Justice Committee on Sept. 30th, 2009

[Marie-Claude Bélanger-Richard]

I would say that even in our own language, it seems as though sometimes some judges do not understand our arguments, but I do not think it is necessarily a matter of translation.

In New Brunswick, the question is moot. I have always practised with bilingual judges. If it was known that a case was proceeding in French, in English or in both languages, the judge hearing the case was bilingual. I've never had to resort to interpretation for a judge to understand me. I've sometimes had simultaneous interpretation of witnesses' comments, because it was available to the parties who could not understand the other official language.

In New Brunswick, colleagues are very tolerant when we are presenting our arguments. However, take a case where the judge and myself are bilingual and my colleague is unilingual. Generally, the interpreter will whisper into my colleague's ear so that the flow of my arguments is not interrupted by interpretation. People are very tolerant and respectful, in New Brunswick.

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

So, it is a difficult task.

[Marie-Claude Bélanger-Richard]

Absolutely.

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

It is difficult to accomplish 100%.

[Marie-Claude Bélanger-Richard]

Absolutely.

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

Ideally an individual would be at least passively bilingual, in other words they would have a very good understanding of the other language, even if they were unable to write in the other language with that same level of ease.

[Marie-Claude Bélanger-Richard]

Absolutely. We are referring to both written and oral understanding. One has to be able to read the documents to understand their tenor, as well as speak and understand.

[The Chair, Conservative, Ed Fast]

Merci.

We'll move on to Mr. Comartin for seven minutes.

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

Thank you for being here, Ms. Bélanger-Richard: I enjoyed your presentation, and I have no questions to ask.

I'm interested in the amendment, as is Mr. LeBlanc, but I'm just a bit concerned about whether it's in order. In advance of when this comes back for clause-by-clause, could we have a ruling? I don't know Mr. Godin's position on whether we could do it by unanimous consent, and I don't know how the other parties feel about this, but at the very least, perhaps we could have a ruling on whether it's in order. If it's not, we could pursue other alternatives.

That's all. Thank you.

[The Chair, Conservative, Ed Fast]

Thank you, Mr. Comartin.

The clerk has made a note of your request, and we'll provide that opinion.

We'll move on now to Monsieur Petit for seven minutes.

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

Thank you.

Good day, Ms. Richard. I'm from the province of Quebec. I'm a lawyer and, like yourself, I'm still practising, but less often, given that I am a member of the House Commons.

I'll give you a brief overview of my background. Mr. Ménard was my Minister of Justice in the Parti Québécois government. That party enacted Bill 101 in 1976 or 1977. The act requires the use of French everywhere, especially in the universities. I studied at the primary school level in French. At the time, that wasn't so bad. I went to high school only in French, and my law degree at Laval University was in French only, because Bill 101 had been enacted. So, today I'm a unilingual francophone and functionally bilingual.

Except that when I go before the courts, at least in Quebec, I will get a judge based on the language requested by the lawyer or the client. Several of them are unilingual anglophones or unilingual francophones, whereas other are bilingual. I come from Quebec City, which is mainly unilingual. My former Minister of Justice, Mr. Bédard—who knows Mr. Ménard very well—comes from the Lac-Saint-Jean area, where all proceedings are in French. Mr. Bédard is an excellent lawyer. He and other lawyers have won cases.

I would be struck from the list of potential judges because during my entire career, I never practised in the other language. There are 23,000 lawyers in Quebec and approximately 18,000 of them could not go to the Supreme Court without an interpreter. I accept the need to be bilingual, but that would be without interpreters. There are lawyers here from Alberta and New Brunswick and even my former Minister of Justice, Mr. Ménard. If we were to argue before the Supreme Court, we may have some difficulty, without an interpreter, in other words we would not be eligible. Does the fact of being unilingual make us incompetent?

The bill states clearly "without the assistance of an interpreter“. I'd like you to tell me whether I would be eligible.

[Marie-Claude Bélanger-Richard]

Before I answer that question I will also give you some of my history. I'm originally from Quebec. I did all my primary and secondary schooling in Quebec. I was unilingual. I started my civil law degree at the University of Laval strictly in French. I moved to New Brunswick because I wanted to study common law in French. At the law faculty where I was studying, everything was in French.

I started working for the Court of Queen's Bench. At the time, no one understood my English: I was barely bilingual. It gave me an opportunity to learn English. The desire to practise in the province helped me learn English and speak it increasingly. So I understand the dilemma it causes. A sensitivity to language, even though it is not mentioned in legislation remains an asset in the choice of a Supreme Court justice. We shouldn't delude ourselves. Mentioning this criterion could be an incentive for individuals aspiring to be Supreme Court justices, it would urge people to broaden their horizons and learn the other language.

I personally lived in New Brunswick and was living in a bilingual environment, in Moncton, where 40% of the population is francophone. My parents lived in the city for a few years and were never able to learn English; they lived in French the entire time. It's a matter of will and of knowing that it is a prerequisite. For instance, in New Brunswick, bilingualism was not formally mentioned as a requirement, but because we didn't know the language of our clients, bilingualism was necessary. So, I learned English.

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

You are currently in New Brunswick, a bilingual province, whereas I stayed in Quebec, where Bill 101 is the law that applies. The truth of the matter is that Bill 101 applies before the courts and the same thing is true for universities, even today, 40 years later. Having practised in Montreal, I know that bilingualism in that city is much closer to that of New Brunswick. We can refer to the two statutes, in English, in French, etc.

