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


François Choquette  NDP

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


Defeated, as of Oct. 25, 2017

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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.


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.


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

December 7th, 2017 / 4:30 p.m.
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Thomas Mulcair NDP Outremont, QC

Thank you.

The question on Bill C-203 was put to the House on October 25. Entitled An Act to amend the Supreme Court Act (understanding the official languages), the bill sought to ensure that all justices appointed to the Supreme Court going forward would be able to understand both official languages. Never, in its history, has the Supreme Court had a unilingual francophone judge. The main idea behind the bill, then, was to prevent the appointment of unilingual anglophone justices going forward.

The minister voted against the bill. Earlier, she claimed that she did so because she had a better proposal and that another bill would be forthcoming. When are we going to see it? The Liberals are now in their third year of power.

November 21st, 2017 / 4:15 p.m.
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Alupa Clarke Conservative Beauport—Limoilou, QC

Thank you, Mr. Chair.

Mr. Mendicino, thank you for being here this afternoon.

I merely have a comment, but rest assured, it isn't partisan. I'm not quite sure where to begin, but here I go.

I wanted to repeat my NDP colleague's call for the names of any constitutional experts who advised your government in relation to its stance on Bill C-203.

I'd also like to point out that many political scientists and sociologists alike have studied this issue. It's a serious problem that has plagued Canada since 1982. Distinguished Université de Moncton Professor Donald Savoie demonstrated it quite clearly in his book Governing from the Centre. Working as an intern at the Prime Minister's Office, I saw the process in action—a process that puts Canada's democracy in great jeopardy. I am talking about the current concentration of power in Canada in the Prime Minister's Office and the Department of Justice. Together, the two entities assess every piece of proposed legislation to determine whether any part thereof could be challenged before the Supreme Court and deemed unconstitutional.

Although the practice is beneficial and legitimate, the problem is that it results in distorted public policy. The government should not rely on the interpretation of Department of Justice lawyers and constitutional experts that a piece of legislation could be deemed unconstitutional by a judge in the future. As lawmakers, we have the right to assert that a piece of legislation is sound and should move forward, despite what the constitutional experts might think.

If your government is really so concerned about constitutionality, why would you not submit a reference question to the Supreme Court on the bilingual capacity of judges? That would be the least you could do to ensure fewer distortions in our public policy and legislative authority.

As I see it, you should be taking the opposite approach, doing as you did when you were in the opposition. In other words, you should vote in favour of the bill and let Canadians decide whether there is any cause for a Supreme Court challenge, and let the judges, themselves, explore the matter in their expert writings.

Why, then, would you not refer the question to the Supreme Court in order to ascertain the opinion of the actual judges, beyond the government-paid experts at the Department of Justice?

Official Languages ActRoutine Proceedings

October 31st, 2017 / 10:05 a.m.
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François Choquette NDP Drummond, QC

moved for leave to introduce C-382, An Act to amend the Official Languages Act (Supreme Court of Canada).

Mr. Speaker, I am somewhat less pleased to introduce this bill because, last week, the Liberals defeated Bill C-203, the bill that would have required Supreme Court justices to understand both official languages, despite the fact that they had previously voted in favour of it three times. This time, unfortunately, they defeated the bill, so now we have to do something else.

Now, we can amend the Official Languages Act, which may help the situation but will not resolve everything. It would be a good step forward anyway, and that is why I am introducing Bill C-382, an act to amend the Official Languages Act (Supreme Court of Canada). This bill would amend section 16 of the Official Languages Act so that it also applies to the Supreme Court of Canada. If this bill passes, all federal courts will be responsible for ensuring that judges hearing a case understand the parties' official language of choice without the help of an interpreter. This is a good step forward, but it will not resolve everything. We will have to form government ourselves and introduce another bill like Bill C-203 to fix the problem, so that everyone can access the Supreme Court in the official language of their choice.

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

Supreme Court ActPrivate Members' Business

October 25th, 2017 / 6:30 p.m.
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The Speaker Liberal Geoff Regan

The House will now proceed to the taking of the deferred recorded division on the motion at second reading stage of Bill C-203 under Private Members' Business.

The House resumed from October 19 consideration of the motion 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.

Supreme Court ActPrivate Members' Business

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

October 19th, 2017 / 6:30 p.m.
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LaSalle—Émard—Verdun Québec


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 / 6:20 p.m.
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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 / 6:20 p.m.
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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 / 6:10 p.m.
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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 p.m.
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Ville-Marie—Le Sud-Ouest—Île-des-Soeurs Québec


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.

The House resumed from March 8 consideration of the motion 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.

May 11th, 2017 / 12:10 p.m.
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Bernard Généreux Conservative Montmagny—L'Islet—Kamouraska—Rivière-du-Loup, QC

Thank you, Mr. Chair.

Mr. Pelletier, welcome.

Clearly, you are in favour of Bill C-203 being passed. In your opinion, should this bill be amended to indicate that judges must be functionally bilingual or maintain its current wording? The government distinguishes between bilingual judges and functionally bilingual judges, since it has begun to appoint judges who consider themselves functionally bilingual. The witnesses we have heard before you, including Justice LeBlanc, talked about language skills rather than bilingualism.

It is hard to be against motherhood and apple pie, but I personally make a distinction between someone who is bilingual and someone who is truly bilingual.

Do you make that distinction?

April 11th, 2017 / 11:35 a.m.
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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?

Supreme Court ActPrivate Members' Business

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