Justice Committee on June 15th, 2009

[The Chair, Conservative, Ed Fast]

Just as a reminder, Monsieur Ménard, Mr. Randall Richmond didn't appear on this study.

[Réal Ménard, Bloc, Hochelaga, QC]

That was Bill C-14.

[The Chair, Conservative, Ed Fast]

He appeared on the larger organized crime study, and that transcript was not provided to Mr. Burstein. So I don't know if Mr. Burstein is familiar with that piece of evidence.

[Paul Burstein]

In fairness, I'm not. You're quite right.

I was relying on the testimony of the senior Justice officials who have canvassed the views of other prosecutors. Could you find one, two, or ten prosecutors who think their lives might be made easier by the listing process? I'm sure you could, but I think there should be a dispassionate look at it by Justice prosecutors, who are always looking at ways to save money in prosecutions. That is an area of the government's budget on which no one enjoys spending money because it doesn't really produce anything, other than maybe public safety. Prosecutions are a big sinkhole in a big way, so they're always looking to save money.

On your point about why I would say it was constitutionally suspect despite the fact that I was involved in the constitutional challenge to the criminal organization provisions--the new offences--I never thought they would succeed. The courts have been very clear, certainly the Supreme Court, that Parliament can criminalize virtually anything it wants.

I was on the constitutional challenge to the criminalization of marijuana. The case went to the Supreme Court of Canada. The court in that case made it quite clear that it was up to Parliament to decide what should be criminal; however, courts take a much different view about procedural rights. They jealously guard procedural rights. Parliament can make anything into a criminal act, but you can't shortcut how you're going to prove someone committed a criminal act. That's when the courts get very cautious, and that's what you would be doing with this.

I'm just saying you'll be giving the people for whom you want to expedite prosecution the very thing they need to further delay the prosecution. That's what I'm trying to get you to understand.

[The Chair, Conservative, Ed Fast]

Thank you.

Are there any other questions that you'd like ask the witness? No.

Thank you, Mr. Burstein, for appearing. Your testimony has been very helpful.

We'll take a short break.

[The Chair, Conservative, Ed Fast]

We'll reconvene the meeting.

We're pleased to welcome a number of witnesses to assist us with our review of Bill C-232. First of all, I want to welcome our colleague, Monsieur Yvon Godin. Also, we have with us the Fédération des associations de juristes d'expression française de common law inc., represented by Louise Aucoin, who is the president, as well as by Rénald Rémillard, who is the executive director. Then we have two individuals appearing: Michel Doucet, who is a lawyer and full professor at the faculty of law at the University of Moncton, as well as Christian Michaud, a constitutional language rights lawyer with Cox & Palmer.

Welcome to all of you.

Each of you will have five minutes to present, except for Monsieur Godin. Because it's his bill, we're going to give him 10 minutes. Then we'll open the floor up for questions.

Monsieur Godin, would you like to start?

[Yvon Godin, NDP, Acadie—Bathurst, NB]

Thank you, Mr. Chair.

Ladies and gentlemen,

members of the Standing Committee on Justice, bonjour.

If I am here today, it is because the legislation contains a loophole that threatens individual rights in our country. I believe that we have the responsibility as parliamentarians to fix it.

I would like to welcome the witnesses who are here today.

Dear colleagues, you may one day have to appear before the Supreme Court of Canada, or experience the consequences of a decision made by that level if you have not already done so.

Imagine what it means to be a victim of an injustice because you have not been properly understood. Imagine that a judge who is deciding on your fate is unable to get clarifications in a timely manner because the translation or the interpretation has prevented this from happening.

Imagine what happens when judges discuss your future between themselves outside the room, where translation and interpretation services aren't available. Imagine the consequences.

This year is the 40th anniversary of the Official Languages Act and I want, along with you, to protect a fundamental right of all Canadians: the right to a just and fair trial.

In pursuit of that goal, I propose to you Bill C-232, the purpose of which is to ensure that future judges appointed to the Supreme Court understand English and French without the help of an interpreter. The measure will not apply to the present incumbents.

I want to explain to you the reasons for this bill.

First, Canadian laws are not written in one language and then translated: they are written simultaneously in both official languages. No one version takes precedence over the other. In short, this means that the English act and the French act together constitute Canadian legislation, and they cannot be separated.

