Thank you very much, Mr. Chair.
Ladies and gentlemen of the committee, mesdames et messieurs, thank you for giving me the opportunity to appear today to comment on Bill C-23, and more specifically on the proposed amendments to sections 530 and 530.1, which guarantee the language rights of accused persons.
As stated by the Supreme Court of Canada in Beaulac, the purpose of these provisions is to provide equal access to the courts by accused persons speaking one of the official languages of Canada in order to assist official languages minorities in preserving their cultural identity. For quite some time, the commissioner's office has identified the need to amend these provisions.
To provide some background to my comments, I should point out that Bill C-23 deals with some of the issues that were brought to light in the 1995 study by the then Commissioner of Official Languages, Victor Goldbloom, The Equitable use of English and French Before the Courts in Canada.
I am pleased to see that a number of the provisions of Bill C-23 serve to clarify and improve the language rights provisions of the Criminal Code and must be seen as advancements in that regard.
For example, Bill C-23 clarifies that the justice of the peace or provincial court judge before whom the accused first appears will ensure that the accused is advised of his or her right to a trial in the official language of choice. Currently the accused is informed of this right only if unrepresented by counsel. The extension of this right to all accused represents a positive step forward.
Furthermore, that the purpose of the proposed amendments is to codify existing jurisprudence on language rights in Canada is indeed reflected in a number of the bill's provisions.
For instance, Bill C-23 recognizes the accused's right to receive a translation of the information or indictment against him or her. This is a positive step in the direction set out by the courts. However, under the proposed amendment, the accused would have to make an application for a translation of the information or indictment even if he or she had already chosen the official language to be used at trial.
The information or indictment contains important information required for the accused to respond to the charges. The burden should not fall upon the accused to make an application for translation. He or she should have access to this as promptly as possible without having to make an application.
I recommend that clause 19 of Bill C-23, which adds proposed section 530.01, be modified accordingly.
Another issue that I wish to address today is that of bilingual trials. Under the new subsection 530(6) of the Criminal Code, introduced by subsection 18(2) of Bill C-23, where two or more accused who would otherwise be tried jointly choose to be tried in different official languages, an order that the trial be held in both official languages is warranted. The Criminal Code currently allows for courts to order bilingual trials. However, according to the relevant jurisprudence in this area of the law, for a court to make such an order, it must first be satisfied that the rights of the co-accused and the interests of justice are appropriately balanced. Because this amendment explicitly provides for circumstances in which a bilingual trial is warranted, it is my concern that it would eliminate this important balancing exercise. I therefore recommend that the proposed wording of subsection 530(6) be modified to maintain this element of judicial discretion in ordering a bilingual trial. The holding of a bilingual trial presupposes that the co-accused have a sufficient grasp of both languages to understand the proceedings. This may not always the case.
To conclude, I would like to draw your attention to two issues not specifically addressed by Bill C-23. The first pertains to the fact that the language rights provisions in the Criminal Code are restricted to the trial and preliminary inquiry stages of the criminal process. In the past, my predecessors advocated for the extension of such rights to procedures related to the trial, such as motions, jury selection and bail hearings, as well as the appeal process generally. These are critical stages of the criminal process, and have a significant impact on the outcome of the process as a whole. Without extending language rights to related proceedings, the right of the accused to a trial in his or her official language is not fully achieved. We encourage the government to examine this issue in the near future.
The second, but perhaps most important issue, pertains to the shortage of bilingual judges in provincial superior courts. As you are no doubt aware, the shortage of bilingual judges, that is judges with adequate knowledge of both English and French, constitutes one of the main barriers to access to justice in our two official languages. This problem has been identified by my predecessors since the early 1990s, and by the Department of Justice in a study entitled "Environmental Scan: Access to Justice". It still exists.
The Fédération des associations des juristes d'expression française, the Canadian Bar Association as well as Commissioner Dyane Adam raised the issue before the House Subcommittee on the Process for Appointment of the Judiciary.
In its preliminary report made public in November 2005, the subcommittee recognized the importance of modifying the process in order to remedy the problem. It is important that the superior courts have a sufficient level of institutional bilingualism in order for the accused to benefit from the language guarantees provided for in sections 530 and 530.1 of the Criminal Code. Without this capacity, the language provisions of the Criminal Code have no chance of fulfilling their objective, which is to provide the accused with the right to be tried in the official language of his or her choice.
Thank you for hearing my comments, both positive and constructive, on Bill C-23. I'm very pleased by the positive features of the bill in terms of language rights in the criminal context. However, I would ask that you consider the suggestions I've made in order to improve it, as well as my comments for further advancement in this important area.
I'd be very happy to answer any questions you may have.