There are two things. The intent behind the bill in those provisions is not to change anything with respect to the part of the phrase that required the judge to “speak”. We haven't changed that. That was there in 1988: the judge “speaks”; the prosecutor “speaks”. So you take issue with that, and I'll come back to it. We haven't changed that.
What the bill does is clarify that this requirement that the judge speak the language of the accused also applies with the necessary adjustment in bilingual trials. That may mean that the judge needs to speak both official languages. That's the thrust of the bill.
On the issue of whether the judge or the prosecutor should actually use the language of the accused or use both languages where that's the order made, I would say, first, it is in our view an unnecessary specification, because the case law again has interpreted the existing provisions of the code in that way, that when the code indicates that the judge “speaks”, this actually means that the judge and the prosecutor must indeed use the official language of the accused.
As well, I would caution the members that it appears to me that the motion as drafted actually would reduce the right of the accused as it's currently understood under the code. If I can explain that, currently with the phrase that says the judge will use the language of the accused, in the case law in Ontario—this is the Ontario Court of Appeal in the recent case of Potvin—Madam Justice Charron, as she then was, indicated that it meant the judge would actually be required to use the language of the accused throughout the proceedings. Whether he was speaking to witnesses, whether he was speaking to the Crown, whether he was speaking to the accused, the judge would actually be using the language throughout—hence, our slight qualification to that situation by providing in the bill that in exceptional circumstances the judge might examine the witness in a language other than the language of the accused.
By adding the words, “shall use the official language of the accused when addressing the accused”, we feel that might actually narrow the scope of what is currently required and what is certainly our interpretation of the requirements of the act, both for the judge at paragraph 530.1(d) of the Criminal Code, and for the Crown or the prosecutor at paragraph 530.1(e).