This bill was last introduced in the 42nd Parliament, 1st Session, which ended in September 2019.
Introduced as a private member’s bill. (These don’t often become law.)
Defeated, as of Oct. 25, 2017
(This bill did not become law.)
This is from the published bill.
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.
All sorts of information on this bill is available at LEGISinfo, an excellent resource from the Library of Parliament. You can also read the full text of the bill.
Julie Dabrusin Liberal Toronto—Danforth, ON
I'm going to jump in, because I'm quickly running out of time and I want to get in one more question for you.
I would think that as a lawyer you would be well positioned to answer this. There is a private member's bill, Bill C-203, that is being discussed as well. What is your thought about the constitutionality of that proposed bill in light of the Nadon reference?
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.
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.
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.
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.
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.
François Choquette NDP Drummond, QC
Mr. Speaker, this evening, I once again have the pleasure of speaking about official languages. As my colleagues know, I am a tireless supporter of official languages. I am therefore pleased to often be here to participate in the adjournment proceedings.
Today, I would like to come back to a question that I asked the Minister of Canadian Heritage on November 27. That day, the minister appeared before the Standing Committee on Official Languages. I asked her a very simple question, but one that is very important for official language minority communities, a question regarding the principle of by and for.
That means that services must be offered by and for official language minority communities. This extremely important issue has been brought forward by many groups, the two main ones being the Fédération des communautés francophones et acadienne du Canada or FCFA and the Quebec Community Groups Network or QCGN. These are the two largest national groups that represent the two minorities, the anglophone minority in Quebec and the francophone minority in the rest of Canada. They put forward the important principle of by and for.
Unfortunately, submissions by certain federal departments, such as Citizenship and Immigration Canada, do not cover the importance of the principle of by and for. I am not talking about provincial organizations. The provinces are free to use their transfers as they see fit. We owe it to them to respect their jurisdiction.
The Official Languages Act mandates not only respect for linguistic duality but also the promotion of linguistic duality and official language minority communities. Offering some services is not good enough. A whole range of service must be made available to the community. For example, people who need immigration services should not be referred to other services available in French, such as cultural, health, or justice services.
I would like to remind the House that I introduced Bill C-203, which would amend the Supreme Court Act to make equality before the law a reality in the Supreme Court. In other words, it would make bilingualism a requirement for Supreme Court justices so that all Canadians can have access to justice in the Supreme Court. The NDP is alone in championing this. I hope that the Liberals will change their mind and support my bill to entrench the bilingualism of Supreme Court of Canada justices.
Why do government members not support the principle of by and for, which is meant to ensure that services are available in official language minority communities?
François Choquette NDP Drummond, QC
Mr. Speaker, I am honoured to rise again in the House this evening to discuss my bill, Bill C-203, an act to amend the Supreme Court Act (understanding the official languages).
I previously asked my hon. colleague a question about whether the Liberals plan to pass this bill, which calls for all Supreme Court justices to be bilingual. This summer, the Prime Minister of Canada announced a process for appointing justices to the Supreme Court. This process is to be open and transparent and will require justices to be bilingual, which is excellent news.
The NDP has been calling for this since 2008. It has really been a key issue for us. My colleague, the former member for Acadie—Bathurst, Yvon Godin, introduced two separate bills on this since 2008. Then in 2010, he introduced another bill regarding a bilingual requirement for justices, and the Liberals voted in favour of it.
Unfortunately, however, after that bill went to the Senate, the Conservatives let it die on the Order Paper. We were really disappointed, which is why we are introducing it again.
Now that the Liberals are in power, we expected that they would support and pass the bill introduced to ensure the bilingualism of judges.
Everyone supports this bill, including the Commissioner of Official Languages, the Fédération des communautés francophones et acadienne du Canada, the Barreau du Québec, and Jean-Marc Fournier, the Quebec minister responsible for Canadian relations, who said, “Enshrining bilingualism in law is necessary”.
