Justice Committee on Sept. 30th, 2009

[The Clerk of the Committee, Ms. Miriam Burke]

Good afternoon, honourable members.

I see a quorum. We can now proceed to the election of the chair. I'm ready to receive motions to that effect.

Monsieur LeBlanc.

[Dominic LeBlanc, Liberal, Beauséjour, NB]

Madam Chair, I suggest that Ed Fast continue his work as chair of our committee.

[The Clerk]

It's been proposed by Mr. LeBlanc that Mr. Fast be elected as chair of the committee.

(Motion agreed to)

Before inviting the chair to take the chair, we'll now proceed to the election of vice-chairs, if the committee wishes.

Mr. Moore.

[Rob Moore, Conservative, Fundy Royal, NB]

I'd like to nominate Brian Murphy for position of vice-chair.

[The Clerk]

It's been moved by Mr. Moore that Brian Murphy be elected as first vice-chair of the committee.

Is it the pleasure of the committee to adopt the motion?

(Motion agreed to)

I'm now prepared to receive motions for a second vice-chair.

Mr. Lemay.

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

I move that Mr. Serge Ménard be elected second vice-chair.

[The Clerk]

It is moved by Mr. Lemay that Mr. Ménard be elected second vice-chair of the committee.

Are there any further motions?

(Motion agreed to)

I now invite Mr. Fast to take the chair.

[The Chair, Conservative, Ed Fast]

Thank you, Madam Clerk, and thank you, committee, for your confidence.

We're in meeting number 35 of the Standing Committee on Justice and Human Rights. Today is Wednesday, September 30, 2009.

As you have seen, the agenda for today contains only one item, which is the election of the chair and the vice-chairs. In order for us to continue and hear a witness on Bill C-232, we need to have the unanimous consent of the committee. Do I have that unanimous consent? All right. For the record, we have unanimous consent to proceed.

We are proceeding with Bill C-232, An Act to amend the Supreme Court Act (understanding the official languages). It's my pleasure to welcome here to our committee the representative from the Law Society of New Brunswick, Marie-Claude Bélanger-Richard. Welcome here.

I think you've been told that you have 10 minutes to present. Then we're going to open up the floor to questions from our members. Please go ahead.

[Marie-Claude Bélanger-Richard, Vice-President, Law Society of New Brunswick]

Thank you very much, Mr. Chair.

I'm quite pleased, on behalf of the Law Society of New Brunswick, to have accepted the invitation to appear before this committee. I'd like to commend the chairman on his new term within the committee.

I am the Vice-President of the Law Society of New Brunswick. I've been a lawyer for 23 years and in private practice for 17 years, having articled for approximately 4 years in the administration of justice, more specifically at the New Brunswick Court of Queen's Bench. As you know, New Brunswick is a bilingual province which unequivocally recognizes the legal status of French and English within the justice system. In our province litigants have the right to proceed in the language of their choice, which is very important, to be understood by the trial judge or by a panel of judges hearing the case in the language of the litigant's choice.

We have prepared a brief document to outline the position of New Brunswick. On the first page you'll find a section entitled "Insight from New Brunswick". It includes sections of the New Brunswick Official Languages Act. I would like to point out that under section 18 of the act, no person shall be placed at a disadvantage by reason of the choice he or she has made as to the language used in proceedings. In New Brunswick, that is a very important aspect of the Official Languages Act.

The Law Society of New Brunswick supports Bill C-232. As mentioned by a number of individuals and representatives who have already appeared before your committee, in light of the evolution of this country and of linguistic rights since the advent of the Canadian Charter of Rights and Freedoms, oral and written understanding of legal proceedings through translation or interpretation before the highest court in the land is a legislative anomaly. Even with the best intentions, for the individual trying to understand and for the interpreter, interpretation or translation do not necessarily reflect the essence of a text, the nature of an expression or of a word, the tone or the force of an argument. Moreover, because our laws are bilingual, it goes without saying that an understanding of French and English can open the door to a determination based on subtleties of language or syntax. Thereby the necessity of understanding French and English, in order to arrive at a wise determination of the interpretation of our laws.

Bill C-232 is quite laudable. As I mentioned, the Law Society of New Brunswick supports it. However, there is one concern. Despite the relevance of the problem and its timeliness, Bill C-232 does not immediately rectify the situation. As mentioned by Yvon Godin, member of Parliament, the proposed provision would only apply to any new appointment of justices on the Supreme Court of Canada. Until such time as there are only bilingual judges sitting on the Supreme Court of Canada, the problem of being understood in the language of one's choice by the highest court in the land persists.

