Justice Committee on May 2nd, 2007

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

You said earlier that it would be—

[Marc Tremblay]

I said that since 1978, the provision allows for each one of the provinces to act according to its own specific circumstances. For example, New Brunswick has a provincial system which is much more advanced in terms of the equal status of English and French than other provinces. If the province is able to hold hearings throughout jurisdiction, it can do so. In other areas, there is very little demand, and it would be much more difficult. Therefore, in some cases, you might have one or two criminal trials in the minority language in provinces such as Saskatchewan, which would also like to benefit from the flexibility provided by the code.

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

Does the bill propose any changes for New Brunswick? I want to be certain. Under current legislation, can New Brunswick hold decide to move a trial from Bathurst to Fredericton?

[Marc Tremblay]

Under the bill, nothing would change. Under the former legislation, New Brunswick could do that. If this bill is adopted, New Brunswick would still be able to do that.

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

We cannot say that it did have that possibility. According to the bill, there would be no change.

[Marc Tremblay]

There would be no change.

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

That is all, Mr. Chair.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Godin.

Mr. Bagnell.

[Larry Bagnell, Liberal, Yukon, YT]

Thank you.

Thank you for all your answers.

We've received a submission from the Fédération des associations de juristes d'expression française de common law. Have you received the same submission? Do you know? They're going to be appearing before the committee.

[Marc Tremblay]

We've received a number of submissions. We have the one of April 5 that Mr. Godin just referred to, and we have a previous communication of January 23.

[Larry Bagnell, Liberal, Yukon, YT]

Unfortunately, I don't have a date on mine here.

Are you open to the suggestions? Do you know if the department or the minister are open to some of the suggestions?

[Marc Tremblay]

Well, that's a rather broadly worded question.

If I look at their letter of January 23, which deals with a number of topics, one of them is just simply not in this bill. This is a desideratum; they would like to have the bill address this. This bill does not address it, so I think it's outside of the scope of what we can do with the current bill.

In another matter, a second matter, with respect to appeals and accessory proceedings—this is the matter we discussed just a few moments ago—they would suggest that further advances be proposed.

[Larry Bagnell, Liberal, Yukon, YT]

Okay. I think it's a different letter.

I'll just quickly mention these concepts, and then hopefully we can discuss them later.

The first one is that under proposed subsection 530(6), they don't want a trial necessarily automatically to be bilingual. There may be circumstances...so they want the word “may”.

Under proposed subsection 530.01(1), they want the stuff automatically translated for the accused--he doesn't have to ask for it--and also the original document and the translated to be of equal value. One language doesn't prevail.

Under proposed paragraph 530.1(c.1), they want to make sure that the prosecutor doesn't have a witness speaking another language...or only if it's warranted. To qualify that a bit more, they don't want them to use too much discretion.

Under proposed section 530.2, once again the justice can limit the right of the accused to a trial in his language, or a bilingual trial. They just want to make sure once again that this is qualified so that they have to, as much as possible, respect the right of the accused to have the trial in their own language.

Under section 531—and I'm not sure about this, but I'm going to ask them about it when they get here—they want it not to have to be in the territory in New Brunswick; it could be in another territory if the court isn't available.

The final one is that just because a judge or a jury speaks the other language, the language of the accused, it doesn't mean they're going to use it. So they want to qualify proposed paragraphs 530.1(d) and (e) so that not only do they speak the language but it's reasonably possible that they use it.

I can give you a copy of these amendments. You don't have to write everything down.

Some of these amendments sound very reasonable. Hopefully you'll be able to convince the people that they are reasonable. And we'll be having those people as witnesses.

[Marc Tremblay]

Thank you for allowing me an opportunity to give our perspective on these topics. There are many of them, so I beg the indulgence of the committee to grant me a few minutes to go over them.

On the question of automatic translation of indictments, I would refer the committee back to what Minister Nicholson indicated. This is essentially a technical no-hassle type of bill. It was very much sold to jurisdictions on that basis. I think that's an important consideration in matters of administration of justice; we have to remember that while Parliament legislates, the provinces deal with the consequences, and any pressures or additional constraints we put on them may limit their ability to implement the provisions we're dealing with.

The way the automatic translation issue is dealt with in the bill corresponds with what the case law in one jurisdiction in Ontario has stated to be the correct interpretation of the code, which is that a translation of the charging or indicting document will be provided to the accused upon his or her request. The bill ensures clarity in that respect by making it apparent on the face of the code provision, so that it can apply in all 10 jurisdictions instead of simply in Ontario--and in New Brunswick, where I understand it has also been the practice to do so.

To provide equal worth or equality or value to the translated document is, in our opinion, not desirable. The original document corresponds in many jurisdictions to the constitutional right of the person who writes that indictment or charging document to use his own official language. All Canadians are not.... It was never the intent of the Official Languages Act or the official languages program of the Government of Canada to insist that every Canadian, or a large proportion of Canadians having access to public jobs, be bilingual, so we have to be cognizant of their right.

As well, by introducing translation, you introduce errors. You introduce the potential to debase what the true act of accusation is and the potential for more rights of appeal. In our view, it's important to maintain certainty in the criminal justice process while giving the accused something that helps in promoting his use of either official language in the criminal justice system.

On the issue of the use of languages, in the case that the judge makes orders with respect of the witnesses or in the context of bilingual trials, we believe--and the case law certainly indicates this to be the case--that the proper interpretation of the judge in the context of a subsection 530(1) order will always be to put the right of the accused, which is unchanged here, to a trial in his or her official language of choice at the forefront of the considerations that the judge will take into account.

We don't believe this needs to be spelled out in any greater detail than it already has been. This was not always the case, but certainly the recent case law bears that out.

The change of venue, which is the section 531 issue, I believe I've dealt with sufficiently.

I'm not sure if this covers the whole gamut. I'd invite committee members to think of it as one step, a balanced step, with various considerations--the jurisdictions' ability to move forward, as well as our ability to barter a certain number of advances in the process with considerations of efficiency in the justice system.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Bagnell.

There appear to be no other questions for the Department of Justice, so at this point we will conclude this part of the meeting and go into a committee business meeting.

I would like to thank the people from the Department of Justice for their appearance here and for answering the questions. Thank you.

[Proceedings continue in camera]