Does everyone believe that the bilingualism of Supreme Court judges must be enshrined in law? No, the Liberals do not. That is really sad. We are asking the Liberals why they do not want to support a bill to ensure the bilingualism of Supreme Court justices in perpetuity.
Previous Conservative governments appointed unilingual English judges and this created serious problems with respect to the interpretation of certain rulings. However, under the Official Languages Act, the official languages have equality in fact. This equality in fact must exist in the highest court as well.
What are the Liberals talking about to avoid voting? They are talking about the Nadon case. Let us discuss this case, then. I asked jurists in this Parliament about it. I asked them whether the Nadon case prevented bilingualism from being one of the criterion for the appointment of judges. The answer was no, the Nadon case did not prevent it. In fact, to determine whether it is constitutional or not, we would have to ask the Supreme Court for an opinion.
For that reason I asked the Liberals why they are refusing to ask for a Supreme Court opinion. If they have opinions that run counter to those of the House of Commons jurists, they should provide them. To date, we have not seen any legal opinions to the effect that bilingualism as an appointment criterion for Supreme Court justices is unconstitutional.
If the Liberals have any such opinions, they should produce them.
Opposition motion—Appointments to the Supreme CourtBusiness of SupplyGovernment Orders
September 22nd, 2016 / 4:50 p.m.
NDP
François Choquette NDP Drummond, QC
Mr. Speaker, I will be sharing my time with the member for Abitibi—Témiscamingue.
I am pleased to rise in the House today to talk about the appointment of Supreme Court justices, an issue of such importance that I even introduced a bill calling for these justices to be bilingual. I will have the opportunity to talk about that in my speech.
The motion calls on the government to take into account regional differences when appointing judges to the Supreme Court and to respect the custom of regional representation. I think that everyone in the House of Commons agrees with that, myself included.
The announcement that the Prime Minister of Canada made this summer caused much disappointment. Of course, we are happy that a committee has been set up to analyze judges' legal expertise and to ensure that they are bilingual and that they fully understand both official languages. Everyone was very pleased and the Prime Minister's announcement was met with praise on all sides.
However, my leader, the leader of the NDP, went to the Standing Committee on Justice and Human Rights to ask the minister what it means to be a bilingual judge. Does it mean that the judge can speak both official languages? The Minister of Justice vaguely answered that she did not know exactly what it means and that it may mean being able to understand but not necessarily speak both languages. That is very disappointing, and it is not at all the bilingualism that we expect of a Supreme Court justice.
We are very concerned about the Minister of Justice's response. I hope that the Parliamentary Secretary to the Minister of Justice will address this situation, because it is unacceptable. We must consider what the Commissioner of Official Languages asked for. He asked that justices have the language skills required not only to understand French and English and to speak these languages, but also to understand the legal terminology every Supreme Court judge should master.
Like the Conservatives, we believe that customary regional representation must be maintained, and that is why we are talking about the Atlantic provinces now. We also believe that judges must be bilingual and that there should be legislation to that effect. I will talk about that shortly. Most importantly, this government must not make the same mistakes the Conservatives made.
Unfortunately, two unilingual anglophone justices were appointed. Other blunders included appointing a unilingual anglophone officer of Parliament. The Liberals made similar mistakes, such as appointing a unilingual anglophone House leader and a unilingual anglophone Speaker of the Senate. The Liberals have had their share of problems and have not always made the right choices.
That is why I want to talk about my bill, Bill C-203, which would amend the Supreme Court Act and introduce a new requirement for judges appointed to the Supreme Court to understand both official languages in accordance with the language skills criteria defined by the Commissioner of Official Languages.
This is extremely important because, when it comes to appointing Supreme Court justices, regional representation is certainly a factor, but we must not forget that, under the Official Languages Act, both languages have equal status. Neither is superior to the other; both are equal.
