of Canada.

On July 14, 2017, the Prime Minister of Canada launched a second process to select a Supreme Court justice in order to identify the ninth member of the court who will fill the vacancy created by the upcoming retirement of Chief Justice Beverley McLachlin. This advisory board will follow the same appointment process to ensure the appointment of jurists who are of the highest calibre, functionally bilingual, and who reflect the diversity of our great country.

I would now like to elaborate on measures introduced by our government following the changes made in October 2016 to the process for judicial appointments to the superior courts. The objective of these measures was to bolster public confidence by making the process more open, transparent, and accountable in order to foster diversity and gender balance in the judiciary.

Among the reforms was a requirement for greater detail regarding applicants’ self-identified bilingual capacity, the possibility of language assessments, and a new reporting requirement. The action plan announced on September 25 builds on those changes and takes important new steps in the areas of information gathering, training, and collaboration for and among many stakeholders.

The changes made in 2016 are already delivering results. For example, during question period in the House of Commons on September 25, the minister said she was very pleased that the critical reforms to the judicial appointments process had led to increased bilingual capacity, with five out of the eight judges in northeastern Ontario being fluently bilingual.

When the action plan was unveiled, the minister also said she was pleased that it addressed many of the recommendations made by the Commissioner of Official Languages in his 2013 report, entitled “Access to Justice in Both Official Languages: Improving the Bilingual Capacity of the Superior Court Judiciary”. The report was produced in partnership with the commissioner's Ontario and New Brunswick counterparts. I understand this report was highly useful in the development of the action plan.

In closing, our government remains strongly committed to ensuring that Canadians across the country have real access to justice in the official language of their choice. I believe that our approach is the best way to fulfill our shared commitment to making sure our courts reflect the linguistic duality of this country.

Our government has kept its promise to appoint only functionally bilingual justices to the Supreme Court. Now it is time to expand that initiative to our superior courts and courts of appeal.

Supreme Court ActPrivate Members' Business

October 19th, 2017 / 6:10 p.m.
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Conservative

Michael Cooper Conservative St. Albert—Edmonton, AB

Mr. Speaker, it is a privilege to rise to speak to Bill C-203, introduced by the member for Drummond. Bill C-203 would amend the Supreme Court Act to require that judges appointed to the Supreme Court understand both English and French, without the aid of an interpreter.

The Supreme Court as an institution already fully functions in both English and French. All services and communications of the court are provided in English and French. All those who appear before the court are free to use English or French in written or oral submissions. All judgments of the court are issued in English and French. All factums submitted to the court are translated, and during oral proceedings, judges and lawyers at the court have the benefit of simultaneous translation.

Therefore, it begs the question, if the court as an institution already is fully functional in both English and French, what benefit would Bill C-203 serve? Proponents of Bill C-203 seem to make the crux of the argument that judges who rely upon professional translators may somehow miss nuances in oral argument, which in turn would lead to rendering of improper decisions.

The Supreme Court was established in 1875. For 142 years, the Supreme Court has heard and decided upon thousands of cases. During the debate around this bill and identical bills that were introduced in previous Parliaments, not one proponent of the bill could cite a single case that was decided wrongly, definitively on the basis of translation errors. There is not one case. Moreover, in the event that a case was decided wrongly, there is a remedy available. That remedy would be a rehearing of the case.

Therefore, it again begs the question that, if there is no case that has definitively been decided wrongly on the basis of a translation error, and if there is already a remedy available in that very unlikely event, what purpose would Bill C-203 serve? I submit that in the face of those facts and the evidence of what Bill C-203 is, however well intentioned, it is a bill in search of a problem that does not exist.

What Bill C-203 would do, however, if it were passed, is create many problems. First, it would significantly reduce the pool of qualified candidates for appointment to the Supreme Court. The fact is that, outside the provinces of Quebec and New Brunswick, very few Canadians are fluently bilingual.

Indeed, had Bill C-203 been the law, some of Canada's most distinguished jurists would never have been appointed to the Supreme Court, including Chief Justice McLachlin, not to mention former chief justices Duff, Laskin, and Dickson. Justice Moldaver would not be qualified to sit on the Supreme Court, as he presently does. Justice Major from Alberta, who served on the court with distinction for 13 years, would not have been qualified. I could go on.

Supreme Court ActPrivate Members' Business

October 19th, 2017 / 6:20 p.m.
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Conservative

Michael Cooper Conservative St. Albert—Edmonton, AB

Justice Sopinka is another, as the member for Durham correctly points out.

While the purported objective of Bill C-203 is to ensure that nuances of oral argument are not lost in translation, I would submit that the likelihood of nuances being lost are much more likely to occur in the event that Bill C-203 were passed. If translators at the Supreme Court, who are among the best translators in Canada, make mistakes, then what is the likelihood that a judge hearing a highly technical, highly complicated legal argument in his or her second language might also miss nuances of oral argument? Common sense dictates that it is a certainty, and I submit it is a certainty that will occur much more regularly if Bill C-203 is passed.

Then there are serious practical issues. Would a test be administered to determine proficiency in English and French? Who would be the arbiter of that test? What would happen to the current nine members of the Supreme Court? Would they have to take a test? If they did not pass, what would then happen? That is just touching the surface of some of the practical issues that would be faced.