What the Law Society of New Brunswick proposes may seem like an interim measure, but in fact, we view this recommendation as a long-term solution to the problem all those who support this bill have attempted to address. Litigants, lawyers and judges all want a fair solution that addresses the needs of litigants. The Law Society of New Brunswick's recommendation is therefore to require that all Supreme Court justices presiding understand the official language of proceedings or both official languages if both are used in proceedings.

Under the Supreme Court Act the quorum for hearings before the Supreme Court of Canada is of five judges. By immediately enacting what we are suggesting as a legislative change, during hearings the understanding of one of the two official languages used in the proceeding would be required. This requirement would not in any way negatively affect the operations of the Supreme Court of Canada and would immediately serve to address the problem. Indeed, it would mean that litigants could immediately be heard and understood by the Supreme Court of Canada.

On page 3 of our brief you will find the proposed amendment. Rather than amending section 5 of the Supreme Court of Canada Act, there would be an amendment to section 28, regarding the inability for judges to sit in some cases, by adding two paragraphs specifying that in order to hear a proceeding, all judges on the Supreme Court of Canada must understand the language of the proceeding.

I am prepared to entertain your questions.

I thank you for your attention.

[The Chair, Conservative, Ed Fast]

Thank you very much.

We'll move to Monsieur LeBlanc for seven minutes.

[Dominic LeBlanc, Liberal, Beauséjour, NB]

Thank you, Mr. Chairman.

Thank you very much, Marie-Claude, for your testimony and your suggestion, which I briefly discussed with my colleague Ms. Jennings. To begin with, we find it interesting. I had not considered the option of only allowing judges who understand the official languages used to sit at a hearing. I find it an interesting idea that we could pursue, perhaps as an amendment to this bill.

On this point, I did note that the Law Society of New Brunswick supports the bill and does not object to it being passed, but with an amendment which I find rather interesting. However, what will you say to those who say that because an individual decides to proceed in French, for instance, he or she would not benefit from having nine or seven judges but would only have five. On any case of great moment, heard by the Supreme Court, nine judges will sit and rule.

I understand that legally speaking, a panel of five judges may have exactly the same decision-making power as a larger panel, but would this not in some way lead to a two-tier appeal system? To be realistic, if individuals decide to proceed in English, they will benefit from having nine judges, but those deciding to go ahead in French may only have five or seven judges.

Do you not find this puts those who choose to proceed in one official language rather than the other at a disadvantage?

[Marie-Claude Bélanger-Richard]

I would say that a larger number of judges does not necessarily mean greater intellectual capacity. Conversely, it is not because there are fewer judges that their intellectual capacity would be weakened. I certainly would not dare say such a thing about the members of the Supreme Court of Canada.

I would say that the fact of having judges who understand the language being used or both official languages would in fact lead to a far more active and unhindered debate. If a judge must depend on interpretation or translation, it serves as a crutch. That judge would not have a comprehensive understanding of the debate.

Again, people do their best through translation and interpretation, but at the end of the day, as I mentioned earlier on, meaning can be very specific. It doesn't always happen, but it may happen that a specific tone or meaning behind a word could be lost in translation. Interpretation is very quick, especially when representations are being made. It is very easy therefore to lose the tenor or the force of an argument, especially when one has to make the added effort of interpreting a bilingual text.

So, yes, I do believe there would be fewer judges. Would that mean a decreased intellectual capacity? Absolutely not. On the contrary, I believe the debate would be even more fruitful and productive, because there would be no need to explain to colleagues who did not understand that the translation was not correct, or was in some way lacking. We would have justices who would have fully heard the representations made by counsel.

[Dominic LeBlanc, Liberal, Beauséjour, NB]

Thank you.

I have one other question. You represent the law society of the only Canadian province which is officially bilingual. Our Court of Appeal, in New Brunswick, does not have this type of a bill. I'd like to ask you two questions.

Would you be in favour of the Legislative Assembly of New Brunswick, for instance, deciding on the type of measure we are currently considering, so that it might apply to the New Brunswick Court of Appeal?

