Justice Committee on May 15th, 2007

[Marc Tremblay]

No, the costs are not considerable. I understand your previous question better now. It must be pointed out that the proposed amendments to the Criminal Code, as well as the amendment that has been put forward here today, in both cases are only intended for the original document, the document that serves to formulate the indictment against the accused, and not the other pieces of evidence, the evidence on the record, the documentary evidence, the testimony, etc. which are not targeted by these provisions. Therefore, we come back to the statements made by other witnesses indicating that in general, the original document is short and emanates from the state, and not from witnesses.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Tremblay.

Mr. Comartin.

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

Mr. Tremblay, I'm having problems with this, and I guess I just go back to my experience.

Mr. Chair, I want to challenge a bit what you said earlier about this being a Liberal one. In fact, the government motion is a significant change, increasing the rights, where a person, in effect, on application, has an automatic right to this translation.

[The Chair, Conservative, Art Hanger]

When we get to that one—

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

Well, I want to stay with the cost issue, because that's what we're talking about here.

You had to make an assessment, and then the provinces had to make an assessment when they...I don't know if they've agreed, but they understand this is coming by way of application. Any lawyer who has applied on behalf of his client for a trial in the other official language is going to, at the same time, make this application. Anybody who has asked for their trial is going to want those documents translated, so the cost is already there in the government's proposal. In the vast majority of cases, those applications are going to be made almost by rote when you apply for the trial in your own language.

If the provinces haven't analyzed it from that standpoint, they should have, and so should the federal government. So the cost here is a red herring. It really is. There is really going to be no difference. The only thing here is not forcing the individual to have to make the application. In effect, that's what your section is doing, but in the vast majority of cases, if they're asking for the trial, they're going to make the application. So the costs are already going to be there.

[Marc Tremblay]

That's certainly not the experience in Ontario or in other jurisdictions.

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

There's no experience to speak to. You haven't been able to do it.

[Marc Tremblay]

It's been the case law since 1995. It has been on leave to appeal to the Supreme Court, which was refused. This is the state of the law since 1995 and this is what we told the provinces, that this is the state of the law and that this is merely clarification of existing law, and therefore there are no additional costs entailed in moving the bill forward, because the costs are already counted, if you like, in the existing provisions of the code. What we're avoiding here is costly and lengthy potential arguments, which have not arisen often, as to the interpretation of the code, having the potential for these debates to happen again and again before the provincial courts, so we propose clarification of the existing law.

That's why, in going to the jurisdictions, we've told them the intent here is to clarify the existing law. If anyone wants to take issue with whether that's the existing law, they would have had that opportunity. Nobody has challenged that assertion, so my appreciation of the situation is that the provinces recognized that this was the pre-existing requirement of the code and/or that the additional costs would be fairly minor.

We've had no indications from the jurisdictions that on the original way the amendments to the code were framed, they would have objections to this. When we change it to automatic, then that is a separate issue.

I'd like to point out as well, perhaps not to open up another issue, that under the Official Languages Act there are existing similar provisions and they too, since 1988, have been formulated as an on-request formulation so that the non-governmental party before a federal court, when confronted by the representatives of the state, can obtain a copy of the originating documents upon request.

So there is consistency in approach here in what we're doing in terms of the original amendment, and consistency as well with the case law that had gone forward.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Tremblay.

Mr. Bagnell.

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

I'm sorry, I haven't given up—

[The Chair, Conservative, Art Hanger]

I'm sorry?

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

I hadn't given up the floor, Mr. Chair.

Again--and I'm saying this to the rest of the committee--any lawyer who looks at that section of the code once passed, where you can make an application, is going to make the application. You would be on the verge of being incompetent if you didn't, at the time you applied for the trial. So those are going to come anyway.

Let me make one additional point, in terms of the comment Mr. Tremblay made of the Official Languages Act. You're right there, to ask for documentation to be translated. We're talking about a significant difference here in terms of what's in peril. We're talking about the person's liberty in a lot of cases, in these criminal cases, and the right to have that document, it seems to me, should be recognized, with the added risk that you have, as opposed to a number of the other documents that you would be seeking under the Official Languages Act, such as some other documentation coming from the public service.

But you're not necessarily talking apples to apples; you're talking more apples to oranges. It's much more significant having these documents available to you automatically than it would be having those documents under the rest of the official languages provisions.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Comartin. You heard Mr. Tremblay's argument opposing that point.