While Bill C-203 is well intentioned, it is a fundamentally flawed bill. I fully agree that being able to understand English and French is a highly valuable skill for a Supreme Court justice to have, and I believe that it should be a consideration that goes into determining whether an applicant should be appointed. However, linguistic characteristics must not trump experience, competence, and excellence in the law, not to mention the many other personal characteristics that are essential for a jurist to serve on the highest court in the land, the Supreme Court of Canada.

As I say, Bill C-203 is well intentioned, but the problem with it is that it searches for a problem that simply does not exist, to the detriment of appointing the most qualified candidates to the Supreme Court of Canada, and it is on that basis that I oppose Bill C-203.

Supreme Court ActPrivate Members' Business

October 19th, 2017 / 6:20 p.m.
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NDP

Guy Caron NDP Rimouski-Neigette—Témiscouata—Les Basques, QC

Mr. Speaker, thank you for the opportunity to speak to Bill C-203, an act to amend the Supreme Court Act, which deals with the understanding of official languages.

I would like to start by congratulating and thanking the member for Drummond for introducing Bill C-203. He has taken up a cause once championed by Yvon Godin, our former colleague from Acadie—Bathurst, who introduced the same legislation in 2008, in 2010 and again in 2014. This just goes to show that principles matter. On those three separate occasions, the NDP voted in favour of the bill, and the Liberal members, too, three times voted in favour of this very same bill we are discussing today.

That said, some of the speeches I have heard coming from the Liberal benches lead me to believe that they may not do so again. I wonder, if the Liberals believed this legislation to be sound on three separate occasions over a 10-year period, why would they cease to think so now that they are in government? It should be noted that this bill is very similar to one that passed in the last Parliament, a bill that was sponsored by Alexandrine Latendresse, then member for Louis-Saint-Laurent, and dealt with the language skills of officers of Parliament. Some of the points argued by my Conservative colleagues remind me of some of the ones I heard back then, when we were debating this same bill that would have required officers of Parliament to be bilingual.

The same applies today. The issue of the bilingualism of Supreme Court judges is a fundamental one. It involves not only sitting judges and those who may one day be called to the bench, but also the right of every Canadian to be served in their language of choice when appearing before our country's highest courts. It is one thing to be able to plead one's case in a given language, another thing entirely to be understood in that language.

To my mind, bilingualism is not an asset but rather a required skill, which is why the words “understanding the official languages” appear in the bill's title. This is about a specific skill among judges that will be called upon to hear cases in English and in French.

I will only read two quotes in my 18 allotted minutes. The first one comes from Serge Rousselle, former law professor at the University of Moncton, currently serving as the member for Tracadie-Sheila and Minister of Education in the Liberal government of New-Brunswick. I have known Mr. Rousselle since my days at the University of Ottawa. I know him very well, and I know how committed he is to advocating on behalf of francophone minorities.

This former law professor and dean of the University of Moncton's faculty of law said the following:

Bilingualism is a required skill for Supreme Court judges. To fully grasp an oral argument in a field where the subtleties of one official language or the other can be critical, the importance of being understood directly by the members of this court, without the assistance of an interpreter, seems obvious.

Moreover, how can one fully grasp a case in French when many documents have not been translated in English and cannot be directly accessed by unilingual anglophone judges?

This is a fundamental question that runs counter to what my colleague for St. Albert—Edmonton mentioned moments ago. From a logistical standpoint, it can be difficult to ensure the availability in both languages of all of the documentation needed to hear a case while sitting on the country's highest court. This is not only about translating documents, but also interpreting oral arguments. As competent as interpreters are, when they are called upon to interpret arguments that sometimes rely on extremely technical language, that can lead to disagreements over the meaning of what was said. I could quote several members of the legal profession who are of the belief that interpretation simply failed to reflect their arguments' level of sophistication.

That is entirely understandable. Interpreters are only human. Though I may consider myself to be bilingual, I do not envy them their work, which is extremely difficult. That said, the fact remains that some cases that end up before our country's highest court, the court of last resort, are inadequately heard by some Supreme Court justices.

Michel Doucet, a most esteemed law professor at the University of Moncton specializing in linguistic rights, said the following not too long ago:

I have had the opportunity to appear before the Supreme Court on at least seven occasions. I've also gone before a number of tribunals. I believe that my specific experience in the courts has enabled me to see to what extent it is important for judges to be able to directly understand the submissions made by the various parties.

In the week after I had argued a case before the Supreme Court, I had an opportunity to hear the English version of my arguments on CPAC, and I understood why I had lost the case five to four. The translation did not allow me to understand my own words. I wonder how justices can fully understand the matter at hand when they have to go through translation in which significant aspects of a submission are missing. When you win 9:0, there is no problem, but when you lose 5 to 4, you automatically wonder whether you should not have argued in English.

These words from a highly respected legal expert should be reason enough for us to want to study, at the very least in committee, the amendments that our colleague from Drummond proposes in Bill C-203.

I am asking government members and even my Conservative opposition colleagues to at least give the Standing Committee on Justice and Human Rights the opportunity to debate this fundamental issue. It is not enough for government members to say that the issue is resolved because we have bilingualism programs for lower court judges that are ultimately supposed to help put more judges in superior courts. Nor is it enough to say that the problem will go away because the current government has a process to appoint bilingual judges. The same argument could have been used in the context of the bill on language skills for officers of Parliament.

If the government is going to appoint bilingual judges, why do we need a bill? Because it is not enough. We need to enshrine this requirement, this recognition in law to make sure it really happens and to make sure the changes stick. I do not know if other Liberal members will be speaking to this bill, but I would urge them to consider some of the facts I mentioned, which I will now recap.

