Justice Committee on June 17th, 2009

[The Chair, Conservative, Ed Fast]

I call to order meeting number 32 of the Standing Committee on Justice and Human Rights for today, Wednesday, June 17, 2009.

Members, you have before you the agenda for today. We're continuing our review of Bill C-232, An Act to amend the Supreme Court Act (understanding the official languages). We'll be hearing from two separate panels of witnesses.

For the first hour, I'm pleased to welcome retired Justice John Major. Thank you for being here and welcome to our committee. I think you know the process. You have 10 minutes to present, and then we'll open up the floor to questions from members.

[John Major, Retired, Puisne Judge of the Supreme Court of Canada, As an Individual]

My presentation won't be too profound, as I was only invited to this unexpected party, as it were, last Friday. However, I understand the nature of this amendment to the Supreme Court Act requiring that any new nominee understand French and English without the help of an interpreter.

I would begin by saying there is no question of the right of the litigant to have his case heard in his language of choice in Canadian courts. Certainly, in the section 96 courts, that is his right.

The basic concept here has to be properly decided, and the judge has to have a complete understanding of the case. The ideal, of course, would be to have a judge who was perfectly bilingual. But there are very few of those in the country. Of recent memory was the late Chief Justice Lamer, who was fluent both in the spoken and written language.

It is vital that the case is properly understood, and the system must be fair to all parties. But I am absolutely adamant in my view that the test for the appointment of a judge should be competency. That has to be the priority, and anything else that comes with it is a bonus. It would be a mistake to substitute anything in place of competency. Particularly in the Supreme Court, cases have to be as near correct as humanly possible, because they have a national impact on the whole of the country.

Any inadequacies in the language of an appointee are presently handled by way of translation. I was unilingual for all intents and purposes, and I was on the court for 14 years and made use of the translation, which I found to be very good. There was no case from Quebec or elsewhere argued in French in which I did not feel I had a complete grasp of the facts and the positions of the parties.

It's interesting that the United Nations operates the same way, except that they have multi-translations because of the nature of the establishment.

I guess I'm going to sound like a broken record on the subject, but competency is the cloud that sits over top of this.

Sometimes the matter comes up in a different way. As you know, in Canada we have geographic requirements for six of the judges on the Supreme Court; that is, they have to come from different areas of the country. Quebec has constitutional right to three judges. I've heard the question raised—in fact, in Rothstein's appearance—how do the common law judges feel about deciding civil law cases? The answer is that they feel very comfortable, just as the three civil law judges from Quebec feel quite comfortable in deciding common law cases from the nine other provinces. So I don't think the question of understanding a case by virtue of translation is a serious problem.

I think it would be a serious problem for the country as a whole if anything less than competency were the first requirement for appointment to that court. Over the years, there have been no complaints from litigants—at least, not any made to the court during my tenure there. The Canadian Bar Association has not raised this as an issue.

I suppose by way of concluding remarks I would ask, does anyone suffer by this proposed amendment? I would say the litigants suffer if the test of the judge is less than that of competency.

Thank you, Mr. Chairman. Those are the few remarks I have.

[The Chair, Conservative, Ed Fast]

Thank you so much.

We'll open up the floor to questions. Who will be going first?

Monsieur D'Amours, for seven minutes.

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

Thank you, Mr. Chairman.

Thank you for coming this afternoon, Mr. Major. I would like to ask you a few questions.

Would you say that the Supreme Court is the final court or final recourse that citizens can turn to?

[John Major]

As I said at the beginning, I'm unilingual. I was saying how good the translation was.

[The Chair, Conservative, Ed Fast]

We'll make sure you have your earpiece available. We'll wait a moment until you have your earpiece in place.

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

Thank you, Mr. Chairman.

You will now be able to hear the simultaneous interpretation. Perhaps you'll understand my concerns. Do you think that the Supreme Court is the final place Canadian citizens can turn to to have their rights respected?

[John Major]

It raises an interesting question. Not to be too philosophical about it, Parliament remains the final court of appeal, but in the judicial system it's the Supreme Court.

