Justice Committee on May 15th, 2007

[The Chair, Conservative, Art Hanger]

Mr. Comartin.

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

I'm just a bit concerned that we have no criteria or guidelines for “if the circumstances warrant”. It's wide open.

[Marc Tremblay]

There are other provisions in section 530 and section 530.1 that use similar language. Some more specific language was at stake in the Beaulac case, which was “if the administration of justice warrants it”. Whatever the phrase is, the Supreme Court has stated that the courts would interpret these discretionary powers in the code with a view to implementing the basic right of the accused to a trial in his or her language.

So we have guidance on what the types of circumstances there might be, but it does open up this section to some interpretation. In the original amendment, “may” and “per” would have developed according to case law as well.

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

If we put in “if the circumstances warrant”, are we limiting the discretion? That is not Mr. Bagnell's intention; he wants to do just the opposite and broaden the scope of the discretion. I wonder if that will limit the justice to the interpretation of previous cases.

[Marc Tremblay]

My understanding of the witnesses' testimony is that they indeed wanted to circumscribe the exercise of discretion used by the judge. The fear, if I understood the testimony correctly, was that the judge might have recourse to circumstances unrelated to the right of the accused in making this determination.

So I sense that the thrust of the amendment is to direct the judge to those types of considerations in making his order. But again, from my perspective, “may” or “if the circumstances warrant” are pretty much to the same effect, taken in the context of the interpretation of the provision as drafted in the whole.

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

Okay.

Thank you, Mr. Chair.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Comartin.

(Amendment agreed to [See Minutes of Proceedings])

[The Chair, Conservative, Art Hanger]

We'll now go to amendment L-4, still dealing with clause 20.

Mr. Bagnell.

[Larry Bagnell, Liberal, Yukon, YT]

Thank you, Mr. Chair.

I think everyone agrees that the person has the right to a judge or prosecutor in their language. That makes sense. That's a great change to the code. But that doesn't require them to speak to the accused in that language. So all this amendment does is say that they will address the accused in that language. For a lot of us, you can get a rating in both languages, but you may be more comfortable in one. Therefore, you may not follow the intent of that change by not using the language.

All this does is say that not only does the accused have a right to a judge or a prosecutor who speaks his or her own language, but that they also will speak that language to the accused.

I'd be happy to hear from the department.

[The Chair, Conservative, Art Hanger]

Mr. Tremblay.

[Marc Tremblay]

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).

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Tremblay.

Mr. Moore.

[Rob Moore, Conservative, Fundy Royal, NB]

I don't have anything to add to that.

[The Chair, Conservative, Art Hanger]

Mr. Comartin.

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

Mr. Tremblay, it was francophone lawyers who appeared before the committee who recommended that we proceed in this manner. Did you find any cases where the judge did not speak to the accused in his or her official language?

[Marc Tremblay]

Yes, that was the situation in the Potvin case. There was a trial order. I think it was a bilingual trial order, but I am not absolutely sure. It may have been for a French trial. For the purposes of this argument, let us presume that it was supposed to be a bilingual trial. The judge spoke English, except when he spoke to the accused. In the same way, the crown attorneys made their submissions in English, except when they were addressing the accused. This case went all the way to the Ontario Court of Appeal, where the court ruled that the accused had been denied the right to stand trial in his own language.

In other words, a French trial must take place primarily in French, rather than in English with rare moments in French when someone is speaking to the accused. It must take place in French, but with accommodation, particularly when some witnesses do not speak French.

[The Chair, Conservative, Art Hanger]

Mr. Lee.

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

Thank you.

I'm inclined to follow the advice of the department here. I can see conceptually how this provision could in some circumstances narrow the rights of the accused. I'm really cautious—and I'm referring to my remarks on a previous amendment—about monkeying with courtroom procedures on the fly.

Also, the way this amendment is worded imposes a statutory obligation in a criminal trial. As I interpret it, if a judge were to inadvertently make a remark that is not in the official language of the accused, it would be a statutory non-compliance with a right of the accused. That could overturn the whole trial. You could have an accused with a counsel whose official language is other than that of the accused. So you have one whose basic language is French, one whose basic language is English, and in the course of the trial a judge might be directing a remark at the counsel and inadvertently use the wrong language for two or three minutes. Nobody is prejudiced by it, but you have a circumstance that could result in the trial being overturned.

I'm going to be cautious. I'm not going to support this amendment the way I see it now.

[Larry Bagnell, Liberal, Yukon, YT]

I have a point of order, Mr. Chair.

[The Chair, Conservative, Art Hanger]

A point of order, Mr. Bagnell.

[Larry Bagnell, Liberal, Yukon, YT]

Although I don't agree with Mr. Lee—we make statutes, that's what we do—I'm going to withdraw this amendment.

[The Chair, Conservative, Art Hanger]

Thank you.

Is there unanimous consent that the amendment be withdrawn?

(Amendment withdrawn)

(Clause 20 as amended agreed to)

[Réal Ménard, Bloc, Hochelaga, QC]

Mr. Chairman, given that it is 10:55, could we adjourn the meeting rather than getting into another debate? We could pass clause 20.

[A voice]

We finished with clause 20.

[The Chair, Conservative, Art Hanger]

We have 10 minutes to go yet.