Justice Committee on June 15th, 2009

[Christian E. Michaud]

This is one of the themes I deal with in my presentation.

In fact, there is no question in my mind that the highest court of this country should lead by example. I'm not putting the blame on the highest court; I'm simply saying that the way the law is drafted is sort of contradictory, especially in light of the concept of institutional bilingualism,

what is called in French "le bilinguisme institutionnel".

It's a concept that the Supreme Court itself developed in Beaulac in 1999 to confirm that the institutions, namely the administration of justice--the courts--have the onus of making sure they are institutionally bilingual to protect the rights of the constituents, to protect the rights of the people appearing in front of them, and not the other way around. We're not the ones who should support that burden; it is the court's burden.

To answer your question, I do agree that it is, in a sense, sort of contradictory that the current laws that apply at the Supreme Court of Canada do not allow that court to lead by example by making sure that it is also purely constitutionally bilingual, institutionally bilingual, as the Supreme Court enunciated in Beaulac.

[The Chair, Conservative, Ed Fast]

Thank you.

Monsieur Ménard.

[Réal Ménard, Bloc, Hochelaga, QC]

Thank you, Mr. Chair.

First I want to say to you, Mr. Godin and all of you here today, that you can count on unwavering support from the Bloc Québécois in this battle that you are so honourably waging.

Language is a question of identity. The reason why I think that your bill must be supported and that it should have seen the light of day two or three decades ago, or even when the Supreme Court was established, is that it is not true that one can learn a language late in life. A justice in the Supreme Court is under extraordinary pressure, you can imagine that.

I do not think that if we do not send out a signal very soon saying that all those who aspire to careers as judges, right up to the highest echelons, must know French...

I was present at that committee—Mr. Comartin was there too as well as other members from the party in power, I believe—when we questioned Mr. Rothstein, whose expertise in the legal matters cannot be challenged. He did not know French. I asked him a question as a francophone who is interested in these issues. Even if the Supreme Court does not hear as many civil law causes as it hears common law cases, it seemed inconceivable to me that someone could be a Supreme Court justice and not know French. Therefore, I asked him if he would take on the obligation of learning French. He said that he would. Without questioning his good faith and without dragging him before the Supreme Court for perjury or for misleading information, I would be curious to know, at this time, how far he has gotten with carrying out this obligation to be fluent in French.

The merit of Mr. Godin's bill is that we must—and I hope that all the parties in the House will support it—in law faculties next year, let it be known that anyone who wants to become a justice in the higher courts, must be fluent in both languages, and know French.

It is an absolute illusion to think that if this obligation is not enshrined in law, large numbers of legal professionals will recognize that they have such an obligation.

You have our unflinching support. In life, there are times when we need to convince and there are times when we need to constrain. Your bill must be a constraining bill? I would be very disappointed if the House did not support you unanimously, for as a francophone, you have a right to expect that.

And let me ask, Mr. Godin or any other person who would like to answer, what are the arguments of those who oppose your bill. I cannot imagine that this House will not be unanimous on a bill like this one.

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

Among other arguments that we hear, there is the fact that some people get eliminated. This means that a unilingual person could not be appointed to the Supreme Court. I do not think that we can find a single unilingual francophone appointed to the Supreme Court of Canada since it began to exist.

This is my argument: the Supreme Court, which is a court of justice, was not created so that judges can be appointed, it was created for the purpose of rendering justice to citizens.

Thirty-three million people live in Canada, how many lawyers and judges have we in Canada? Can we not find among them nine judges who speak both official languages? If our government is sincere with regard to respecting both official languages and recognizing them in every part of our country, how could it fail to find nine persons who are capable of functioning in both languages?

And I would like to add the following:

At the official languages committee, the University of Toronto said they support it, and as soon as it passes, they will tell lawyers who want to be judges and start training them in the other language. But they say they don't have to do it because they don't have to have it.

