Justice Committee on June 17th, 2009

[Réal Ménard, Bloc, Hochelaga, QC]

I am not sure what leads you to think that the majority of lawyers would not agree with the requirement under this bill. I would like you to tell me what you base your statement on.

Furthermore, I will say again with all due respect, that I refuse to support your logic, which I think is flawed. You can't disconnect knowledge and bilingualism. Competency can be strengthened and increased by bilingualism. I refuse to think that it has to be a choice. How many bilingual judges currently sit on the Supreme Court? We've been told there are 8 bilingual judges. With the exception of Judge Rothstein, the other judges are bilingual. There is no disassociation. We don't have to choose between bilingualism and competency. We have to send a message to all lawyers in training that competency includes bilingualism. There is no disconnect between the two.

[John Major]

First of all, you ask the lawyers this question: do you want the most competent judge, or do you want the most competent judge with some knowledge of the other language?

It is incorrect to say you have eight bilingual judges in the Supreme Court at the moment. You have eight judges who probably meet the requirement of the amendment, in that they have some knowledge of the other language, but to me--and I speak from the knowledge of my own spouse and members of the family--being able to converse is not being bilingual. Being bilingual, understanding the other language fully, is quite a chore. You can have somebody who has a very acute legal mind but is not very good at languages.

I'm just repeating that if the test is the most competent versus the most competent who is somewhat bilingual, my own opinion is that I want the most competent judge. It's same as surgery: I want the best doctor; I don't want the linguist.

[The Chair, Conservative, Ed Fast]

We'll move on to Mr. Comartin. You have seven minutes.

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

Thank you, Mr. Chair. Thank you, Justice Major, for being here.

I don't want this to seem offensive, but I've sat--

[John Major]

I don't think you have to worry about offending me.

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

Okay. Thank you. That's actually what I'm getting at.

I've sat through the last four appointments to the Supreme Court. They all employed different methodologies, but I certainly got a real sense of not only the ultimate candidates but of all the candidates who were eligible. Because that's all confidential, I cannot go into any more detail than that, but I can say to you, Justice Major, that in all those cases they were in fact solid candidates who were fluently bilingual. I will add that if they were coming from the appeal level, they had conducted trials and hearings, as they would have to do at the Supreme Court level.

I think what I'm doing at this point is challenging your assertion that those candidates do not exist. This is the final point I'll make: they not only exist now, they are in fact growing in number. As the years go by, more and more competent lawyers and judges will be candidates for the Supreme Court.

[John Major]

I don't think the fact that they're bilingual is going to be held against them. I said at the beginning that it's desirable. I would agree that it would be the perfect world; if you can get a talented judge who is also conversant with the language, that's the best of both worlds.

What we have to do is come down to the tough decision, the ultimate decision--and it may not happen--in which you have a most competent judge who doesn't meet the requirements of the present amendment versus a judge who, though not as competent, does meet those requirements. If you get to that hypothetical position, then I say that in the interests of justice for the whole country, you should pick the most competent judge. After all, it's a judge you're looking for. I agree that chances are you'll be able to find both, but I don't think it should be a statutory requirement because of that possibility of not getting the most competent.

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

It precludes the possibility of the unusual or rare case, given the number of competent lawyers and judges we have at the lower levels, as a candidate. That's your position?

[John Major]

Yes, that's right. It's essentially my position. I want to make it clear. Somebody inferred that I might have said that because a person's bilingual he's therefore not competent. I don't know how that could have been misinterpreted. I'm not saying that. Usually you find people who are bilingual very competent as judges. I have no problem with that. It's an added feature. It's something that elevates them a step higher than another. But we're not talking about those people. We're talking about the tough case, where you have to make a choice—if it ever comes to that—between the most competent but inadequate in this requirement and somebody not as competent.

To me, it would be a mistake to sacrifice competency. If you don't have to sacrifice competency, then it's not a question.

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

Let me flip that to the other side, because I think that if there were criticism of your position, this is where it would come from. What I see and I think most of us who are supporting this motion see is that the competency issue includes giving someone credit for being fluently bilingual.

[John Major]

Well, you see, that's a mistake. Competency in the law and competency in language—some people may be gifted in both, but a linguist may not be a good lawyer. There are lots of them who are very good lawyers, and they can speak two or maybe more languages. It's not an impediment to be a linguist.

However, come back to the essential question. You've asked the tough question: are we going to pick competence over the ability to understand the other language? Don't cloud the issue by saying that you have a lot of both. If you have a lot of both, you don't need the amendment and you don't come down to the question of what the main quality is for serving on the court, which is legal competency. It must be legal competency. At least, that's my opinion.

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

Just so we're clear, if two candidates are of equal competency but one is fluently bilingual, we pick the fluently bilingual candidate.

[John Major]

Yes, I think that's fine. I think then you have equal competency plus, and the plus goes to the person who is bilingual or who understands sufficient, according to the amendment, to qualify.

[The Chair, Conservative, Ed Fast]

You have one minute.

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

In terms of the points you made earlier in your presentation, we did have a law professor and lawyer here on Monday who indicated that he, in fact, felt that on at least one occasion he did not get a full hearing and a full understanding from the bench because of the translation.

[John Major]

Did he lose?

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

He lost on a five-to-four vote.

[John Major]

Frequently the ones who lose have that opinion. I'd like the professor to come. I'd like to challenge him on that. I don't believe it. I know a lot of lawyers who are disappointed. If they're English and they go before an English judge and lose, they walk out and say, “He didn't understand a word I said.” It's so natural for a lawyer to shift the blame that I'm not impressed by the professor who came with that story. I don't believe it.

[The Chair, Conservative, Ed Fast]

Thank you.

We'll move on to Mr. Storseth. You have seven minutes.

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

Thank you very much, Justice Major, for coming. I know it can be very weathering to sit before the committee, so if you need a drink of water or anything, please feel free.

[John Major]

If water's the only resource, I guess so.

[Some hon. members]

Oh! Oh!

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

We appreciate your time today. Truly, somebody who has the experience you have within this field is an eminent resource for us.

I want to start by thanking you for the lifetime of dedication you have provided our country, most recently by leading the investigation into the Air India bombing. You've done great work for our country. I know that everybody around this table appreciates that.

To go on to this issue, I have to admit that I'm not a lawyer, but it does bring some compelling thoughts to my mind. I don't understand how we can say that somebody like Justice Rothstein or you shouldn't have been appointed, even though you may have been the most competent legal mind, simply because you didn't have the requirement of being functionally bilingual. I think it's important that we recognize the words “functionally bilingual”. I'll get to that in a second.

We've had some litigants here that.... I'd like to give you a chance to reiterate your position that you feel the test of competency should be the most important test for a judge, and competency within the law and the legal field, not competency within any language barriers.

[John Major]

Or a musician or anything else.

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

That's a good point.

Mr. D'Amours brought up the point of somebody speaking rapidly in their native tongue, whether it be English or French. As an anglophone Supreme Court justice or a judge in your prior lifetime, have you ever had a case where an English lawyer has presented in front of you and you've asked him to slow down?