The Official Languages Act and the Canadian Charter of Rights and Freedoms are designed to preserve the historic achievement. Consequently, in order to understand the subtleties.... I hope I say it right.

[The Chair, Conservative, Ed Fast]

Subtleties.

[Yvon Godin, NDP, Acadie—Bathurst, NB]

Imagine the interpreter trying to interpret me.

[Some hon. members]

Oh, oh!

[Yvon Godin, NDP, Acadie—Bathurst, NB]

In order to understand the subtleties of the law and apply them in full, one must at least understand both official languages.

Thus, it is now clear that language proficiency is essential in order to serve as a judge. We must therefore see to it.

My bill will do nothing to eliminate competent candidates: the contrary is true, since in order to be competent, candidates must be familiar with the law as it stands. If statutes are written without translation, why should we allow a unilingual judge to use a translation in order to understand the law written in a language he or she does not understand?

Who would tolerate having a judge at the highest level whose unilingualism means that he or she is familiar with only half the law and is thus partial?

Judges must be able without the help of an interpreter to understand correctly the parties in the case before them, in order to make decisions that are as impartial and objective as possible. Otherwise, the parties run the risk of suffering significant harm. No one wants their future decided by an ill-informed judge.

It is therefore crucial for Supreme Court judges to understand the law as it stands in its duality in order to protect our rights.

Simultaneous interpretation or translation is not enough: they leave room for interpretation which often tends to stray from the initial meaning.

Moreover, interpretation will not necessarily make it possible to understand all of the content of discussions that took place before the case came before the Supreme Court.

As the Commissioner of Official Languages has so rightly pointed out:

...it seems to me that knowledge of both official languages should be one of the qualifications sought for judges of Canada's highest court. Setting such a standard would prove to all Canadians that the Government of Canada is committed to linguistic duality.

I find it essential that an institution as important as the Supreme Court of Canada not only be composed of judges with exceptional legal skills, but also reflect our values and our Canadian identity as a bijural and bilingual country.

In another connection, under the Official Languages Act, every federal court is required to ensure that the language chosen by the parties in its proceedings is understood by the judge or other officer who hears those proceedings without the assistance of an interpreter. There is one exception: the Supreme Court.

It is not fair that the act applies to such bodies as the Federal Court, the Federal Court of Appeal and the Tax Court of Canada, but not to the Supreme Court.

Why should the Supreme Court be an exception? The law should be the same for everyone. On February 5, 2009, in the CALDECH case, the Supreme Court made a decision stating, among other things, that the federal government has a constitutional obligation to provide the public with services of equal quality in both official languages.

The Commissioner of Official Languages has said it is an important principle that clarifies the scope of the Official Languages Act.

According to this judgment, equality is not to be interpreted narrowly: the government, rather, should consider the nature of the service in question and its purpose when defining its linguistic obligations.

In light of this judgment, Bill C-232 acquires its full meaning and becomes all the more relevant and legitimate.

In Canada, French enjoys equality of status and use with English. No party, therefore, whether francophone or anglophone, should be heard through interpretation or any other means before the highest court in the land.

Let us acknowledge, once and for all, the importance of being understood without the help of interpretation or other means.

The current process for appointing federal judges, including Supreme Court justices, fails to give sufficient consideration to language rights.

The lack of any mechanism for assessing the language proficiency of candidates demonstrates the scant importance attached to this fact when judges are appointed. The right to use a language before a court also includes the right to be understood directly in that language. What is the purpose of the right to express oneself in one's own language, if those addressed do not understand it?

It is important for every party to be heard under conditions that do not place it at a disadvantage in relation to any other party.

In order for Supreme Court decisions to be made in full knowledge of all the facts, and for all Canadians to be entitled to a fair trial, join me in an historic act and show your support for Bill C-232. Let us all work to support this cause.

Without disrupting the existing system, my bill will make it possible in the long term to avoid appointments that are against the spirit of the act and the charter. We shall thus be able to do more to ensure respect for the right to equal status, and the vitality of linguistic communities.

How many seconds do I have left?

[The Chair, Conservative, Ed Fast]

You have two minutes left.