Mr. Bagnell.

[Larry Bagnell, Liberal, Yukon, YT]

I think we're just about ready to vote, but I want to ask a quick question to the witness before I make a last comment.

Could you make an estimate, without getting really technical, about roughly how many of these types of trials there are a year in Canada?

[Marc Tremblay]

That's very difficult to do. Part of our consultation over the past ten years with the jurisdictions, on recommendations by the Commissioner of Official Languages originally made in 1995, was to seek from them information on how many such minority language trials they have. We suggested various ways of obtaining that information--for example, instead of the amendments that are put forward today on the informational aspects of letting the accused know of their right, introducing a new form into the system. The provinces said that's too formulaic, too formulistic, and there are already too many forms, although that would have allowed us to get to some of that data.

The information we have is sketchy. In places like Saskatchewan they can say they had five trials last year, ten trials the year prior, and two in the current fiscal year, because they have so few. In Ontario, where it's more—

[Larry Bagnell, Liberal, Yukon, YT]

Okay, I need short answers, but I have a second part to my question.

Can you roughly estimate whether an average indictment document would be five, ten, or twenty pages, just for the general public?

[Anouk Desaulniers]

In general, an indictment may have, depending on the number of counts,

one, two, or three pages. But if for some reason we're talking about a mega-trial and it involves many accounts, then it may go up to five or six pages. But it's rarely more than that.

[Larry Bagnell, Liberal, Yukon, YT]

To summarize, as Mr. Comartin said, most lawyers, unless they're incompetent, are going to ask for this anyway. In the odd case in Canada, the one or two times a year when someone doesn't ask for it, we're going to have to translate maybe five more pages. We get more than that translated for each of our meetings. I don't think that's very onerous.

I rest my case.

[The Chair, Conservative, Art Hanger]

Mr. Lee.

[Derek Lee, Liberal, Scarborough—Rouge River, ON]

I'm not going to support the amendment for three reasons, and I accept that prima facie it looks like a pretty reasonable thing to do.

But the first point is that the package of amendments that is proposed in the bill has evolved as a result of PTA agreements--federal-provincial agreements with the provinces--and discussions. The specific amendment now proposed is at variance and inconsistent with what had been agreed to in those discussions.

Second, the provision, the way it's been constructed now, either directly or indirectly imposes a specific automatic procedural burden on a prosecutor. This would be new. Prior to this, or based on the package of amendments that have come through, a prosecutor would be obligated to respond if requested, but the amendment that's proposed by Mr. Bagnell will make it an automatic procedure, a must-have, and if it's not there you're going to get your charges thrown out. I think that should be vetted before we impose it.

Third, we're trying to fix something that, based on the current law of the land, is not broken. Our courts, both on the criminal side and the official languages side, if I take the testimony here at face value, have found that the on-request mechanism proposed by the bill, not by the amendment, is a satisfactory resolution to the two-language challenges we have right across the country in the criminal process.

I'm reluctant to, on the fly, impose this new procedural and legal benchmark without vetting it through the system. I'll leave aside the question of costs that may be there. They may be minor, but believe me, if you have to do something in every case where there's a section 530--that's every case, without exception--if you don't do it right, you lose your case, and I don't want to go there yet.

Thank you.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Lee.

(Amendment as amended negatived)

(Clause 19 agreed to on division)

(On clause 20)

[The Chair, Conservative, Art Hanger]

Next is amendment L-3.

Mr. Bagnell.

[Larry Bagnell, Liberal, Yukon, YT]

This is on the accused having a trial in their language, but the witness doesn't speak that language. This provision allows the prosecutor or judge to examine the witness in the witness's own language. This is a very minor amendment to say it's not always automatically done that way--which it doesn't necessarily have to be--and it could prejudice the accused. It adds the words “if the circumstances warrant”.

It was suggested by the witnesses, and it clarifies that the judge can let the witness speak in his own language or one of his own languages if the circumstance is warranted. It makes sure it's not automatic, and if the circumstances warrant, the judge will allow the witness to speak in his own language.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Bagnell.

Mr. Tremblay.

[Marc Tremblay]

We would say that the bill as drafted with the presence of the word “may”, and en français “peut”, already implies an exercise of discretion by the judge, who would normally take account of the circumstances of the request. But the amendment in that sense goes with the spirit of the bill.