Justice Committee on June 17th, 2009

[John Major]

It's a very common reaction, particularly at the Supreme Court, whether the lawyer is French-speaking or English-speaking. If it's their first appearance, they're generally nervous. When a person is nervous, they frequently speak a lot faster than they intend to. It would happen very frequently that you would ask the lawyer to slow down. We use the excuse that the translators need time to translate, or the clerk needs time, to try to relax them. Sometimes they hyperventilate. We call an adjournment and let them get a drink of water.

Your first trip to the Supreme Court is a very trying experience, so French or English makes no difference. People will frequently start to speak so rapidly, and there are usually more English provinces' cases just by virtue of the number, so it's more frequent that the advice is given to an English-speaking lawyer.

[Brian Storseth, Conservative, Westlock—St. Paul, AB]

Is it your experience that this hasn't hurt their opportunities in front of the court?

[John Major]

I should tell you that the oral hearing is the last step in the appeal. Before the appeal is heard, you get the written arguments. You get the judgments from the two courts below. You read that material. You read the argument. You know the case pretty well before you go in. In the hour that the lawyer has, he should pick his strongest point and argue it. But the judges don't learn much about the case in the courtroom. They should know about the case before they get in the courtroom. That's usually the way it is: you do know the case before you get in.

Now, cases don't always go the way you think they might, because a lawyer raises a new point, or a judge raises a point, there's an argument around it, and people change their minds, but in 95% of the cases that does not happen.

[Brian Storseth, Conservative, Westlock—St. Paul, AB]

One thing that has been brought up and said time and time again is that eight of the nine current justices are functionally bilingual. This is where the opposition kind of contradicts themselves, because we've heard witnesses come before us and say that these legal proceedings are tremendously technical and that being in any way functionally bilingual would not be enough or wouldn't replace the ability of a translator who has a Ph.D. in translation, who would be far more competent in relaying what they're actually trying to say through their oral argument, rather than their being functionally bilingual.

Would you have any experience of this being the case, where even some Supreme Court justices who are functionally bilingual still rely on the translation?

[John Major]

I think it happens quite frequently, because if you're not that sure of yourself, you get reassurance from listening to the translator. You may get it right, but that's a backup for you.

As for being functionally bilingual, I take it more as being conversational. Legal arguments are not conversational. They're quite different, as you know, so the translation acts as a backup. I don't think being functionally bilingual would be a great deal of help. Being completely bilingual is a different thing. Completely bilingual in both languages--well, that's a requirement that certainly would elevate the court if you had competency and bilingual ability both.

[Brian Storseth, Conservative, Westlock—St. Paul, AB]

I think you make a great point there. I'd also like to make one other point, that we do have other bilingual countries in the world that have final courts of appeal, countries like Belgium, and they all rely on translators and allow for unilingual judges in those.

[John Major]

UNESCO relies on translation. War Crimes relies on translation. I mean, those are different circumstances, but as I said in the few opening remarks, the United Nations relies on translations. Translators are not a dime a dozen. A skilled translator is a very skilled person.

[Brian Storseth, Conservative, Westlock—St. Paul, AB]

I would just ask one final question of you, Justice Major. In your 14 years on the Supreme Court, did you have problems with the translation? Did you ever have any doubts with the translation as to whether or not they were giving you an accurate definition of the argument that was before you?

[John Major]

No. And following the case, we always had a conference immediately. If anything like that had happened, it just would have been so apparent.

[Brian Storseth, Conservative, Westlock—St. Paul, AB]

Thank you very much for your time.

[The Chair, Conservative, Ed Fast]

Thank you.

We'll go to the next round.

Monsieur Lemay, you have five minutes.

[Marc Lemay, Bloc, Abitibi—Témiscamingue, QC]

Good afternoon, Your Honour.

Let me to share my personal experience. I went to the Supreme Court of Canada. I was not presenting arguments but I was accompanying a colleague who was presenting arguments under the Young Offenders Act.

I am certain that what you answered earlier to Mr. Storseth's first question was perfectly valid but I simply want you to know how a lawyer feels when they go to the Supreme Court of Canada. It's not every day that one goes to the Supreme Court of Canada and when you do go, it's because you are pleading a very important case.

For my point of view, it's not only being heard that is important, it is being understood. From that perspective, I have some difficulty with respect to judges who cannot follow what is being said in French, for example. It could be during exchanges with Justice Lamer or any other attending judge. You know how these things work because you have considerable experience, which I don't deny. It's about what is important for us.

The reality is often different. Our clients wonder why the judge does not understand what is being said, why they need interpretation, when we've always presented our arguments in courts where it was possible to present them before perfectly bilingual judges.

You understand that it is important for many groups to have the feeling that they're being heard and understood. Being heard is different from being understood. The distinction is important to us. Judges on the Supreme Court of Canada, the highest court, must be able to understand us in the French language, the language we express ourselves in, whether the case is being heard at the first, second or highest level.

[John Major]

Well, all I can say is that I felt completely comfortable relying on the translator.

I'm here to answer questions, not to ask them, but I'd like you to think of a client you might have had where you asked them, “Look, we have our choice of judges, A and B. Judge A speaks both languages pretty well, but he's not as good a judge as Judge B. If you go with Judge B, you're going to have to rely on the translator. Which judge will you take?”

[Marc Lemay, Bloc, Abitibi—Témiscamingue, QC]

With all due respect, Your Honour, that is not what I meant by my question.