[Yvon Godin, NDP, Acadie—Bathurst, NB]

The other thing I wanted to add just before we start, Mr. Chair, is to point out that you said it would be nice if I had my document to give to the interpreter. I said I didn't have it. And you said you hoped I went slowly so they could understand. Well, that takes away....

At the heart of a debate, when lawyers go before the courts, this type of thing could incapacitate them, cut off their roots. Lawyers are like trees. In this sense, I give them a great deal of credit when they go before the courts.

Many of you here are lawyers, and when you present your case before a court, you want to present your case and argument, and everything else, from your heart. And I don't know how you feel about somebody else interpreting for you. And I don't know how much of my presentation today—with all due respect for our interpreters, who I thank for all the work they do for us.... But we're talking about the highest court of our country, and there's no second chance. You cannot go the UN and ask them to change a decision of the Supreme Court; it's the end, it's over. And it is not a place where we should be able to accept....

So I ask for your support for this bill that I have put together.

This is why I call on your support for this bill.

Thank you.

[The Chair, Conservative, Ed Fast]

Thank you.

We'll move over to Madame Aucoin. Louise, you have five minutes.

[Louise Aucoin, President, Fédération des associations de juristes d'expression française de common law inc.]

Thank you. The Fédération des associations de juristes d'expression française de common law is pleased to be here today.

Allow me to briefly introduce our association. Seven francophone lawyer's associations comprise the FAJEF. Its mandate is to promote and defend the language rights of francophones in minority situations, particularly, but not exclusively, with regard to the administration of justice.

For those who may be wondering whether there are many bilingual or francophone lawyers in Canada, I'd like to point out that there are French-speaking jurists' associations in the four western provinces, in Ontario, in New Brunswick and in Nova Scotia. The seven francophone jurists' associations represent approximately 1,350 francophone jurists.

The FAJEF is also a member of the Fédération des communautés francophones et acadienne du Canada, the FCFA, and it works in close cooperation with the FCFA. In fact, Ms. Diane Côté, responsible for government relations for the FCFA, is here today.

To begin, I would like to state unequivocally that the FAJEF, strongly supports Bill C-232, as does the FCFA, because we believe Supreme Court justices should all be functionally bilingual, for two main reasons.

First, as Mr. Godin stated, as the highest court in the land, the Supreme Court is frequently called upon to interpret French and English-language versions of federal legislation as well as that of a number of provinces and territories in order to determine which version of an act best reflects the legislator's intent. In this context, we believe that bilingualism should not be simply considered an asset but rather an essential skill and mandatory criterion for an appointment to the Supreme Court of Canada.

Second, if the French language is to truly have equal status to English at the Supreme Court of Canada, as it should, in fact, francophone individuals subject to trial should be heard and understood without interpretation, as is the case for anglophones today. We should have no double standards, especially not before the highest court in Canada.

We certainly do not believe it is unrealistic to demand that only bilingual justices sit on the Supreme Court of Canada, especially given that there currently are already eight bilingual judges out of nine. Not much would be required for all nine justices to be bilingual.

We believe this to be realistic, because even in provinces that are largely anglophone, for instance in western Canada and the Territories, more and more judges' panels have the capacity to hear French cases, without interpretation, at the appeal court level.

Over the last two years, a number of cases were heard without interpretation: the Halotier case, before the Yukon Court of Appeal; the Rémillard case before the Manitoba Court of Appeal; FFT versus NWT; the Caron case. These are all French cases which proceeded without interpretation.

So, if francophones can be heard in French without interpretation before courts of appeal in mainly anglophone provinces and territories like in Alberta, Manitoba, the Yukon and the Northwest Territories, why would that not be possible before the Supreme Court of Canada?

In closing, in Canada, regional representation is viewed as an essential criterion—regional representation is considered important—in the appointment of justices to the Supreme Court of Canada. So, we have three justices from Quebec, three from Ontario, one from the Maritime provinces and two from the western provinces.

No one is calling this criterion into question. It is a limitation, in a way. However, we believe that when it comes to language rights and the status of French and English within the Canadian legal system, the criterion of mandatory bilingualism for justices on the Supreme Court of Canada is just as important if not more so than that of regional representation. In essence, they are the very cornerstones of the Canadian federal pact.