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

So it is the final court. I asked the question but I expected the answer. As you know, in the lower courts there are bilingual judges. The fact that they are bilingual means that francophones can automatically exercise their rights in their own language. It also means that anglophones can exercise their rights in their language. It means that when there is a need to speak, one can do it in one's language. The judge who is sitting will be able to understand the importance of the arguments and ensure their rights are respected. I'm talking about the lower courts.

Given that you stated earlier that the Supreme Court is the final court Canadian citizens can turn to to exercise their rights, it is fortunate that being before the Supreme Court does not involve life or death issues. However, one can't go any further than that.

Do you feel that people should feel comfortable and certain that they are at no risk, with respect to the Supreme Court's final rulings, because of their language?

In the lower courts, these individuals are guaranteed that they can speak in their own language and that the person before them will be able to speak to them in their own language and understand their language. One can go no further, I'll repeat this, one can turn to no other court, one has no other recourse, it's the end. Earlier, you couldn't hear the interpretation. Therefore you were not able to understand me, and I respect that, but imagine the situation where the interpretation was even further from what I am saying right now. If people cannot be well understood because of the interpretation, do you think that the citizens or the lawyers representing them will be able to present their arguments and fully exercise the rights of their clients?

[John Major]

From my experience there and seeing the litigants argue in French, I never had the impression that they did not feel they were being fully understood. There will always be, of course, the three Quebec judges, but the environment and the translation is such that it never occurred in my 14 years. The translation is very good. The parties argue in French and seem quite comfortable with the questions asked, and in many cases the lawyer understands English, so he answers; in other cases, it's translated for him.

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

Mr. Major, imagine an individual who wants to exercise his rights, an individual who wants to say absolutely everything he or she has to say before the Supreme Court and be sure that the judges will be able to understand his arguments and the direction that he is going in. Are you certain that the judges have no problems? It can't just be a feeling, it has to be a certainty.

I have been speaking somewhat faster and I am convinced that it automatically becomes more difficult for the interpreters to follow me. Imagine a flamboyant lawyer who's getting carried away and who is speaking even faster than I am. At some point in time the judge will probably experience problems in understanding everything that lawyer is saying. The interpreter will also experience problems in following what they are saying.

If the interpreter is having a problem in following me, will you, as a judge at the Supreme Court, be able to fully understand my arguments?

[John Major]

I understand what you're saying, but from my experience, if the lawyer was speaking rapidly, you would ask him to slow down. The translation always seemed to be accurate; the lawyers appeared quite comfortable. Now, I can't speak for what may be their hidden thoughts, but I never had the impression that the francophone lawyer did not feel his case was understood.

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

You'll understand that on the other hand, the speed I am speaking at would not be a problem for a judge who understood my language. I could speak at whatever speed I wanted to, and the judge would be able to understand me.

[John Major]

No, don't assume that, because many lawyers speak very rapidly and they're asked to repeat. You have to hear what's being said if you're a judge. Some lawyers get excited, speak rapidly, and the court will say, “You're speaking too quickly.” So you have to adjust to who you have in front of you.

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

I understand your point of you, but clearly if the judge before me understands my mother tongue—even if I come from New Brunswick my mother tongue is French—then regardless of the speed at which I'm speaking, they will have no problem in understanding me. It's the translation that may suffer some distortion or delay.

You say that a lawyer can be asked to speak more slowly but I would just point out that this is also a way to exercise one's rights. They say what they want to say and it comes from the heart. Lawyers are there to ensure that their client, who is a Canadian citizen, gets full justice. This is the final court in the land. I understand that lawyers can be asked to slow down, but this is their way of expressing themselves.

If judges understand both French and English does that not allow lawyers then to express themselves at the speed they wish to? If this is how they exercise the rights of their clients then at least they can do so fully. When citizens hear the ruling, whether it is in their favour or not, at least they will know that they were fully understood. At least they will be able to tell themselves that the proceedings were held in their language and that nobody will have been able to say that they didn't understand what was said fully.