In our courts, particularly in the highest court in the land, it is to be expected that both official languages should be equal, but that cannot happen if the judges are not bilingual.
We have heard stories, and I am going to share one with you. This really happened, and it is disturbing.
A few years ago, a justice began making his argument in French before the other justices present. The presiding Supreme Court justice suddenly asked him if he could slow down because the interpreters could not keep up. I should point out that one has a limited amount of time to present one's argument. If justices cannot present their arguments at a normal, regular pace, or if they have to slow down, of course this can be problematic.
The interpreters do a wonderful job. I want to commend their work, because I know we also have interpreters working in the House of Commons. We also did a study on the Translation Bureau, and I want to emphasize that the bureau as a whole is doing an excellent job, much like our interpreters. However, as the name states, there can at times be some interpretation of what is said. They do the best they can to interpret the message properly, but it cannot be a word-for-word translation of every point in every sentence. In any case, that would not make sense. Interpretation is a magnificent art, but of course it is the art of interpreting the message.
When faced with something as important as any matter before the Supreme Court of Canada, that is, something of such gravity and critical importance to the entire country, there is no room for even the smallest mistake or tiniest difference between what is said and how it is understood. That is why it is extremely important that all justices understand both official languages.
I want to point out that I introduced Bill C-203 to amend the legislation on appointing judges in order to ensure that they are bilingual. Before that, the NDP did a lot of work on this. My dear colleague, Yvon Godin, is well known by those who have been in the House for many years. He fought for years to ensure that the judges appointed were bilingual. He introduced a bill in June 2008. He started again in November 2008, and in 2010, he introduced the very well constructed Bill C-232. It was more or less the same bill that I introduced. This bill was agreed to by a majority of the members of the House of Commons because the Liberals voted in favour of it. It ended up in the Senate, but unfortunately, the Conservative senators dragged out the process until the House adjourned and elections were called. Unfortunately, the bill died on the Order Paper.
The House did pass the bill, however. The elected members passed the bill. The Liberals are now in power and they are looking for any possible excuse not to pass this bill because it may be unconstitutional.
Why do the Liberals and my colleague, the Parliamentary Secretary to the Minister of Justice and Attorney General of Canada, not refer the bill to the Supreme Court for an opinion? Is this bill constitutional or not? Let us ask the Supreme Court for an opinion.
When we asked the experts whether the bill was unconstitutional, they all said they could not say. We have to ask the Supreme Court for an opinion.
We know that, in the past, the Conservatives unfortunately did not always appoint bilingual judges. Therefore, if we want to ensure that we continue to have bilingual Supreme Court justices, we definitely must pass a bill. That is why this bill must be passed. I hope that the Liberals will take this bill seriously and pass it to ensure that regional representation will finally be mandated, and also to ensure that both official languages are on an equal footing. They must be equal, and one cannot be held above the other. Canadians, regardless of whether they speak French or English in Canada, must be treated equally before the law, especially since the Supreme Court is the highest court in the land.
François Choquette NDP Drummond, QC
Madam Speaker, I thank my hon. colleague for his speech. I am pleased to work with him on the Standing Committee on Official Languages.
He talked about what his government has done for official languages. What he forgot to mention, however, is that at this very moment, the Commissioner of Official Languages does not have enough money to fulfill his mission. This Liberal government has not invested in the Commissioner's budget, nor has it invested in the roadmap for the next two years. That budget remains frozen, despite the demands of the Fédération des communautés francophones et acadienne du Canada and the Quebec Community Groups Network, just to name a couple.
If the Liberal government really believes in official languages and really wants to work on that file, why will it not say whether it will support Bill C-203, my bill, which introduces a new requirement for all judges appointed to the Supreme Court to understand Canada's two official languages, so that everyone, whether English-speaking or French-speaking, is equal before the law?
François Choquette NDP Drummond, QC
Thank you, Mr. Chair.
Mr. Commissioner, thank you for all of the good work you have done over the past years.
