Justice Committee on May 3rd, 2007

[Graham Fraser]

I will start with the question on bilingual trials. We found that bilingual trials would become automatic. That's based on the assumption that the co-accuseds know both languages equally well and are equally bilingual and thus understand the charges, the testimony and the evidence. Clearly, that is not always the case.

The judge should be given the discretion to determine in one case, that the trial should be bilingual, but in another involving co-accuseds, that the circumstances are different and that the co-accuseds do not have the same ability as others to understand the proceedings.

[Réal Ménard, Bloc, Hochelaga, QC]

The judge does not lose that discretion under the current bill. In some cases, it's automatic, but the judge does not lose this discretionary authority.

[Johane Tremblay]

In fact, the provision contains an ambiguity. As drafted, the provision could give rise to two possible interpretations. Once the co-accuseds choose to be tried in different official languages, a bilingual trial would automatically be ordered. That interpretation is possible.

What we are suggesting is consistent with the case law, which recognizes that the judge has the discretion to evaluate, on one hand, the language rights of the accuseds, and on the other, the interests of justice. Does holding two separate trials serve the interests of justice? The two interests at stake have to be weighed. That's what the case law says. Since the main purpose of the bill is to codify the current case law, subsection 530(6) should maintain that judicial discretion as per the current case law. It's just a matter of clarifying what we believe to be the legislator's intent.

[Réal Ménard, Bloc, Hochelaga, QC]

Would your legal services, of whom you appear to be a distinguished representative, be able to propose some wording to the committee?

[Johane Tremblay]

We did attach wording to that effect to our presentation.

[Réal Ménard, Bloc, Hochelaga, QC]

I look forward to reading it.

Let's talk about Quebec. I'm thinking of the Blaikie decision, the Ford decision, etc. If access to bilingual services were to be extended beyond the preliminary inquiry and the trial on the merits, what influence, in view of current constitutional law, would that have on Quebec's obligations?

[Graham Fraser]

I don't think there would be any change, because there is no problem in that respect in Quebec, but I am going to refer that question to my legal counsel.

[Johane Tremblay]

The proposed provisions remain within a criminal context. Under sections 530 and 530.1, language rights would be extended throughout the entire process, not just to the trial itself.

[Réal Ménard, Bloc, Hochelaga, QC]

In other words, you want to extend these rights to all related proceedings.

[Johane Tremblay]

The idea is to extend it to all related proceedings, including motions, but also to appeals, because if an accused chooses French at trial, but on appeal no longer has the right to choose the language in which the appeal is to be held, that could have an effect on the choice of language at trial.

[Réal Ménard, Bloc, Hochelaga, QC]

I intend to move a motion that we devote a few meetings in September to the issue of bilingualism in justice.

What is it that would you like? You know that this committee has questioned Justice Rothstein, whose competence is not in question. However, how can a government appoint a unilingual English-speaking judge to the Supreme Court? You will recall that the government dealt this affront to francophones. I am not questioning the skill and ability of Justice Rothstein. However, it doesn't make sense, and the same thing has just been done with Mr. Sullivan, the ombudsman for victims of crime, who can only speak English. I think we have to send a very clear message, especially to the current government, which is less concerned about bilingualism.

What would you like to see, in terms of gentle legislation coercion, for there to be more bilingual judges?

Perhaps Ms. Aucoin might have some ideas on that.

[Louise Aucoin]

We believe there should be some sort of evaluation of the needs of each province. We hear all kinds of stories, and I think there should be some language criteria on selection committees—

[Réal Ménard, Bloc, Hochelaga, QC]

—especially for Superior Court judges.

[Louise Aucoin]

That's right.

[Graham Fraser]

I believe that my predecessor, Dyane Adam, has already made a presentation on this topic to the committee. I agree that it should be an important selection criterion. The Supreme Court is currently exempt.

Allow me to speak in more general terms. In my opinion, linguistic capability is becoming more important when it comes to leadership in Canada, and not only in the legal field. All of the political parties have come to understand this. We can live in only one language in Canada's regions, but I think that in order to play a real leadership role in this country, one must be able to speak both languages. This means that not only are secondary schools responsible, but so too are the universities, and in this case, the faculties of law.

If it is well understood at the outset that one must master both official languages in order to rise through the ranks within a given profession, this will have a broad implication for professional faculties.

[Réal Ménard, Bloc, Hochelaga, QC]

Do I have enough time to ask another question?

[The Chair, Conservative, Art Hanger]

Thank you, Monsieur Ménard.

Mr. Comartin.

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

Thank you, Mr. Chair.

Thank you for being here today, Mr. Fraser. I would like to take this opportunity to congratulate you.

My question is for Ms. Tremblay and for Ms. Aucoin.

I have read and reread the proposed amendments to section 530.1, and I just can't seem to get my head around them. I don't really know if the government should bring in these changes which will adversely affect the rights of francophones in Manitoba and Saskatchewan before the courts. I would like to hear your opinions on this.

[Louise Aucoin]

We, in New Brunswick, feel that trials should never be transferred from one judicial district to another for reasons related to language.

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

Things won't really change in New Brunswick, because you have enough judges and you are bilingual enough; that is not a problem.

[Louise Aucoin]

Yes, but just in the last month, two new unilingual anglophone judges were appointed. I spoke recently with a judge from the Court of The Queen's Bench who has noticed that few bilingual judges are being appointed in New Brunswick. Of course, if we compare the province to the rest of the country, we have better access to trials in both official languages and it is probably easier here than it is elsewhere, but they are still taking a step backwards in New Brunswick.

It may be different for someone who lives in Saint-Boniface, for example. If someone is accused of rape in Saint-Boniface, that person may prefer not to have his case heard in French. Otherwise, everyone from his village or his community will attend the trial. That person might prefer to have his case heard in English in Winnipeg. That's what happens, so the accused should have the choice. Do you think that no one will ever be accused of rape in Saint-Boniface?

In any case, we can understand that some accused may prefer not to appear in court in their own region. Things are different everywhere. In New Brunswick, generally speaking, the trial will be held in French if the accused is French-speaking.

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

Ms. Aucoin, are the French-speaking members of the legal profession ready to accept the government's amendments to section 530.1?

[Louise Aucoin]

We do not accept them for New Brunswick.

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

It isn't really possible to have a measure for only one—

[Louise Aucoin]

Yes, it is done for the Constitution. I have also spoken to people from Ontario. They say that is how it currently works. If you don't want a trial in French in a given region of Ontario, then you request a change of venue.

I'm not saying that it is right or that it would be my first choice, but according to the francophone lawyers in Ontario, that is how things are done now.