[John Major]

You made some assumptions that I don't agree with.

What we're talking about is a trade-off. In the ideal world, all nine judges would be bilingual. In a practical sense, it's going to be very difficult to find judges from B.C. and Alberta who have had the same opportunity to be bilingual. So the test is this. Will you sacrifice the competency of a judge in order that he has an understanding, without the help of an interpreter, to hear the case? In my opinion, to sacrifice competency in order that all the judges.... They may not be bilingual in accordance with the amendment; they just understand with an interpreter. I think it's a bad trade-off for the litigant. I would prefer to have a competent judge who needs the help of translation than someone not as competent who does not.

[The Chair, Conservative, Ed Fast]

Thank you.

We'll move on to Mr. Ménard.

[Réal Ménard, Bloc, Hochelaga, QC]

Thank you for coming this afternoon.

I would say with the greatest of respect that I was very disappointed by your testimony. I hope that your opinions aren't shared by most legal experts.

First, I refuse to disassociate competency and bilingualism.

[The Chair, Conservative, Ed Fast]

On a point of order, Mr. Storseth.

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

Thank you, Mr. Chair.

I'd like to point out that Mr. Ménard represents a riding in Quebec and he represents the Bloc Québécois, but he does not represent the majority of lawyers in this country and shouldn't speak on behalf of them.

[The Chair, Conservative, Ed Fast]

Thank you, Mr. Storseth. I don't believe that's a point of order, it's a point of debate.

[Réal Ménard, Bloc, Hochelaga, QC]

This is not a point of order, and you will ask your question at your turn. Now it's my turn.

[The Chair, Conservative, Ed Fast]

Monsieur Ménard, please continue.

[Réal Ménard, Bloc, Hochelaga, QC]

As I was saying, sir, I'm disappointed in your opinion and I hope that it is not shared by most legal experts. I refuse to accept that there's no connection between competency and knowledge, on the one hand, and bilingualism, on the other. Mr. Godin pointed out in his testimony that the requirement to be bilingual applied to courts within federal jurisdiction. Therefore if this requirement applies to judges in federal courts that are lower than the Supreme Court, I would think that as parliamentarians we are justified in thinking that it should also apply to Supreme Court judges.

I do not know why you haven't learned French and I don't judge that, but as parliamentarians, it is our duty to say that if Mr. Godin's bill is passed, then all those in the legal profession in Canada who want to be accepted on the bench and be given higher levels of responsibility, in the Supreme Court, for example, will have to learn French, whether they come from Alberta, Prince Edward Island, Saskatchewan or elsewhere. If, in your case, that requirement had existed, then maybe you would have made the effort to learn French.

I think that Mr. Godin's bill sends a very clear message to the next generation of people of the legal profession. I do not question at all your legal knowledge and I do not doubt that you have served the Supreme Court well, but if that message had been clearer when you were studying law, then perhaps you would have made the effort to learn French.

I would like to hear your opinion on that.

[John Major]

You've asked me about 15 questions, but let me try to answer some of them.

First, this amendment would not have the support of the majority of lawyers in Canada. I doubt it would have the support of the majority of lawyers in Quebec. That's point number one.

Point number two is that in my own case I did not aspire to be a judge; I was invited to be a judge when I was in my late fifties. So your premise that you start off wanting to be a judge and as a result you'll learn French is not practical, because I don't believe most lawyers start out wanting to be a judge. You can't be a judge by choice; you have to be selected. You can't write an exam and be a judge.

In the lower courts, as you mentioned, they are entitled to have their cases heard in the language of their choice, and in virtually all those courts.... In Alberta, for instance, you have 90 judges, and of the 90 judges there are some who are bilingual and can hear the case in French. So at the lower courts it's not a problem. There are enough bilingual judges in both languages. I'm sure the same is true in Quebec. You can have your case heard in English. A Supreme Court decision says you can do that in French or English. But we come back to this question: if you have the most competent judge possible available but he needs to use translation, are you prepared to say to the people of Canada, we're not going to give you the best judge; we're going to give you the best judge who can understand your language without translation?