I believe we can say that the world has changed a great deal since the Official Languages Act was drafted. Over the last 40 years, we've seen significant progress in the area of language rights. I believe the next step would be to support Mr. Godin's bill to make bilingualism a mandatory requirement for Supreme Court justices.

Thank you.

[The Chair, Conservative, Ed Fast]

Thank you.

We'll move on to Monsieur Doucet for five minutes.

[Michel Doucet, Full Professor and Lawyer , Faculty of Law, University of Moncton, As an Individual]

Thank you, Mr. Chairman.

I'd like to start by thanking you for having invited me to testify before your committee. I've had an opportunity to appear before the Standing Committee on Official Languages on a number of occasions. In fact, I attended approximately one year ago, when the issue of bilingualism for Supreme Court justices was addressed and when Mr. Godin's idea to introduce a bill first took shape. At that point, the issue was discussed in depth before the committee.

I appear today as an individual. I am not a member of any organization and represent none. I have been a professor of law for the last 26 years. I've taught language rights for a number of years and I've written a great deal on the matter. Moreover, I have a very busy law practice. I have had the opportunity to appear before the Supreme Court on at least seven occasions. I've also gone before a number of tribunals. I believe that my specific experience in the courts has enabled me to see to what extent it is important for judges to be able to directly understand the submissions made by the various parties.

Mr. Godin referred to the work of interpreters, and I would say that I have the greatest of respect for interpreters. Within a difficult context, namely the Canadian Parliament, this essential work gives members not only the ability to express themselves in the official language of their choice, but also to be understood. However, I would be remiss not to add that I have reservations when it comes to the courts. Except under exceptional circumstances, simultaneous or consecutive interpretation should not take place, regardless of how skilled the interpreters may be. I have been a practising litigator for 30 years, and over this period, I've had an opportunity to appear before courts at all levels, sometimes with interpreters. I must admit it has always been very difficult for counsel to argue cases when judges do not understand them directly in their own language.

In fact the federal legislator and the New Brunswick legislator have understood the problem posed by interpretation in a legal context. Both amended their legislation on official languages to compel judges on courts and quasi-judicial tribunals to hear directly, without interpretation, the proceedings they presided over. Earlier on, Mr. Godin referred to federal courts. In New Brunswick judicial and quasi-judicial courts and tribunals must have a direct understanding of the individual's language. At the federal level the only exception is the Supreme Court. As I stated earlier, I've had to appear on a number of occasions before this court. Each time, my submissions were in French, and each time, a number of judges were unable to understand my submissions without interpretation.

As I've explained, and the interpreter will certainly remind me of this today, I tend to speak quickly. In the week after I had argued a case before the Supreme Court, I had an opportunity to hear the English version of my arguments on CPAC, and I understood why I had lost the case five to four. The translation did not allow me to understand my own words. I wonder how justices can fully understand the matter at hand when they have to go through translation in which significant aspects of a submission are missing. When you win 9:0, there is no problem, but when you lose 5 to 4, you automatically wonder whether you should not have argued in English.

If all unilingual anglophone lawyers in Canada had to argue their cases before one or two unilingual francophone justices on the Supreme Court and therefore have to go through interpretation, I am sure that Mr. Godin's amendment would have been passed long ago.

I support this amendment for a number of reasons. In Canada, where legislation is in English and in French, the Supreme Court itself as always found that in order to interpret a federal legislative provision, both versions of an act had to be considered.

How can both versions, French and English, be taken into account by someone who is not able to understand one of the two versions? Besides, you can refer to the R. v. Mac decision in 2002. Also, you can consult the book by Pierre-André Côté, Interprétation des lois, where he tells us that in order to interpret bilingual legislation, the meaning that is common to both versions must be found in the first place. Thus, being bilingual is an issue of competence in Supreme Court. It is not a superfluous issue. It is a part of the qualifications inherently required from anyone who seeks access to the highest court in the land.

In conclusion, when we were studying Mr. Godin's amendment, some of us might have wondered whether we should also amend section 16 of the Official Languages Act, which makes an exception for the Supreme Court.

I must say that I have thought this over. My answer is no, I see no contradiction between Mr. Godin's proposal and section 16 of the Official Languages Act.

Thank you.

[The Chair, Conservative, Ed Fast]

Thank you.

We'll move on to Christian Michaud. You have five minutes.