First of all, while in opposition, the Liberal Party supported this same bill three times in the past 10 years: in 2008, 2010, and 2014.

Did their principles change when they were elected? I certainly hope not. It is not enough that this government is wiling to appoint bilingual judges to the Supreme Court; we need to enshrine this principle in the law. Otherwise, there is no guarantee that a future Liberal, Conservative, or NDP government, or any other governing party, will be able to guarantee bilingualism within the Supreme Court, thereby guaranteeing that francophone and anglophone litigants will be understood in the same way and provided an equal playing field.

Equal access to justice in both official languages is a fundamental principle. In this country, our laws are not written in English and then translated into French. Laws introduced by francophone members are not drafted in French and then translated into English. Both versions are equally valid. This principle matters when interpreting legislation. That is why we must enshrine it in law.

Now, we are the first to admit that this bill may not be perfect, as I know the member for Drummond is aware. For instance, there is the issue of whether it may create barriers to the appointment of indigenous judges. On this side of the House, by which I mean me, the member for Drummond and the rest of the NDP, we are open to amendments that would allow us to address this issue. Such amendments could be moved in committee, for example.

The bottom line is that the House should not dismiss the member for Drummond's proposal out of hand, because it touches on a fundamental element on which the Liberals and the NDP have agreed for 10 years.

Let us pass this bill at second reading so we can tweak it in committee with a view to affirming the principles of providing justice in both official languages and of equality between both official languages in this country, and to ensuring that no case in Canada is lost, or suspected of having been lost, because a judge failed to understand the legal arguments presented because of the language in which they were presented.

I urge the House to vote for Bill C-203 so we can have this important discussion in committee and then return the bill to the House.

Supreme Court ActPrivate Members' Business

October 19th, 2017 / 6:30 p.m.
See context

LaSalle—Émard—Verdun Québec

Liberal

David Lametti LiberalParliamentary Secretary to the Minister of Innovation

Mr. Speaker, it is an honour to rise this afternoon to speak to this very important topic and to an institution that is dear to me. You will see why in a moment.

Although I support the intent behind Bill C-203 introduced by the hon. member for Drummond, I sincerely believe that at the end of the day, legislation is neither necessary nor even advisable under the circumstances, even though having bilingual Supreme Court justices is very important and something we should all work toward.

This is the second time I have said as much. I said that the Supreme Court is an institution that is very dear to me. I had the opportunity in my life to be a clerk to a Supreme Court justice from 1989 to 1990. I worked for Justice Peter deCarteret Cory, an Ontario judge who was bilingual.

I would like to correct something that the hon. member for St. Albert—Edmonton said. Justice John Sopinka was perfectly bilingual. That year, he did not have a clerk so I worked with him, too, and even attended in camera meetings with him in French. It is true that he had an accent that at the time was called the “John Diefenbaker accent”, but his French was impeccable.

Having had that experience, I agree with many of the ideas my hon. colleague just put forward. It is very important that all lawyers' arguments, whether oral or written, be understood without the use of translation. Yes, texts are translated, and yes, much like here, the Supreme Court interpretation service is very good.

However, this is about the process of making legal arguments. When a lawyer seeks to impress the merits of his case upon a judge, every word is carefully selected, which makes legal arguments particularly difficult to translate. It is of the utmost importance, then, for judges to be able to understand both written and oral arguments without the use of translation.

I also participated in a case that was before the Supreme Court and I helped draft a submission to the court. I can assure you that every word is carefully weighed, because there are limits. Once again, it is very important to be able to understand the speaker's arguments and style. The hon. member for St. Albert—Edmonton has a certain style when he makes his speeches. He should understand why it is so important to protect the integrity of an argument's style.

Even if the interpretation is good, it is about convincing someone, so it is very important that our goal be to have bilingual Supreme Court judges.

That said, as a former law professor in a bilingual, bijural faculty, the first thing I have to point out is that the law does not always offer the ideal solution to a problem. In our case, I do not believe this kind of law is necessary.

As my colleague from Ville-Marie—Le Sud-Ouest—Île-des-Soeurs just told us, we have already taken steps to change the selection process for Supreme Court judges and the process to select a successor to Chief Justice McLachlin to ensure that bilingualism is a central consideration. We have already done that, and it worked well in the case of Justice Malcolm Rowe, and it should continue to be part of the system itself.

My colleague also described the action plan we introduced for superior courts, which is where people have their first contact with the legal system. Supreme Court Justice Cory always said that he was not the most important person in the system and that superior court judges play the most important role because they are the ones that have contact with the people.

While we may agree on the purpose of the bill, and while I would like us to have nine fluently bilingual, or at least functionally bilingual, Supreme Court justices, that is not advisable. When it comes to the Supreme Court, a careful balance must be struck.

What my colleague from Rimouski-Neigette—Témiscouata—Les Basques just said is also true in some respects. It is not uncommon for the Supreme Court to call on a criminal law expert or a trade law expert to help in its understanding because of both the complexity of the subjects it addresses and the language that is used. When the Supreme Court needs such experts, then it is rather significant. In that respect, a bilingual candidate does not necessarily meet the current needs of the court.

I would like for us to maintain this flexibility that allows us, in some cases, to fill some of the possible gaps left among the nine justices. It is also very important to consider the substance of the cases that are brought before the Supreme Court.

The future can be unpredictable. We have to be prudent. That is what are doing with regard to the measures that are already in place. It would be premature to act before seeing whether people fully adopt these measures.