I agree with you that Mr. Mauril Bélanger has worked very hard to defend official languages. I would also like to mention Yvon Godin, who also devoted himself to that cause.
On this topic, I am happy to know that you are following the progress of Bill C-203, which I introduced and which deals with the understanding Supreme Court justices have of official languages. I hope it will be adopted. In this regard, you explained very well the importance of your report entitled “Access to Justice in Both Official Languages: Improving the Bilingual Capacity of the Superior Court Judiciary”. I am happy to learn that we will finally be able to dust off that report, which had been shelved. I think that the Minister of Canadian Heritage, Ms. Joly, took note of this when she came to meet with us. I hope to see the adoption of this bill my former colleague Yvon Godin worked so hard on over many years.
Thank you very much, Mr. Chair.
Mr. Chair, members of the committee, good afternoon.
I'm pleased to appear today before this committee for the first time since the beginning of this Parliament. Although I'm not sure how many more discussions we will have before my term as commissioner comes to an end in October, I'm honoured to have been welcomed so frequently by your committee and to have had such productive exchanges with you.
I would be remiss if I did not say a few words about Mauril Bélanger's enormous contribution to official languages, both as a member of Parliament and as a minister. He has always been an invaluable source of support and guidance.
This afternoon, I would like to talk to you about measures to improve access to justice in both official languages, an audit of the Treasury Board of Canada Secretariat conducted by my office, and the work I plan to complete between now and the end of my mandate. We will also have an opportunity to discuss the main estimates, which were tabled not long ago.
With regard to the interest you expressed concerning the selection of the next commissioner, I have discussed the choice of my successor with both the former and current Clerk of the Privy Council Office and have provided them with a list of six criteria that I believe could guide their choice: competence, comfort and eloquence in both official languages; ability to articulate a vision of linguistic duality; independence, essential for any agent of Parliament; high ethical standards and a value of respect; comfort as a public figure; credibility based on prior experience with the issue of official languages, in terms of knowledge of the act, knowledge of linguistic minority communities, or knowledge of Parliament.
On reflection, I would add to that list the importance of being what a former colleague of mine called “a digital native”: someone who is comfortable dealing with the new challenges of social media and the Web 2.0 world and their implications for language policy.
Based on my conversations with the Privy Council Office, the process of developing selection criteria does not seem to be completed. If your committee believes that other criteria would be more appropriate, there's still time to share that information with Mr. Wernick.
Acces to justice in both official languages is one of the issues my successor will have to address. The year 2017 will mark 150 years of legislative and judicial bilingualism in Canada.
Too often, Canadians who seek justice in the nation's superior courts in the official language of the minority still have to plead their cases in the language of the majority, or incur additional costs and delays if they want to be heard by a bilingual judge. This is due in part to the bilingual capacity of the superior court judiciary, which continues to be a challenge in several provinces and territories.
This is why in August 2013 I published a study called “Access to Justice in Both Official Languages: Improving the Bilingual Capacity of the Superior Court Judiciary”.
The study, conducted jointly with my counterparts in Ontario and New Brunswick, found that the process for appointing judges to superior courts did not guarantee a sufficient number of judges with the language skills required to hear Canadians in the official language of the minority without delays or additional costs.
I therefore made 10 recommendations to address the situation. I also stressed the importance of establishing a collaborative approach involving Canada's Minister of Justice, the minister's provincial and territorial counterparts, and the chief justices of the superior courts.
The Canadian Bar Association supported this study by adopting a resolution in February 2014 in which it urged the federal Minister of Justice to implement the recommendations of the study in co-operation with the provincial and territorial ministers and the chief justices of Canada's superior courts and appeal courts.
In 2015, then federal Minister of Justice Peter MacKay replied that he did not see the need to change the current process and initiated no discussions with his counterparts, despite the interest expressed by some of those counterparts, particularly those in Ontario and New Brunswick.
