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.