Justice Committee on May 3rd, 2007

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

I'm from Windsor: I know all about it.

What do you think, Ms. Tremblay or Mr. Fraser?

[Graham Fraser]

Since we have made no recommendation on that subject, I would prefer not to comment.

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

I just want to make one point, because I wasn't here yesterday.

I want the committee to know that I am going to be moving an amendment—and I think the government is going to support this—to reduce the amount of the increase in the fine. Their proposal is to go from $2,000 now to $10,000. I think inflation has not been as severe in this country as it was over the period of time when we increased it from $1,000 to $2,000. So I'm going to be making an amendment; I'm just giving notice. I will move that the fine be increased from $2,000 to $5,000, Mr. Chair.

Those are all my questions.

[The Chair, Conservative, Art Hanger]

That issue came up yesterday, Mr. Comartin.

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

I'm sorry. I didn't know that.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Comartin.

Monsieur Petit.

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

Good morning Mr. Fraser. This is the second time that I have met you. The first time was at the Official Languages Committee.

Good morning Ms. Tremblay, Ms. Aucoin and Ms. Côté.

With respect to Bill C-23, I think that it does provide some protection to the accused. I believe that we agree on that. We are often criticized for following an ideology that is only concerned about the victims. In this case, we have given some thought to the accused. My question is to Ms. Aucoin, who is a lawyer.

About two years ago, there was a megatrial in my province. Do you know what a megatrial looks like? Thirty-eight individuals who were involved in drug trafficking, murders, etc., were all charged at the same time. Some were francophones, and others were anglophones. The language of crime is universal. They were all brought before the judge at the Gouin Court House. The lawyers, myself among them, were not stupid. We asked for separate trials. Why? Because time spent waiting for trials means a double credit, so it is something that is often used.

I am wondering if the trials could be split. In this type of situation, an individual does not want to be charged alongside a co-accused who could testify against him, and vice versa. If I understand correctly, language will also become a tool. Therefore, if you have 38 defendants, you could end up with 38 separate trials.

I am talking about a megatrial. You are probably thinking about an ordinary trial with a single defendant. That would not be very difficult. But in almost every province, there are megatrials related to drug charges. That means that a clever lawyer could now use this bill, which protects the rights of the accused, and there would be 38 separate trials. Two grounds would then be available to him.

You are a lawyer working in the area of common law. I would like you to tell me if you think that could ever happen.

[Louise Aucoin]

It seems to me that with 38 defendants, you would divide the number by 2, since there are only 2 official languages in Canada.

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

I would like you to understand something, Ms. Aucoin. You know that currently, even if a trial is only heard in only one language in British Columbia, under common law, if two people are accused, then the trial can be separated in order to avoid having one defendant testify against the other. So, conceivably, a trial could be divided 38 ways, plus 38 more because of language considerations. Is that correct?

[Louise Aucoin]

We're proposing that provisions be made to allow for the judge's discretion. I have a sister who sat on a jury for a megatrial. Everyone agrees that it's absolute hell. Nevertheless, I don't think the Criminal Code should be rearranged for the sole purpose of accommodating mega trials.

That's the flip side of the coin. These provisions give the accused an additional right. In that type of trial, if there were French-speaking and English-speaking defendants, it seems to me that it would be preferable to put all of the francophones in one group, and all of the anglophones in another.

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

Do I have any time left, Mr. Chairman?

[The Chair, Conservative, Art Hanger]

You do, Mr. Petit.

I know you're a dear colleague and all of that, but I would have to say, being a former police officer, that you would be a police officer's nightmare if you came into a courtroom wanting 38 separate trials.

Go ahead and ask your second question.

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

My question is for Mr. Fraser.

On page 2 of the English version of your document, it says:

The second, but perhaps most important, pertains to the shortage of bilingual judges in provincial superior courts.

In the province of Quebec, judges are appointed by the provincial government, but there are also Superior Court judges. However, when we were working on the issue of judicial appointment committees, we learned that the Superior Court judges appointed in Quebec were assigned to criminal cases in only 2% of cases. So 98% of criminal cases go before provincial judges. If I have understood correctly, this applies only to Superior Court judges, i.e. to those appointed by the federal government. The remaining 98% of judges are not affected by this recommendation.

[Graham Fraser]

Right.

I am neither a lawyer nor a former policeman, but I believe that in Quebec, it is much less of a problem than in the rest of Canada. As a journalist I found that when trials were held in Quebec, the rate of bilingualism among judges and lawyers was quite impressive.

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

I am talking about Quebec because that's the only province I know. If I understand correctly, you are recommending that 100% of judges, who may never work on criminal cases, be bilingual. I don't know whether that's functional or institutional bilingualism.

Do you see any difference between the two?

[Graham Fraser]

We stress the importance of bilingual capacity within institutions, but institutions are the ones with the duty to have that capacity so that defendants can be tried in the official language of their choice. However, that doesn't mean that all judges and lawyers are required to be bilingual.

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

Thank you.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Petit.

Mr. Bagnell, I know you're the only representative of the Liberal Party here. I'm going to pass over the Liberal Party right now, since you've already had one round, and go to Ms. Freeman. But I will come back to you.

[Carole Freeman, Bloc, Châteauguay—Saint-Constant, QC]

My question has to do with transfers to another court. You mentioned an order that the trial be held in another territorial division.

Suppose a city in Saskatchewan could not hold a trial in French. I gave Saskatchewan as an example, but it could be Quebec. What about courts in Trois-Rivières or Joliette, where a trial could not be conducted in English?

It's complex. How could we do this?

[Louise Aucoin]

For example, if someone from Windsor insists on a trial in French and there's no bilingual or French-speaking judge in that division, then they will have to travel at their own expense with their witnesses and counsel. The whole apparatus will have to move to another judicial division. That's how things are done in common law provinces, except for New Brunswick. There aren't thousands of trials, but that is the reality facing an individual who is determined to have his or her trial conducted in French. If there's no judge or all of the apparatus necessary to hold a trial in the language of the accused, but the accused nevertheless insists and is very determined, there's no choice. That's reality.

[Graham Fraser]

It depends on the ability to have a fair trial. The same criterion applies when there has been a lot of media coverage of the accused. If it is decided that an accused cannot have a fair trial in one area because of that coverage, the venue will be changed to ensure that the jurors are not contaminated by that coverage. I think the same criteria apply in the linguistic context.

[Carole Freeman, Bloc, Châteauguay—Saint-Constant, QC]

Except that cases like the one you have just described are rare, unlike official language cases.

[Graham Fraser]

It depends. I don't have any statistics.

[Carole Freeman, Bloc, Châteauguay—Saint-Constant, QC]

If we recommended that judges be bilingual, that would greatly clarify the situation, rather than orchestrating an entire situation around it.

[Graham Fraser]

Obviously. I agree.