Law students and lawyers already know that they have to be bilingual if there is any hope of being appointed to the Supreme Court. Perhaps in the future it will not be a problem. It is better to be prudent for now.

Finally, there are constitutional issues. If we tried to change the criteria for selecting Supreme Court justices, it is highly likely that the provinces would say that it is unconstitutional. It is best not to open Pandora's box.

The government already has the rather significant burden of justifying the appointment of non-bilingual judges to the Supreme Court. It shifts the emphasis to the judges who are already bilingual. To justify the choice of a judge who is not bilingual, the government has to have a convincing reason. It is already a weighty standard that has the same effect as what the hon. member for Drummond wants to entrench into law. For these reasons, I believe that such a measure is neither desirable nor necessary in the current context.

Supreme Court ActPrivate Members' Business

October 19th, 2017 / 6:50 p.m.
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NDP

Hélène Laverdière NDP Laurier—Sainte-Marie, QC

Mr. Speaker, I am truly honoured to rise today to speak to Bill C-203, An Act to amend the Supreme Court Act regarding the understanding of the official languages.

Fair and equitable access to justice is one of the basic tenets of democracy. That is what this bill seeks to ensure, by requiring Supreme Court justices to be able to understand arguments in both of our official languages and enshrining that requirement in law.

Supreme Court justices play a major role in our democracy. They need to meet numerous qualification criteria. One of those criteria is, in my opinion, the ability to understand Canadian citizens in both official languages, which, I will point out, have equality of status under our Constitution.

The NDP is not alone in thinking that. I would like to quote some people who know much more about this topic than me. For example, Serge Rousselle, a renowned Université de Moncton law professor, said:

Bilingualism is a required skill for Supreme Court judges. To fully grasp an oral argument in a field where the subtleties of one official language or the other can be critical, the importance of being understood directly by the members of this court, without the assistance of an interpreter, seems obvious.

This is not a theoretical question.

Michel Doucet, another Université de Moncton law professor and a language rights expert, has argued many cases before the Supreme Court. He said:

In the week after I had argued a case before the Supreme Court, I had an opportunity to hear the English version of my arguments on CPAC, and I understood why I had lost the case five to four. The translation did not allow me to understand my own words. I wonder how justices can fully understand the matter at hand when they have to go through translation in which significant aspects of a submission are missing. When you win 9:0, there is no problem, but when you lose 5 to 4, you automatically wonder whether you should not have argued in English.

That is why bilingualism is essential to ensure equal access to justice, and why judges of the Supreme Court, the highest court, must be able to serve all Canadians in either official language. Once again, we are not the only ones saying so.

In his report on access to justice, Graham Fraser, former commissioner of official languages, said that since the Supreme Court is the highest court in the country, it is crucial that its judges be able to understand all the information and arguments presented, in both official languages without the help of an interpreter, including the nuances that can affect the outcome of a trial.

Mr. Fraser also strongly supported Bill C-232, which had exactly the same objectives and which the Liberals supported at the time.

I am running out of time and I see that I am going to have to cut my presentation short. I would like to point out that the Barreau du Québec and the Fédération des communautés francophones et acadienne du Canada support this bill, which is very important.

Our Liberal colleagues are telling us that they promised to appoint bilingual judges. There is a small problem. Our Liberal colleagues always seem to think that they will be in power forever. That is the first problem. At some point, another government could decide to do things differently.

There is one more problem. The member for LaSalle—Émard—Verdun said that yes, we are going to appoint bilingual judges, but that we also need some flexibility to not do it. This too seems like a very Liberal thing to say. They make a promise, but they may or may not keep it.

I think this is one more reason to recognize that this is a fundamental issue of access to justice and that this needs to be put in law. This bill could certainly be amended, but I urge all of my colleagues to vote for it so it can go to committee.

Supreme Court ActPrivate Members' Business

March 8th, 2017 / 7 p.m.
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NDP

François Choquette NDP Drummond, QC

moved that Bill C-203, An Act to amend the Supreme Court Act (understanding the official languages), be read the second time and referred to a committee.

Mr. Speaker, it is truly an honour for me to rise today to introduce and speak to Bill C-203, an act to amend the Supreme Court Act, understanding the official languages. I am very proud to do that today, and I will explain why in a moment. I am following in the footsteps of many others who came before me and fought for Supreme Court judges to be bilingual. I will talk about who the biggest champion of this cause has been. It is quite the challenge for me to continue this fight, but it is also an honour and a privilege to do so.

I am speaking today about my bill, Bill C-203, which has to do with the bilingualism of Supreme Court judges. In short, this bill amends the Supreme Court Act and introduces a new requirement for judges appointed to the Supreme Court to understand French and English without the assistance of an interpreter. I will explain why this is so important.

This legislation would provide everyone with better access to justice in the official language of their choice. I will come back to that to explain other aspects of this bill.

First, I will say that access to justice in both official languages is an important concept that affects every official language community across Canada. Ever since I was appointed official languages critic for the NDP, I have had the opportunity to travel all over Canada and meet representatives of official language communities. They tell me how important it is to have access to justice. Access to health care in one's language is also very important. Nonetheless, access to justice is one of the most important issues.

This issue has long been championed by the NDP. In fact, I followed with interest the work of an NDP legend. Of course I am talking about the former NDP member for Acadie—Bathurst, Yvon Godin.