This shows that society is already preparing for that. Academic institutions say that they will be ready, as soon as the legislation comes into force, to offer language training. The next appointment will be made in some four or five years. Just think of all the time that we have to get prepared! My bill clearly shows that this is not a thing of the past; it has to do with the future and with future appointments.

Moreover, the Supreme Court was established in order to provide justice to Canadians, and not simply for appointing judges.

[Réal Ménard, Bloc, Hochelaga, QC]

Do I have time to put a brief question, Mr. Chair?

[The Chair, Conservative, Ed Fast]

Yes.

[Réal Ménard, Bloc, Hochelaga, QC]

Could one of you who pleaded before the Supreme Court, perhaps tell us, with all due respect for Justice Rothstein, if we have any information saying that he has learned French? Does anyone know?

[Michel Doucet]

I would not want to judge Justice Rothstein in any way, but I believe that he is still using translation. I do not know whether he has learned French. Learning French for use in a social setting is one thing, but learning French so as to be able to hear court cases is something else.

I speak a little bit of Spanish, but I could not hear a court case in Spanish. However, if I wanted to be appointed to the Court of Appeals in Madrid, I would make sure that I could speak Spanish. We are told that court appointments are often made on the basis of competence. In my opinion, in a Canadian setting, with the legislation that we have and with our interpretation of bilingual legislation, to be competent to sit as a justice of the Supreme Court one must understand both languages.

If we tell the people that those are the requirements, I am confident that my colleagues, the anglophone lawyers who practise in various Canadian provinces will get organized, if they have an ambition to be appointed to the Supreme Court, so that they learn both languages. I am sure that Julie Payette, before becoming an astronaut, had decided to use all the means that would help her to get there. The same applies to anyone who wants to be appointed to the Supreme Court.

[Christian E. Michaud]

Mr. Chair, let me raise a brief point of information which, I think, is relevant and is in agreement with what Mr. Ménard was saying.

I am not speaking on behalf of the Canadian Bar Association, but this is just a point of information. Last year we succeeded in adopting a provision at the Canadian Bar Association, which is the association that all lawyers belong to across Canada. We succeeded in including in our professional code of ethics a provision whereby from here on in, lawyers, even in private practice—we are not talking about government institutions—are obliged to respect the official language of their client, especially if the client has rights that he can exercise before the court. Therefore, things have evolved enormously at the private level. I think that the message is out and that henceforth both official languages are equal in status and in law, as regards future justices or lawyers who want to become judges. By including this provision in its code, the CBA has recognized the need and the importance of respecting the language of choice of those under the court's jurisdiction.

[The Chair, Conservative, Ed Fast]

Thank you. Maybe in a follow-up response to another question....

Mr. Comartin.

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

Thank you, Mr. Chair.

I thank our witnesses, but more specifically Mr. Godin, who is my party's whip.

[An hon. member]

It is in your interest to support him!

[Some hon. members]

Oh oh!

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

Ms. Aucoin, can the organizations that train lawyers and young judges in all provinces give them the opportunity to learn the other official language?

[Louise Aucoin]

I would like to make a comment on the facility that judges have for learning French. Afterward, I will come back to your question. I think that this will help find an answer to your question.

In the west of Canada, there are about 15 bilingual judges who have heard cases entirely in French. I think that most of these judges learned French after becoming judges. Thus, when judges are at lower levels such as Superior Court or the Court of Appeals, they have the opportunity to take French courses. Many of them are very intelligent and learn other languages very easily. We know that quite a few lawyers are very gifted in this regard. These people learned French after becoming judges. Therefore, possibilities certainly exist.

How about the situation in our schools? Together with Mr. Doucet, I teach at the University of Moncton, in the Faculty of Law. We have many young anglophones who went through the immersion system and who are very competent in both official languages. I think that our bilingualism has become an important Canadian value. Ambitious people who want to succeed believe that it is crucial for them or for their children to learn both languages.