Also, there have been appointments to our Court of Appeal, over the last few years. Speaking as an individual, are you happy and satisfied with the language representation on our Court of Appeal, as it now stands? I'm referring to the full-time judges on our Court of Appeal, today. And what do you think of the male/female representation on our Court of Appeal?

[Marie-Claude Bélanger-Richard]

At first glance, in New Brunswick, there is obviously no representation-related requirement for the choice and appointment of judges to the Court of Appeal. That said, the choice or selection of a judge is a sensitive question, because we must ensure socio-cultural and socio-linguistic representation. It is true that, up until recently, there were two female judges on the Court of Appeal of New Brunswick. We also had the same number of judges whose mother tongue was French as whose mother tongue was English.

The recent appointments have changed the membership of the Court of Appeal in this respect. The Law Society of New Brunswick is of course concerned: it must ensure that socio-cultural and socio-linguistic representation is maintained, in my opinion, because it is a source of intellectual wealth leading to better legal debate. Therefore, it is a worrisome trend we should clearly keep an eye on.

I believe that the Law Society of New Brunswick will always maintain this position: diverse representation is beneficial to a court, specifically to the Court of Appeal.

[Dominic LeBlanc, Liberal, Beauséjour, NB]

Thank you.

Thank you Mr. Chairman.

[The Chair, Conservative, Ed Fast]

Thank you.

We'll move on to Monsieur Ménard for seven minutes.

[Serge Ménard, Bloc, Marc-Aurèle-Fortin, QC]

It is a great pleasure to have you here with us, and so well prepared.

I believe I understand all of the good reasons why Supreme Court justices should be bilingual. And you must have heard the same criticism we have heard on this position in the past, in that we would be depriving ourselves of a pool of expertise. Indeed, brilliant jurists who could have a career on the Supreme Court would not be appointed to it due to this requirement. Moreover, it would be unfair in a way for these brilliant jurists who, having lived far from central Canada and not having had the opportunity to learn French at a young age, would not have become perfectly bilingual.

I'm certain that before you appeared here, you had considered these arguments, at the Law Society of New Brunswick. What do you say in response to this?

[Marie-Claude Bélanger-Richard]

As you know, a recent appointment in Nova Scotia has shown that it was possible to find very qualified bilingual judges, in this case Justice Cromwell. We will try to make a recommendation when the case relating to the selection of judges is heard, imposing a requirement for judges to understand both official languages used during the hearing of a case. It will encourage judges to become bilingual, those who may not otherwise be able to take part in a legal debate at the Supreme Court of Canada.

I believe the judges appointed to the Supreme Court of Canada have intellectual curiosity. These are people who are disciplined, and have irreproachable work ethics. So, the fact of being excluded from debates for a time because of a language problem will arouse the interest of candidates in this language so that they may take part in debates. Instead of immediately proceeding to select bilingual judges or to postpone the selection as Mr. Godin suggested, this recommendation to impose an understanding of both official languages during proceedings would in the meantime urge judges to become bilingual.

[Serge Ménard, Bloc, Marc-Aurèle-Fortin, QC]

Perhaps I was misunderstood.

You must have heard people, in one part of Canada, saying that this provision would limit the pool of competencies when it comes to the Supreme Court. I am certain you must have heard that and that you've discussed it at the Law Society of New Brunswick.

What do you say in response to these people?

[Marie-Claude Bélanger-Richard]

Are you really limiting the pool? Do we want justices on the Supreme Court of Canada who are open-minded and knowledgeable about Canadian values? Is knowing the language or having an interest in learning the language not precisely one of these essential values we must promote?

Among the pool of qualified candidates, the fact that an individual shows intellectual curiosity about the other official language or both official languages is a sign of a competency which is perhaps even more important than others, when the time comes to choose.

[Serge Ménard, Bloc, Marc-Aurèle-Fortin, QC]

I believe you're fully bilingual. Is that correct?

[Marie-Claude Bélanger-Richard]

Yes.

[Serge Ménard, Bloc, Marc-Aurèle-Fortin, QC]

Over the course of your career, you must certainly have had the opportunity to speak French when you had access to simultaneous translation. I sometimes attempt to instantly translate certain things in my own mind to practise my bilingualism. Even with extraordinary skills, it is a difficult task is it not?

[Marie-Claude Bélanger-Richard]

Absolutely. And there are good and bad days.

[Serge Ménard, Bloc, Marc-Aurèle-Fortin, QC]

Have you ever had the impression of having been misunderstood?