Supreme Court ActPrivate Members' Business

March 8th, 2017 / 7:20 p.m.
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Eglinton—Lawrence Ontario

Liberal

Marco Mendicino LiberalParliamentary Secretary to the Minister of Justice and Attorney General of Canada

Madam Speaker, I am pleased to rise today to speak to Bill C-203, an act to amend the Supreme Court Act (understanding the official languages).

The purpose of this bill is to ensure that Supreme Court justices are able to understand both of Canada’s official languages, French and English, without the assistance of an interpreter. The bill proposes to amend the Supreme Court Act to make the capacity to understand both official languages an additional statutory requirement for eligibility for appointment to the court.

We believe in the purpose behind Bill C-203. The esteemed judges who serve on Canada’s Supreme Court, a national judicial institution and the highest appellate court in the land, should be functionally bilingual, so that litigants appearing before the court are able to use the official language of their choice. It is how best to achieve that laudable purpose which we are debating today.

Our government made it clear that we would only appoint Supreme Court justices who are functionally bilingual. The Liberal Party electoral platform of 2015 regarding Supreme Court appointments reads as follows, “We will ensure that all those appointed to the Supreme Court are functionally bilingual.”

This commitment is also clearly set out in the mandate letter of the Minister of Justice and Attorney General of Canada. In that letter, the Prime Minister indicated that it was imperative that the process of appointing Supreme Court Justices be transparent, inclusive and accountable to Canadians, and that those appointed to the Supreme Court be functionally bilingual.

What is more, our government publicly reaffirmed this position many times. I would like to emphasize that our commitment to that goal is not simply a matter of words. Our government has taken positive and concrete steps towards achieving that end. Following the Prime Minister's announcement in August 2016, this government established the independent advisory board for Supreme Court of Canada judicial appointments.

The Prime Minister gave that advisory board the mandate to make a list of three to five functionally bilingual candidates and asked it to submit the list for review in order to fill the vacancy left when Justice Cromwell retired.

Furthermore, enacting expeditiously upon the shortlist of potential candidates drawn up by the board, and in consultation with the Minister of Justice, the Prime Minister recommended for appointment to the court Justice Malcolm Rowe. Justice Rowe is not only a highly respected jurist, he is also, we are proud to emphasize, the first judge ever to be appointed from the province of Newfoundland and Labrador. As Justice Rowe demonstrated during his appearance before parliamentarians gathered at the law faculty of the University of Ottawa before he was sworn in, he is evidently functionally bilingual, thereby satisfying our government's selection criteria for this most important position.

This government's policy of appointing functionally bilingual judges to the Supreme Court will ensure in the future that eventually all of the nine judges on the court will be able to understand counsel pleading cases before them in the official language chosen by each party without the aid of an interpreter. To the extent that any of the current justices on the court, who were appointed before the new policy was put in place, are not yet functionally bilingual, I believe that all of the judges are personally committed to learning, achieving, and maintaining fluency in both official languages, and they have language training and resources available to assist them in that regard.

It is a constitutional right for everyone to use either English or French in hearings, pleadings, and any other process before federal courts established by Parliament, including the Supreme Court of Canada. The court makes every effort, as a federal judicial institution, to facilitate and encourage litigants and counsel to use either official language. Our government’s policy will enhance that institutional effort and responsibility by ensuring that, over time, all of the judges of the Court are functionally bilingual.

Indeed, the government intends to consider the place of functional bilingualism in the judicial appointments process more broadly in response to the recommendations of the Commissioner of Official Languages for federally appointed superior court judges. This is something the government will undertake in consultation with the provinces and territories as well as the provincial and territorial bar associations and the courts themselves.

In other words, the composition of the Supreme Court, including the eligibility requirements for appointment, may very well be constitutionally entrenched and thus beyond the reach of legislative measures enacted by Parliament acting alone.

Under the circumstances, to proceed with Bill C-203 at this time, in light of the evident constitutional concerns its enactment would raise, would be, in the government’s respectful view, unwise and ill-advised. If enacted, Bill C-203 would provoke needless controversy and very probably, protracted litigation.

It might also undermine the efforts this government has made, in consultation with this House and its committees, to advance the policy of functional bilingualism to which this government is committed.

I urge all members to support the government’s strategic approach and to take note of its commitment to applying this policy to future appointments. The government's approach will ensure the appointment of functionally bilingual candidates to the Supreme Court.

Supreme Court ActPrivate Members' Business

March 8th, 2017 / 7:25 p.m.
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Conservative

Garnett Genuis Conservative Sherwood Park—Fort Saskatchewan, AB

Madam Speaker, it is a pleasure for me to rise and address Bill C-203. I understand that the government is going to be opposing the bill, which means it will likely pass, given tonight's precedent. Nonetheless, I will be speaking against the bill. I have a number of concerns about the bill that I would like to discuss, and I will go through them one by one.

First, I do not see the necessity of this legislation. Of course, it is desirable to have Supreme Court judges and public officials who can speak in both official languages, but in places like the House of Commons, the Supreme Court, and elsewhere, we do have access to translation. This ensures that whatever arguments are being made can be heard and responded to and that those who are participating in those discussions can hear as well. We have not heard complaints about things that are happening at the court, given the availability of these kinds of facilities.

It is not clear to me what problem the bill seeks to solve. Again, in this age, with the availability of the technology for that, it is not necessary to impose this additional requirement. However, as I will discuss, I think there are some definite downsides associated with the imposition of those requirements.