Thus we see that there are services and that things are getting easier as compared to 40 years ago for those who want to obtain services and learn both official languages.

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

Michel.

[Michel Doucet]

I just finished a two-week long trial in Edmonton, Alberta, before Madam Justice Eidsvik from Calgary, with an anglophone crown prosecutor also from Edmonton. Everything was done in French for two weeks. The Caron case was a very technical trial and there was no problem. Things worked out very well. I think that we could not have done the same thing in Edmonton 10 or 15 years ago.

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

Ms. Aucoin and professor Doucet, judges are not responsible for such services. They already exist.

[Louise Aucoin]

They can ask for them quite easily.

[Rénald Rémillard, Executive Director, Fédération des associations de juristes d'expression française de common law inc.]

Exactly. Some judges decide to take French courses. I know some who constantly listen to their radio when they commute between work and home, so as to practise their French. Training is available, but some very highly-motivated unilingual judges have become sufficiently bilingual.

Besides, I put a question on the training of judges to a chief justice whom I will not mention by name. He told me that he knew judges who had been unilingual at the outset and that can now hear trials without using interpretation. We see that more and more judges are doing this. It needs determination and effort, but the system is working.

If we look a bit lower down in the system, toward the future... In associations of legal professionals, especially in the west of Canada, we note that there are more and more anglophone members who have learned French, who have attended immersion courses and who absolutely want to maintain their level of French. The same thing with law faculties. About two years ago, the University of Manitoba told us that it was intending to offer law courses in French because the students want to take part in contests like the Laskin Moot and because some of them who had gone to immersion courses wanted to maintain their French. Law faculties are beginning to think in these terms. This was not the case 20 or 25 years ago, but it is coming along very quickly. We can see the change.

We mentioned some cases that were heard in French by courts of appeal and by panels of judges in the west of Canada during the two or three past years. Most of these judges were anglophone, but bilingual. Twenty-five years ago, no one believed that this could be done. Things have evolved a great deal and we must now go on to the next phase.

[The Chair, Conservative, Ed Fast]

Monsieur Petit.

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

Mr. Chair, Madam Aucoin wanted to add one more point.

[The Chair, Conservative, Ed Fast]

Unfortunately, we're really running out of time, because we have 10 minutes yet for in camera.

Monsieur Petit, you'll only have a short question.

[Daniel Petit, Conservative, Charlesbourg—Haute-Saint-Charles, QC]

Thank you, Mr. Chair.

I thank you all for being here.

This is a problem that concerns me. I am a lawyer in Quebec and I studied at Laval University. Our attention has been drawn to the matter of the appointment of bilingual judges to the Supreme Court. We are discussing the matter and following the situation closely.

I also sit with Mr. Godin and Mr. D'Amours on the Official Languages Committee where these problems are discussed every day. Mr. Doucet has long experience with our committee; I have already questioned him several times. Mr. Michaud, this is the first time I see you. Ms. Aucoin, this is not the first time that I meet with you.

My comments are addressed to Ms. Aucoin and Mr. Michaud. You read the bill. It is very brief, consisting of only about three lines. The new subsection 5(2) concludes as follows: "who understands French and English without the assistance of an interpreter". Are we talking about oral expression, oral comprehension or written comprehension? Given that they are judges, they receive written procedures, pleas and briefs. They have the right to hear witnesses, as well as the lawyers who come before them. After having read this bill, do you think that it has to do with oral comprehension or written comprehension?

How would you describe this degree of bilingualism? This is the first time that something like this has appeared in this kind of legislation. I am affected by this, as are my colleagues. This is a very important matter for us.

[Louise Aucoin]

I think that we are clearly not ready to hold tests to evaluate the language skills of the justices of the Supreme Court of Canada. On the other hand, I believe that naturally, when a person understands French and English without help from an interpreter, it is a case of functional bilingualism. This involves both oral and written comprehension.