[Christian E. Michaud, Constitutional Language Rights Lawyer, Partner, Cox & Palmer , As an Individual]

Thank you, Mr. Chair.

I thank the honourable members of the committee for inviting me here today.

I am a lawyer in private practice with the Cox & Palmer law firm. I have practised law for 12 years. I personally had an opportunity to plead a case in the Supreme Court of Canada, in the Arsenault-Cameron affair in 1998.

I fully share the impressions and the testimony from Mr. Doucet regarding translation and especially regarding the defects that can arise in translation and simultaneous interpretation at the Supreme Court of Canada, particularly in cases that seek to interpret constitutional and quasi-constitutional principles in legal documents, in legislative documents or even more so, constitutional legislation as such, namely the Canadian Charter of Rights and Freedoms.

As for a judge's capability to properly carry out his duties in this position, I entirely agree with Mr. Doucet inasmuch as the issue of a judge's bilingualism, in these conditions, is not a merely political issue that only deserves lip service, but it is an issue of capability and competence so that a judge can fully carry out the duties of his position.

I have prepared a text, and I'm switching over to English because I want everyone present to be able to ask me questions in whatever official language they choose.

That brings me to the next topic, official languages.

The issue we are faced with today, of ensuring that all the justices of Canada's Supreme Court can understand the people who are under the court's jurisdiction, without any help from an interpreter, in either of the two official languages, is in fact a constitutional commitment made by this government and by this Parliament along with the other Canadian provinces. It was made when these provisions were included in section 16 of the Canadian Charter of Rights and Freedoms in 1982, making both official languages equal in status and equal in law.

This has to do with the equality of both official languages but, moreover, it also has to do with the equality between both official language communities that use these official languages.

I will not present the entirety of the text that was submitted, because it is fairly technical. However, as you read it, you will see that language rights have evolved to some extent. During the initial years, some adaptations had to be made. Naturally, the legislator, who had made a constitutional commitment,

that had taken formal undertakings to protect the two languages in this country, that there was a necessity to have a certain evolution over time in order to ensure true equality.... That, obviously, spilled over to the Supreme Court of Canada, starting with one of the cases, the SANB case in 1986. There were a number of cases at that time that interpreted language rights, and at that point in time, unfortunately, language rights were interpreted differently from other fundamental rights stemming from the charter. That time of having a limited interpretation of language right, or what the court called the restrictive interpretation, was based on the fact that the court felt that language rights were a political compromise; therefore, the same type of beneficial interpretation that could come out from the courts should not apply to language rights. The court said it's basically up to Parliament, it's up to the legislator, to take the necessary steps to protect those rights by formal means.

So when the Supreme Court of Canada was faced with a situation back in 1986--in that case it was subsection 19(2) of the charter, which applied to New Brunswick, on whether or not that encompassed the obligation for the judges to be able not only to have parties appear in front of them in their official language of choice, but also to be able to comprehend without the aid of an interpreter--the issue, unfortunately, was interpreted very restrictively. You will note that in that decision, which is referenced in my text, there is a strong dissidence coming from two judges, Justice Dickson and Justice Wilson. I submit that the interpretations stemming from those judges are now the case law today, starting with the Renvoi relatif à la sécession du Québec, the Quebec secession case, in 1998, supported by Beaulac back in 1999, and then the Arsenault-Cameron case, which I had the pleasure of arguing in 2000, which confirmed that language rights are no different from other types of rights. They're different in nature, but they don't have any different application, and therefore the courts would give it a very wide, generous interpretation, with the ultimate objective of protecting the communities that are related to such official languages.

That is the ultimate objective here: making sure that in Canada the two official linguistic communities are able to be treated equally by the institution of this Parliament, by the institution, namely, in the federal court system. That is the ultimate objective.

So I'm looking forward to answering your questions.

[The Chair, Conservative, Ed Fast]

Thank you so much.

Thank you to all of you for staying within your time. It's much appreciated.

We'll start with Mr. Murphy. You have seven minutes.

[Brian Murphy, Liberal, Moncton—Riverview—Dieppe, NB]

Thank you, Mr. Chair.

First, I want to thank all the witnesses: Mr. Michaud, Mr. Doucet, Mr. Godin, MP, Ms. Aucoin and Mr. Rémillard.