I have a few years of experience. Of course I do not deny your own experience. However I think that when a judge is appointed to the Supreme Court of Canada—I'm thinking of Justice Lebel, for example, and all the judges who are there—they are appointed because they are very competent. I do not know any judges who have been appointed to the Supreme Court of Canada who are not competent. Perhaps you know some, but I personally could not know of any as I have only being there once. Even though I am aware of all the rulings.

Competency is the first criteria. That is true. But on top of that requirement, we're also asking to be understood by the judges who listen to us. Furthermore, the issue is not the same for my client. My client has no choice. Perhaps the situation is different in the lower courts. However, at the Supreme Court of Canada, everyone is competent, I think, with no exception. I therefore think that the ability to speak the French language or to understand the French language is a requirement that should be included.

[John Major]

You're free to have your opinion, obviously. I come back to my opinion that competency overrides every other consideration.

He wants my opinion, and I can't do better than that.

[Marc Lemay, Bloc, Abitibi—Témiscamingue, QC]

I respect that. Thank you.

[The Chair, Conservative, Ed Fast]

Mr. Moore, I'll give you five minutes.

[Rob Moore, Conservative, Fundy Royal, NB]

Thank you, Chair.

Thank you, Justice Major, for your appearance here today. We do appreciate your appearing here as a witness.

A couple of the points you did make really stood out to me. First, there is no question of the right of a litigant to be heard in their own official language. Also, you made the point about the translation obviously being probably very good at the Supreme Court of Canada. On the point about competency being the overriding goal, as a government, when we make our selections for the Supreme Court, I happen to agree with you that competency must be the overriding goal.

A point was made that at some point in a person's life they would decide that when they grew up they would want to be a Supreme Court of Canada judge, and then they would begin taking lessons in order to make themselves bilingual no matter where they were from in the country. I don't see that as realistic in any way. I don't think that's how most people's lives or careers unfold.

I wonder if you could comment on that. I know there is no typical path to the court, but maybe you could comment on why that would be an unrealistic premise.

[John Major]

If you had somebody who had that ambition, he might live in an area where it was impossible to learn the other language. If you're in Prince George, off the top of my head, and you're 12 years old, I don't know that you can learn French. I don't know what the situation is in the Saguenay if you want to learn English.

Not everybody has an equal opportunity to learn both languages from the time they begin school. I have a personal opinion that the judges' training, where they become mildly familiar with the other language, does not elevate that much beyond conversation. I know a lot of judges who went to study French and judges who went to study English. They get some knowledge of the language, but if you take a 55-year-old and try to teach him a new language so that he or she is bilingual, I think that's a very daunting task and an unusual 55-year-old who could learn it.

[The Chair, Conservative, Ed Fast]

Please continue, Mr. Moore.

[Rob Moore, Conservative, Fundy Royal, NB]

I guess that brings me to my second question. Could you possibly comment on new Canadians? Obviously, Canada is a place where we welcome new Canadians, we welcome them into every aspect of Canadian life. What about someone who has perhaps come from another Commonwealth country, where they obviously don't have the same opportunities to learn both of our languages? Or what about someone who may have English or French as a second language, but had no realistic prospect, growing up, of learning both of Canada's official languages? We have to remember that both English and French are official languages in our country.

How limiting would this be to someone in that scenario? And what message would it send to someone from another country who wants to become a Canadian about their ability to participate?

[John Major]

The French language and English language are the official languages, but you have interpreters. If someone comes from Asia or Eastern Europe and they don't speak English, the trial does not proceed unless there's an interpreter. The interpreter interprets. That's true through all the courts. It's most important, however, at the trial court, where the evidence is presented and he may want to testify and so on and so forth.

When you get to appeal courts, you're generally dealing with some question of law. Frequently, the accused person or the parties to the lawsuit don't bother to show up. The lawyers are there, but not the parties.

There's nobody in a Canadian court who stands trial and who is not entitled to an interpreter.

[Rob Moore, Conservative, Fundy Royal, NB]

You mentioned that Justice Lamer is bilingual. For those who are watching or listening, what level of competency in both languages...? There is what we think of as being bilingual, and that would be the ability to talk to someone in both official languages. But what level of competency would someone have to have--in the pool that we select from to be appointed to the Supreme Court of Canada--to never avail themselves of the use of translation services?

[John Major]

My wife is completely bilingual. French is her first language. When I consider her French compared to that of some of our friends, which is sufficient to meet this test, there's a huge difference. I'm sure my friends here whose first language is French would find the same thing.

Conversational bilingualism is inadequate to hear a court proceeding. I spoke of Justice Lamer. Lamer was one of the few judges who was completely bilingual. Someone who's living is Charles Gonthier. He was also able to write competently and fluently in English and French. He could understand the nuances of the language in both languages. He was truly bilingual, and he was competent. It's not impossible for people to be gifted in languages and competent in law. All I'm saying is that when you take all the straw away and you come down to the one question of whether it is competency or the ability to get along without a translator, I'd say the test has to be competency. The marginal benefit of being familiar enough with the other language so as to carry on a conversation but being unable to write or read fluently in French or English—I don't see that as being much above the translation.

[The Chair, Conservative, Ed Fast]

Thank you.

Before we let you go, I have a couple of quick questions. In your 14 years of service on the bench of the Supreme Court of Canada, how many complaints did you actually receive about the translation services that were available? I'm not talking about people who may have been dissatisfied with the result, but were there any specific complaints about the level or quality of the translation that was available in those proceedings?