Right out of the gate, I do not see the argument for the necessity of the bill, in part because of the availability of translation and also because there is certainly an availability of training and intensive training. I think it would be important and valuable for those who are appointed to the court, as well as members of Parliament, to take the opportunities that are available to improve our proficiency in the language that we may not have grown up with. Many of my colleagues take advantage of the opportunities to learn French while we are here. There are many members of Parliament who may come here not knowing another language at all but after a few years are very proficient in it.

I speak a little French and I believe that I have improved my French in the year that I have been an MP. Obviously, it is not perfect, but it is good to have an opportunity to speak French in this place. It is the same for the court. There are opportunities for judges to practice and improve their language skills by putting them to use.

Given those opportunities and given the availability of translation, I do not see the necessity to introduce this additional requirement. There are some real practical problems with it.

Of course, it is no secret that the use of language varies widely, depending on where we are. There are some regions of the country which are more bilingual. There are other regions of the country where there may be languages other than French or English that we hear used quite commonly and more commonly than one of Canada's official languages. I come from the province of Alberta. There is a great deal of use of other languages other than English and French, and that is part of our history of having settlement by people from all over the world.

There might be a person who had mastered a number of languages, who had not yet mastered French but was open to learning it, who was an appropriate person to be appointed. This provision would prevent that person from being appointed as a Supreme Court judge.

If there were a vast pool of available people, and we were excluding a few of them on the basis of this requirement, that would be one thing. However, the reality is that from some regions of the country, there would not be a very large pool of people available who would also meet the other kinds of requirements that we would like to see from a Supreme Court judge.

We would really be narrowing that pool and forcing the government to make an appointment. Putting that emphasis on language would make it much more difficult to weigh out a full range of other criteria. Perhaps proficiency in both languages should be part of that criteria, but it should not be a deal breaking criteria that would prevent the appointment of the most eminent legal scholar who was also prepared to undertake the necessary studies after appointment in order to improve his or her knowledge of a different language.

I just do not think that would make sense. What, after all, are we aiming for? We are aiming for an effective justice system, the best possible judges, and certainly that to exist in an environment where discourse can occur in both languages. That can be facilitated through translation. However, this requirement really limits the ability to appoint the person any particular government may view as the best applicant, the most appropriate applicant to put in place.

There is another point I want to make around this as we consider the weighing of different criteria, which is that inadvertently the ability to create a more diverse Supreme Court may be restricted through this legislation. When we are talking about diversity, there is a range of different criteria that might be looked at. If we are looking to have a more ethnically, culturally, and regionally diverse Supreme Court, there might be a very strong applicant who had been an immigrant or who had studied what was for them the language of their parents or grandparents, or had focused their efforts on learning other languages that were perhaps more likely to be used in the region in which they find themselves.

To exclude that kind of a person from a Supreme Court appointment on the basis of this criteria actually limits the diversity of our court. It actually means that we could not have a person who had that kind of experience. That is not to say there are not people who come from the full range of possible countries to this country who do become bilingual, but it is a matter of how this bill effectively narrows the pool. It means choosing from a much smaller group of available applicants, which makes it that much more difficult to look for that kind of diversity that I think a lot of people here would like to see reflected on our court.

Again, this just speaks to different regional realities. In Vancouver, we are probably much more likely to hear Cantonese or Mandarin spoken than to hear French spoken, although of course there are French speakers there. That reality varies depending on where we are in the country. While there may be a great deal of available people who are appropriate to a point and who are bilingual, in some regions of the country, we are looking at a much smaller pool of people where French is less likely to be used.

Certainly, it is important that we encourage the use of both official languages, that we encourage people to learn both official languages, if they are able to. I think my daughter Gianna is watching, and we are already trying to teach her French, even though she is only four, and she is doing a great job, but this is not necessarily reflective of everybody's experience, that everybody has had the opportunity to learn to speak both official languages.

I congratulate the member on bringing this bill forward, but I have to be frank about these concerns that we need to think about as we proceed with this discussion. The reality, again, that we have the availability of translation, that it is certainly possible to have the discourse proceed, as it proceeds in this House, with translation, and as well the availability of training opportunities makes it easier for judges to learn French or English, whatever language they may be less proficient in after their appointment. These opportunities exist. Certainly, members of Parliament take advantage of them, and judges can take advantage of them and I am sure do, as well.

Also, the limiting of the pool of available appointees that comes with this proposal is particularly concerning. It raises significant questions in specific regions of the country where there just may not be that many people available to appoint who have the kinds of qualifications we want to see and also meet the language test that this bill would establish.

Those are some concerns I have. I look forward to following the rest of the debate.

Supreme Court ActPrivate Members' Business

March 8th, 2017 / 7:35 p.m.
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NDP

Murray Rankin NDP Victoria, BC

Madam Speaker, I am so pleased to rise in support of Bill C-203, an act to amend the Supreme Court Act. I salute my colleague from Drummond for his tireless work in this regard, following in the footsteps of, I dare say, the famous Yvon Godin, who was passionate about this in many Parliaments in the past.

I want to talk about what the bill would and would not do. The bill does not even require technically functional bilingualism. All it requires is that a justice understands the other official language without the assistance of an interpreter.

I congratulate the Liberals sincerely for their current policy, which requires functional bilingualism as a condition. When former prime minister Kim Campbell was asked to chair the advisory board that led to the appointment of our first justice from Newfoundland and Labrador, I was pleased to see that process in action. The committee could only consider those who were functionally bilingual, and Mr. Justice Rowe demonstrated that aptitude very clearly.