Indeed, some interesting initiatives have been undertaken in both of those provinces. In the spring of 2015, Madeleine Meilleur, Ontario's Attorney General and Minister responsible for Francophone Affairs, launched a pilot project to enhance access to justice in French.
The objective of the pilot, which focuses on an active offer of service, is to provide quality French language services to French-speaking litigants and lawyers at the Ottawa courthouse.
The minister also wrote to my office in 2015 and said she would support any measure the federal Minister of Justice took with respect to appointing bilingual judges.
In New Brunswick, provincial court judge Yvette Finn has been running a popular language training program since 2011 for provincially appointed judges from across Canada. I will meet with the current federal Minister of Justice soon to discuss the study and other collaborative opportunities that could be undertaken with Minister Meilleur.
I will also ask the Minister of Justice to implement the recommendations contained in the study report.
I am hoping that the government will also implement the three recommendations contained in my office's January 2015 Audit of the Treasury Board of Canada Secretariat within the context of the 2011-2012 Strategic and Operating Review. These recommendations focus on ensuring that the shortcomings found in the audit are not repeated in future expenditure reviews.
As a federal institution, the Treasury Board Secretariat must implement part VII of the act when carrying out its mandate. It is required to support federal institutions by providing clear instructions on what measures to take to meet their obligations fully and to avoid hindering the vitality of official languages minority communities during budget cuts.
The audit results are available on my office's website.
After 10 years as commissioner, I'm sure many of you expect me to provide an overview of the status of official languages in Canada. To that end, I intend to publish a series of key documents between now and the end of my mandate. These include my annual report, which will be released on May 19, along with new report cards for 33 federal institutions; an overview of how I've exercised my role before the courts; a study on active offer to the public by federal institutions; a study on early childhood development in French-speaking minority communities; the results of a public opinion poll on what Canadians think about various issues related to official languages; and a follow-up to my 2012 audit of Parks Canada.
In June I will table a special report to Parliament to propose options aimed at reinforcing the implementation regime applicable to Air Canada.
A number of other issues will continue to be a priority until this fall, including the jurisdictional conflicts between my office and CBC/Radio-Canada, and planning for the next iteration of the official languages roadmap. My office will also be monitoring Bill C-203 concerning the bilingual capacity of judges appointed to the Supreme Court of Canada, and Bill S-209 regarding part IV of the Official Languages Act.
On a final note, in addition to planning our own activities to celebrate Canada's birthday next year, my office is working with various federal institutions to encourage them to include and promote official languages during the celebrations commemorating the 150th anniversary of Confederation. In that context, we published a brochure for the organizers of the 2017 celebrations.
Thank you, Mr. Chair.
I'd be pleased to answer any questions you or your colleagues may have.
François Choquette NDP Drummond, QC
Thank you, Mr. Chair.
Once again, Madam Minister, I thank you for being here to answer our questions.
The Commissioner of Official Languages issued a very important report about access to justice in both official languages. Unfortunately, that report has been gathering dust. I hope that you are going to dust it off and take a good look at it because it makes some really good recommendations. I am talking about the report of the Commissioner of Official Languages on access to justice.
As you know, I introduced a private member's bill, Bill C-203, to require judges who are appointed to the Supreme Court to be bilingual and to be able to express themselves in both languages. I think that is extremely important. This issue has been under debate for a long time, nearly 10 years now. Yvon Godin, former member for Acadie-Bathurst, fought for years to try to make this happen. I hope that you will support my bill. That is the first thing that I wanted to say.
I have another question for you.
The Translation Bureau has already said that the automatic translation tool would be used only for internal communication and to write emails. Is that correct?
Sylviane Lanthier President, Fédération des communautés francophones et acadienne du Canada
Mr. Chair, members of the committee, thank you for inviting us to appear before you today.
My name is Sylviane Lanthier, president of the FCFA. With me today is our vice-president, Audrey LaBrie.