Congratulations, Mr. Godin! This is a good step forward. I support this bill. However, in Canada, it remains a legal issue, an issue of human rights and language rights.

I would like to explain to the people who are not yet convinced of this that it is an issue of human rights,

how important it is to look at this in this way. Would you accept that a judge of music could be deaf? Would you accept that a judge in a painting exhibit could be blind? This is the opposition to this bill. The opposition to this bill are saying that there may be some judges from some parts of Canada who don't have the same background of being trained bilingually, knowing the languages well, who may be excluded in the process of selection from becoming Supreme Court judges. That is where this opposition is coming from. And that's not the right way to look at this. The way to look at it is this.

As Mr. Michaud already said, when he was a lawyer pleading before Canada's Supreme Court, one or two of the judges did not understand him—it all depends.

I went to the Supreme Court of Canada for a client--and every case at the Supreme Court of Canada is important, let's not kid ourselves--and I was not understood. I was not understood by a judge or two judges. We have to put our parochial beliefs that some judges will be excluded behind the idea that the right to be understood has to be protected.

With that in mind,

the only question I have for the lawyers is this: is it perfectly clear, after the three cases that Mr. Michaud mentioned, that according to Canadian law, in court, before a judge or when dealing with legal cases, we have the right to be understood, and not only to be heard?

Do we have the right before judges to be understood and not just heard?

I'll start in any order you want.

Time is running short.

We know your points of view very well.

[Michel Doucet]

The Supreme Court of Canada, in the case of the Société des Acadiens et Acadiennes du Nouveau-Brunswick, had decided that a party could use the language of its choice, but that the judge was not obliged to hear it in that language. This decision has never been overturned. The interpretation principles underlying this decision were overturned in the Beaulac affair, but the issue of bilingualism for justices never came back before a court since then, and this was for a very simple reason: the Official Languages Act at the federal level and the Official Languages Act in New Brunswick were amended to recognize the right to be heard directly by a judge who understands without help from interpretation.

According to the new principles governing interpretation, if this issue was raised again before the Supreme Court, I would be ready to bet my shirt and my tie that the Supreme Court would overturn the decision made in the case of the Société des Acadiens et Acadiennes du Nouveau-Brunswick.

[Christian E. Michaud]

I fully support what Mr. Doucet just said. Let me add that the problem with the SAANB decision had to do with the reasons for the decision that made a restrictive interpretation of subsection 19(2) of the Canadian Charter of Rights and Freedoms. When we look at this more closely, it truly seems to be devoid of any sense, because the Supreme Court, at the time, seemed to be saying that official languages basically had the same value as other languages. Here, we must note that the right to be heard—not necessarily the right to be understood—is a right that also exists in section 14 of the Canadian Charter of Rights and Freedoms when dealing with certain court procedures. Thus, the legislator, or Parliament, saw it fitting to give, for principles of what we call natural justice or fundamental justice, to every person under the court's jurisdiction the right to be heard. Therefore, this applies to all languages. However, when we are dealing with official languages, it is more than an issue of fundamental justice. Besides, this is what I wanted to say earlier, with regard to different kinds of rights.

There is a fundamental difference between official language rights and other fundamental rights that exist. So to answer Mr. Murphy's question as to whether or not today the right enshrined in the charter that anyone appearing in front of the Supreme Court, or any court for that matter, has the right to be heard in his or her official language of choice encompasses the right to be understood, I would submit that in fact it does include the right to be understood; otherwise, there is no value whatsoever to section 19 of the charter, because you already have section 14, and the charter cannot contradict itself and cannot speak for no reason. That, in my mind, is the state of law if it should appear in front of the court again.

[The Chair, Conservative, Ed Fast]

Monsieur D'Amours, you have one minute.

[Jean-Claude D'Amours, Liberal, Madawaska—Restigouche, NB]

Thank you, Mr. Chair.

I will make a brief comment and you will have the opportunity to reply. I want to discuss what was discussed earlier today regarding the so-called lower courts, like the Tax Court of Canada and others. Let us face the facts, is it not ironic that lower courts are under the obligation of extending the service in our language, whereas the Supreme Court, the court that will make the final decision and decide on the individual's future, is not under this obligation? This is somewhat ironic. The reverse situation would perhaps make more sense. Do you not find that the current situation is ironic?