This issue has long been championed by the New Democratic Party. We introduced similar bills in 2008, 2010, and 2014. This is our fourth time trying to see this legislation pass. Each iteration of the bill has aimed to promote positive measures to protect official languages through legislation.

The government representative today quite properly pointed out, with pride, that the functional bilingualism requirement was merely a matter of policy, and perhaps with unintended arrogance said that was fine so long as the Liberals were in power. Things change even in Canada. Sometimes we have other governments and therefore no longer would this be something we could point to with the pride that the Liberals obviously take in the initiative they passed in the last while. The policy is good, but it does not mean it will necessarily be in force in the future.

It was also pointed out by our colleagues opposite that the decision of the Supreme Court of Canada in the Nadon judgment was somehow an excuse, dare I say a smokescreen, for not proceeding with legislation. I point out that Professor Sébastien Grammond of the University of Ottawa has written persuasively, at least to this lawyer, that if we have requirements, as we do for number of years at the bar before eligibility for appointment, there is no reason why we cannot have requirements for language proficiency for that appointment.

We are talking about six people in Canada. Three of those judges are required by law, for understandable excellent constitutionally relevant reasons, to come from the province of Quebec where there is a civil law system. I can assume that three of those nine will speak both languages or certainly be proficient in the French language. There has never been a justice on the Supreme Court who only spoke French. The six left of the nine are all the people we are talking about.

I taught law at the University of Victoria for over 12 years, the farthest west one can get in our country. I can assure the House that students understand the reality of the country. They understand, since bilingualism and biculturalism a generation ago, that we have a commitment as Canadians to respect each other's official languages. That is why we have an Official Languages Act and a commissioner. It is high time we have our courts at the highest level reflect that reality as well.

I had many students whose first language was Punjabi or Mandarin. Some even spoke indigenous languages. They understand that in this day and age, being one of those six people drawn from predominantly English speaking provinces, that speaking the other official language is not exactly a radical step in 2017.

To their credit, the Liberals understood that with their policy of functional bilingualism. For reasons I cannot fathom, they somehow are afraid to put that commitment into law. That is all this bill would do. I could even argue that the bill does not go as far as the Liberals' current policy. Their current policy requires functional bilingualism, which to me connotes being able to speak and understand the other language. All Bill C-203 would do is require that a judge understand both official languages without the assistance of an interpreter. It seems to me a necessary first step to do this, and the Liberals reluctance is quite frankly disturbing.

It has also been said that somehow this is inconsistent with the rights of indigenous people. We can certainly ensure at committee that there is no such intent or effect in the law. This law would confirm that indigenous rights that are guaranteed under section 35 of the Constitution Act of 1982 remain in full force and effect and are in no way derogated by the legislation that would be enacted should the bill proceed.

I do not believe therefore that there is a practical problem with a bill of this sort. My colleague from Drummond made reference to a number of organizations that have supported this over the years. I did not hear the Canadian Bar Association protest when the Liberals brought in a functional bilingualism requirement. It is a fait accompli in the 21st century that people would understand this reality of our country.

It is particularly relevant for Canadians who are members of language minority communities that they feel comfortable using the official language of their choice before our highest court of the land. Professor Grammond and Mark Power captured this conundrum in a paper they provided to the Institute of Intergovernmental Relations at Queen's University. They wrote, “Francophone litigants before the Supreme Court face a challenge that is not shared by their Anglophone counterparts: to attempt to persuade judges who do not understand the language in which arguments are presented.”

It is crucial that the Supreme Court serve all Canadians, and that they believe their arguments were truly understood by the justice who heard them. It is not acceptable that they would argue that they lost a particular case on the basis that they were not truly understood. That cannot be right in a country committed to bilingualism and biculturalism, such as ours. That cannot be just. We all feel when we lose a case in the court that it must be because we were not understood. I understand that argument. However, that a number of senior scholars and lawyers would go in print and say they are concerned about this should be of concern to all Canadians.

The time has come for us to essentially go beyond policy and do what has been sought so many times in previous parliaments, by Mr. Godin, and now by the member for Drummond. It is something that the late Jack Layton, leader of the NDP, was passionate about and made many speeches about. It is something that has been the subject of resolutions at conventions in our party, and of course in platform commitments we have made over the years.

It is time for the government to re-evaluate its position, not hide behind a smokescreen of a Supreme Court decision, and decide that it truly is committed to bilingualism at the highest level of our courts so justice can truly be done for all Canadians from coast to coast to coast.

Supreme Court ActPrivate Members' Business

March 8th, 2017 / 7:45 p.m.
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NDP

Robert Aubin NDP Trois-Rivières, QC

Madam Speaker, I humbly admit that having the opportunity to speak to such an important bill is truly an honour.

However, when we do so many times, we have to wonder if there isn't something seriously wrong with this country. I will always remember the first responsibility given me by the late Jack Layton when I was first elected, and that was official languages. I was from Quebec, and I tapped into all the energy and motivation of francophones living in minority communities across Canada to defend their rights. French is relatively well established, although we still worry it may not be secure enough. I then discovered a double standard against which I have always wanted to fight.

I will seize this opportunity to acknowledge the work of my colleague from Drummond, who will continue the fight led by Yvon Godin, the former member for Acadie—Bathurst, for 17 years in the House, if memory serves. The member for Drummond is working to ensure that this bill finally passes.

