Justice Committee on May 2nd, 2007

[Marc Tremblay]

Sure.

There are various circumstances in which an order of a bilingual trial might be appropriate. They may be appropriate, for example, for a single accused who is a francophone in British Columbia. That was the case of Mr. Beaulac, and the Supreme Court commented favourably upon the order made by the courts in B.C. in his case. He was a francophone, but he was surrounded by witnesses and facts and evidence that were in the English language. So to have a trier of fact and a trier of law who could understand the evidence directly in both languages was the appropriate order, certainly in the Department of Justice's view and in the Supreme Court's view.

There are other circumstances where you might have multiple accused or more than one accused who each requests and obtains and has the right to obtain a trial in their language and should be joined jointly, so a bilingual trial is in order then.

So you have two very different sets of circumstances there, and right away, just by looking at those two examples, you can imagine that the types of orders the judge might want to issue at the beginning of a trial for a single accused would be quite different from those he might order in the context of a joint trial of accused who speak different languages.

He may very well want, in the first case, to ensure--and I would argue that in keeping with the spirit of the provision he would have to order--that most of the trial take place in the French language. The provision allows for debate to occur with counsel present in court on what the appropriate order ought to be at the beginning of the trial. Likewise, in a bilingual trial there could be submissions made by counsel for each accused and an appropriate order made.

[The Chair, Conservative, Art Hanger]

Excuse me, Mr. Tremblay. I'll just excuse the minister now, and if you want to continue on with your explanation, feel free.

[Rob Nicholson, Conservative, Niagara Falls, ON]

Thank you very much. I appreciate the support this bill has generally received. I wish you well in your deliberations, and I thank our guests from the Department of Justice for all the help they are providing.

Thank you very much. I'm sure I'll be back again soon before this committee, Mr. Chairman.

[The Chair, Conservative, Art Hanger]

Mr. Tremblay, continue, please.

[Brian Murphy, Liberal, Moncton—Riverview—Dieppe, NB]

Did the minister's time come out of my time?

[The Chair, Conservative, Art Hanger]

Feel free. So you have another question?

[Brian Murphy, Liberal, Moncton—Riverview—Dieppe, NB]

Well, it's the same question, because it's very important. Beaulac was fairly easy for us to all comprehend: that you have an island francophone, frankly, pardon the pun. I don't know if he was from Vancouver Island.

Anyway, the point is that in New Brunswick, bilingual often means English. And I can see that this order in advance--I suppose it's something we haven't done yet, so we'll see the animal as it grows--must have to be subject to argument and amendment on an ongoing basis, although that's not the way this section reads.

The other thing I'd like to bring to your attention, being somewhat experienced in bilingual civil trials, is that's often done by agreement, and there are far fewer points of appeal in a civil trial over language--because it's about money usually--than there are with respect to the rights of an accused. So all of these things set up, in my view, automatic appeal points if the defence lawyer later says “Well, the order made by the judge just didn't give me my right to have a trial in the language of my choice”.

I'm not criticizing the effort; I'm just saying that sometimes, in an effort to make things better, we set up problems. This we should know, because we're a budding bilingual country really, but are there examples that would be more specific than having a judge set it up at the beginning by order?

[Marc Tremblay]

What we do have are examples where without this specific power being provided to the judge, no order was made, and there were, as you described, these ongoing agreements among counsel during proceedings.

The end result was that the accused at the end of a trial turns around and says “I haven't had a trial in my language”, and the Court of Appeal of Ontario, with Justice Charron, in her last judgment before she ascended to the Supreme Court, said this is wrong; this is not a bilingual trial and therefore the charges against the accused will have to be re-tried at great expense. And sometimes this becomes an impossibility in law.

So that's the type of problem we're addressing. Judges did not feel that they had the ability to deal with the issue, that they were given that discretion, so they left it up to chance, more or less. Hence, the objective, as you describe, the perhaps noble objective of bringing greater clarity, allowing these debates to take place more formally. Yes, there may be disagreements at various instances, but it would be preferable that those debates be within the context of the code's provisions rather than in the informal way we've seen them happen, which do result, in practice, in less of a bilingual trial than otherwise.

[Brian Murphy, Liberal, Moncton—Riverview—Dieppe, NB]

We have fifteen seconds on this. Just to put on the record that section 18.1--

[The Chair, Conservative, Art Hanger]

You're stretching it there, Mr. Murphy. Go ahead.

[Brian Murphy, Liberal, Moncton—Riverview—Dieppe, NB]

Fifteen seconds. Section18.1 codifies what's been happening in New Brunswick for some time, in that the judge often, irrespective of who counsel is, makes it clear to the accused that he has the right to a trial in both languages.

Fifteen seconds, true to my word.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Murphy.