First of all, a few words about our organization and who we represent.
In 9 provinces and 3 territories, 2.6 million people have chosen to live in French. The vibrant and diverse francophone communities in every region of the country are the reason Canada can boast of genuine linguistic duality. The FCFA is the main voice of those communities and the people who belong to them, people who are determined to live their lives in French.
In recent decades, francophones in minority communities have had to turn to the courts several times to assert the language rights guaranteed to them under sections 16, 20 and 23 of the Canadian Charter of Rights and Freedoms. It was largely to support them that the Court Challenges Program, the CCP, was established in the 1980s. As you may know, the program had two components, one to protect language rights and the other to protect equality rights.
The CCP had a rather difficult history: its funding was eliminated in 1992, restored in 1993, only to be eliminated again in 2006. After the FCFA filed a petition for judicial review with the Federal Court, the government of the day created, in 2008, the language rights support program, commonly known as the LRSP. Simply put, our communities have not had access to the CCP for nearly 10 years to secure support for new language rights cases; we also cannot overlook the seven years during which the LRSP served this support role.
This is why, in the wake of the current government's commitment to reinstating the CCP, the FCFA board of directors decided last November to create an external committee to study the issue and to draft recommendations. For us, it was not simply a matter of choosing between two programs. For the first time in nearly a decade, we have an opportunity to thoroughly examine how support is provided to Canadians wishing to assert their language rights.
The committee was made up of outside parties familiar with both programs, although they were not directly associated with any ongoing cases or issues. It also included representatives of the Quebec Community Groups Network, to ensure that its work and recommendations would reflect a shared perspective of official language minority communities in Canada. Finally, Michel Bastarache, former Supreme Court justice, provided support to the committee. Both the CCP and the LRSP were notified of the creation of this committee.
The committee's mandate was to answer the following question: what would be the best way to uphold and promote the language rights of Canadians? The final report was submitted in February to the FCFA board, which broadly adopted the committee's recommendations. You have before you the resolution to that effect.
Without going into detail, I would like to highlight a few of the principles adopted by the committee and endorsed by the FCFA.
First, the sustainability and independence of the program are important. As I said earlier, the funding of the CCP was eliminated twice, and after the last time, nearly three years went by before Canadians wishing to assert their language rights could once again receive support.
That is why the creation of the enhanced program we are recommending should be based on federal legislation and therefore have a legal foundation. That is also why the government should support the enhanced program with a substantial initial endowment fund that would enable it to operate independently thereafter.
The second principle is that this enhanced program should be specifically devoted to language rights. Let me be very clear: the FCFA recognizes the importance of equality rights and fully supports the idea of a program dedicated to defending those rights. To put it simply, since the legal foundation of language rights differs from that of equality rights, we think two separate programs should be created.
Third, this enhanced program should be expanded to allow for redress under such legislation as the Official Languages Act or any other federal statute pertaining to language rights. Currently, the LRSP allows for recourse only pursuant to constitutional language rights.
Finally, given the significant growth in demand for the defence of language rights since the LRSP was established, the government's initial endowment fund should represent a significant increase in funding.
The FCFA is aware that the federal government announced in the March 22 budget that it would reinvest in the Court Challenges Program. We appreciate the government's gesture of support but maintain that the resolution we put before you today—which is the result of serious and extensive study—best reflects the needs and aspirations of official language minority communities.
Before, closing I would like to speak for a moment about Bill C-203, which was introduced by MP François Choquette. This bill would amend the Supreme Court Act by making the ability to understand both official languages without the assistance of an interpreter an essential requirement for appointment to the highest court of the land.
As you surely know, Bill C-203 is the successor to two bills tabled in the last Parliament by Yvon Godin, the former member for Acadie-Bathurst. This has been a topic of discussion for nearly 10 years. At issue is essentially the right of members of the public to be heard and understood in the official language of their choice before the highest court of the land.
Thank you.
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)