The NDP has always led this fight. I do not hesitate to call it a fight, because after so many failed attempts to appeal to common sense, we need to make it a real fight so that both official languages of this country get the respect they deserve. The NDP has introduced no fewer than three other bills before this one to include the understanding of both official languages as part of the selection criteria for judges in the Supreme Court Act.

I would like to express my own personal opinion. This proposal falls short of my personal expectations. I believe that, for a position as critical to Canadian democracy and our justice system, no less, much more than simple understanding is required. I believe that the standard should be perfect bilingualism.

Let us say, however, that if every Supreme Court judge could hear arguments with all their subtleties, that would already be a great start; three bills later, however, and still no consensus. In 2008 and 2010, the bills died on the Order Paper when an election was called. Some might say that this was fate, although we know that elections are sometimes called specifically so that certain bills will die on the Order Paper, but I am not here to judge this evening.

In 2014, however, it was the Conservatives who did not see the merits of this bill and who simply rejected it. Let us hope that this time everyone will end up seeing the light.

Bill C-203 is nothing less than a matter of respect because behind the language is the people who speak it, people across Canada who live in a minority situation, except in Quebec, as I was saying. Needless to say, requiring a judge to understand both official languages means requiring knowledge of French.

Could we find a francophone judge who does not understand English? Good luck. The question answers itself.

Just imagine an anglophone having to defend themself before a Supreme Court whose justices are for the most part unilingual francophone. Then people would understand the struggles francophones in this country face when they appear before the Supreme Court.

Some will say that there is simultaneous interpretation. That is true. We have experience with that type of interpretation in the House of Commons and in committee on almost a daily basis. In fact, allow me to take this opportunity to emphasize the quality of the services provided in the House and in the various committees.

However, we can also attest to the limits of this practice when it comes to getting across the subtleties of French or English. Sometimes we complain about a poorly translated book that does not at all reflect the subtleties of the original. We say that the translation was bad and that the book was much better in the original language. A translator translating a book has time on their side. Our interpreters work in real time.

It is not unusual for members of the House to use common expressions in either of the two official languages just to see how the interpreters will render their remarks. It is done in a joking way. It is nothing serious, but it allows us to see the commonalities between expressions in both official languages.

However, when it comes to the highest court in the country, I think that the time for joking is past. Although the things we talk about here are important, there is not the same sense of finality as there is with an appeal to the Supreme Court, which, it is important to remember, is the final court of appeal in Canada.

When the Supreme Court renders a unanimous decision, nine judges to zero, regardless of whether it is in favour of the appellant or not, it is clear that translation was not a problem and that everyone had the same understanding of the events in question.

However, let us now imagine that a decision is rendered with five judges to four. If five judges ruled against the defendant and he felt as though he was not heard and understood in his mother tongue, that is a major problem. French is one of the two official languages, not the second official language. Both official languages are equal.

What is more, Canada's legal system is bijural, which means that each law is written in both official languages, and each version has its own separate context. Laws are not written in one official language and then translated into the other. The French and English versions are drafted side by side, the drafter drawing on the strengths of each language.

Given that the principle of bilingualism was recognized and imposed on officers of the House of Commons, thanks to the hard work of former NDP member Alexandrine Latendresse, it seems to me, and with good reason, that the House lacks conviction and is being inconsistent by not adopting that same principle for judges in the highest court of Canada.

Let us hope that, this time, we will all speak with one voice and recognize that we have been slow to act and that it is high time this problem was solved.

I just want to say that times sure have changed. Gone are the days when we made a point of highlighting bilingualism in our résumés to stand out from the crowd. In Canada, speaking two languages is a basic skill. Most employers agree that, when they are going over résumés to find the best candidate, they know that speaking multiple languages is an asset. Employers ask candidates which languages they speak in addition to English and French. That is an asset. Being bilingual in Canada is a basic skill.

Bilingualism is now a basic tool for everyone. Being multilingual is still special, and there is a growing demand for people who speak several languages. Claims that it might be impossible to find competent bilingual judges in certain provinces and territories do not hold water. The way I see it, that claim never did hold water because bilingualism is an essential qualification for Supreme Court jobs.

How many jobs have I myself dreamed of having one day but given up on because I did not have the necessary skills or the desire to work hard to acquire those skills? Anyone who dreams of capping their law career with a seat on the Supreme Court bench has to realize that this skill is now indispensable in Canada.

In closing, I would like to once again thank the member for Drummond for keeping up the fight.

Supreme Court ActRoutine Proceedings

December 9th, 2015 / 3:10 p.m.
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NDP

François Choquette NDP Drummond, QC

moved for leave to introduce Bill C-203, An Act to amend the Supreme Court Act (understanding the official languages).

Mr. Speaker, I rise in the House today to introduce a bill to amend the Supreme Court Act with regard to understanding the official languages. I am doing so in honour of my colleague Yvon Godin, the former member for Acadie—Bathurst, who worked so hard on this important file in order to fight for the right of all Canadians to argue their cases before the Supreme Court in the official language of their choice.

It is time to make it mandatory to appoint bilingual judges to the Supreme Court. Understanding both official languages should be an essential requirement. This is about equality between francophones and anglophones when it comes to access to justice. Since the Supreme Court is the highest court in the country, it is crucial that its judges be able to understand both official languages without the help of an interpreter.

I hope this bill will finally become law in the 42nd Parliament.

(Motions deemed adopted, bill read the first time and printed)