Mr. Petit.

[Daniel Petit, Conservative, Charlesbourg—Haute-Saint-Charles, QC]

I have a technical question. We are talking extensively about language, and there have indeed been improvements on some points. As you said, some technical issues have been corrected. I have a question that perhaps Ms. Desaulniers can answer.

When an individual is arrested, he can be released on bail. The individual goes directly before the courts, and in many cases, even the lawyer does not know what the language of the accused is. In fact, legal aid lawyers are often waiting around the courtrooms until the first one available is chosen. The justice does not know whom he's dealing with, but must determine whether the accused will be released or detained.

Is there a risk that someone may exercise their current rights in order to delay a hearing? If bail is not granted within the required timeline, a person may call upon this under other procedures.

How do you manage this aspect of language-rights issues?

[Anouk Desaulniers]

Usually, when an individual is arrested, he is indeed taken before a justice of the peace. If the Crown is against releasing him, a bail hearing must be held. With respect to language the hearing is held in, I will defer to my colleague.

However, there are two possibilities with respect to bail. A justice may decide that one of the conditions of release is paying a certain amount of money. This is then set out in the bail conditions, and the individual is held in detention until the conditions are met. Once all conditions are satisfied, and bail is paid in cash, the individual is released.

[Daniel Petit, Conservative, Charlesbourg—Haute-Saint-Charles, QC]

That was not the point of my question.

The accused is taken to the court house to appear before justice. Yet the justice was not chosen: he is designated. If, as Mr. Murphy mentioned, the judge has trouble understanding French—something we run into often in our practice—what can be done? The judge is the only one who is designated. There are no other designated judges.

[Marc Tremblay]

I think the current provisions of the Criminal Code have to be taken into consideration. The accused has the right to a trial and a preliminary hearing.

[Daniel Petit, Conservative, Charlesbourg—Haute-Saint-Charles, QC]

Therefore, the bail is not covered.

[Marc Tremblay]

Proceedings ancillary to the trial are not covered. It is an issue that both the Commissioner of Official Languages and various French-speaking jurist associations have been raising since 1995. As you have just pointed it out again, we should look into how the situation could be corrected. What could result is a bilingual justice system that does not reflect the rate of bilingualism in any other sphere of the public sector. For example, here in parliament, no one is required to be bilingual as a prerequisite to becoming an MP. In the same fashion, judges are not required to be bilingual.

Applying the rights of the accused above and beyond a preliminary hearing, for example during ancillary proceedings, appeals, etc., would impose a burden on the justice system. Representatives from various jurisdictions—and we have studies confirming this—have said that their respective systems could not bear the burden. Obviously, in some regions of the country, a higher level of bilingualism is permitted or accepted for practical reasons, or in compliance with applicable provincial regulations. However, in cases where levels of bilingualism are only a few percentage points, introducing a bilingual system is out of reach.

For now, the problem has not arisen. Some would like to see these rights applied to other procedures, but it is currently not the case.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Petit.

Mr. Godin.

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

I'd like to make a brief comment. Members of Parliament are perhaps not bilingual, but they are elected by the people by democratic vote. That is how the public chooses elected officials. Here, we are talking about appointments, and in some cases, conditional appointments. We can debate this, but we've already had this discussion.

Earlier, I asked the minister a question relating to a letter sent by Ms. Louise Aucoin, and dated April 5, 2007. The third paragraph of her letter reads as follows:

The FAGEF wishes to inform you that it remains concerned over clause 531 of the proposed legislation, and its application in New Brunswick. In light of the province's specific linguistic status, the possibility of holding a criminal trial in French must be made available in all territorial ridings of New Brunswick so that the accused will not be obliged to sit his trial in any other territorial riding than the one concerned. The FAGEF would like to see an amendment made to clause 531 of Bill C-23 accordingly.

Have you had a chance to look at this letter?

[Marc Tremblay]

Yes, and we have not yet had the opportunity to reply to Ms. Aucoin, since we were in the midst of preparing our committee appearance, and we knew that she would be speaking before the committee. We expressed our opinion earlier. To our mind, no change has been proposed. The discussion, as it were, reached a dead end. Because if ever the committee decided to strike this amendment, and the decision is supported by Parliament, the code would still contain clause 531 which sets out changes in jurisdiction. That would not be the end of it. The problem, if there is one, and I do not believe there is, dates back to 1978, and the provision has been in the code since then. This bill has nothing to do with that.

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

Earlier, you talked about Manitoba. I think it's what the people of Manitoba want.

[Marc Tremblay]

Yes, what the provisions in the code—

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

It is the same clause; you simply cleaned it up. What more is this going to give to Manitoba?

[Marc Tremblay]

It gives nothing more in this case. In fact, it can only be considered cleaning up.