Is there not a risk that this legislation will only result in lawyers from the provinces, like myself, being excluded, whereas lawyers from Montreal who, like you, have had the opportunity to regularly practise in both languages, would be accepted? On the other hand, if they are less intelligent than myself, I am the one who would be penalized. If there is no interpreter, that is what will happen. I could not sit on the Supreme Court, even if I am more intelligent than another person who is bilingual.

[Marie-Claude Bélanger-Richard]

Mr. Petit, if the opportunity presented itself, would you wish to be bilingual? I do not believe that intentionally or on principle, you would wish to remain shackled by unilingualism. As you were saying, an environment exists and this resulted in your not learning to speak English. I understand you because I was in that situation. In Quebec, we did not learn to speak English. Even my Grade 6 teacher, who had an English course to teach, refused to do so. That was the reality at that time.

However, if you had the opportunity to become bilingual, you would do so and you would give that same opportunity to your children, who may some day wish to become lawyers or judges. On the face of it, we seem to be ruling out some people, but I believe that anyone who has intellectual curiosity and wants to broaden their horizons will take the necessary means to do so.

I lived in Quebec and I also lived in Rivière-du-Loup. I was in no way in bilingual environments. I did not live in Montreal, but I took English immersion classes in Fredericton and in Ontario during my adolescent years because I wanted to be bilingual. The fact remains that it was living in New Brunswick that really allowed me to become bilingual.

[The Chair, Conservative, Ed Fast]

Thank you.

Ms. Jennings, you have up to five minutes.

[Marlene Jennings, Liberal, Notre-Dame-de-Grâce—Lachine, QC]

Thank you, Ms. Bélanger-Richard. I greatly appreciated your presentation and the suggestion that you have made to the committee, that is to consider another way of ensuring there is bilingualism within the Supreme Court of Canada. I would like to make a few comments and hear your reaction to them afterwards.

In the past—I believe it was toward the end of the 1950s—the vast majority of universities in Canada and the United States, as well as England, required anyone wishing to obtain a bachelor of arts degree to learn another language. A great many unilingual young people enrolled in bachelor's programs and made the effort to take classes to learn a second language, in order to get their law degree.

Do you believe that it is relevant that at the Supreme Court of Canada, we require aspiring judges to be bilingual?

[Marie-Claude Bélanger-Richard]

If I understand you correctly, you are suggesting that we start at the beginning, in the law schools.

[Marlene Jennings, Liberal, Notre-Dame-de-Grâce—Lachine, QC]

No. What I was trying to say is that in the past, people were aware of the situation. When their children wanted to go to university, their parents often encouraged them to learn a language other than their mother tongue, in high school, so that they would have a competitive edge over others when they got to university. For example, if my daughter decided to become a lawyer, and she was unilingual, but was considering the possibility of potentially being appointed to the court, she might wish to learn another language.

[Marie-Claude Bélanger-Richard]

That is more or less what I was trying to say in my answer to Mr. Petit. Knowing that it is a criterion for selection and appointment to the Supreme Court of Canada, it would necessarily be an incentive for lawyers to learn the other official language. I would add that I have the greatest respect for the lawyers who are appointed to the Supreme Court of Canada. I know that they have intellectual curiosity. Therefore, every person appointed will attempt to take the necessary steps to learn the other official language.

The federal government has had language training programs for judges for several years now. I work in administration and I know that several New Brunswick judges who wanted to learn the other language went and took language training courses. The courses offered to judges are excellent.

[Marlene Jennings, Liberal, Notre-Dame-de-Grâce—Lachine, QC]

Thank you very much.

[The Chair, Conservative, Ed Fast]

Thank you.

Monsieur Lemay, cinq minutes.

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

Good afternoon, counsellor.

I must admit that, having appeared before the Supreme Court, I have some difficulty accepting that we would limit... You stated that five judges constitute a quorum; that is in section 25 of the Supreme Court Act. However, if I understood your recommendation correctly, when the case will be argued in French before the Supreme Court, there could still be a quorum of nine justices, but it would be one of the five who understand French who would be the lead judge in the case.

Is that what you are recommending?

[Marie-Claude Bélanger-Richard]

No. The quorum is the panel. The Supreme Court of Canada currently has eight bilingual judges. Therefore, if the case is being argued in French, in order to have a panel constituted of an odd number of judges, in all likelihood there would be a panel of seven judges that would hear the case. Therefore, it's somewhat like the point raised by Mr. LeBlanc: if there is a reduced panel, do we have a two-tiered justice system?

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

That is where I agree with Mr. LeBlanc: I am also afraid that the Supreme Court may practise a somewhat two-tiered justice system.

I find your proposal interesting, it is a good debate. However, I do not agree with Mr. Petit, obviously, because I have a great deal of respect for judges who come from other provinces and bring a different perspective. How will we oblige a judge to do something? I do not believe that a judge, once he has been appointed to the Supreme Court, will learn to speak French if he does not already do so. Unless you can give me an example. Honestly, I know Supreme Court judges who have made efforts, but going from that to being able to follow a discussion... You know the Honourable Justice Lebel. When he turns to you and starts talking, some people are not able to follow what he is saying. Furthermore, Honourable Justice McLachlin asked us to slow down.

Do you believe, if we do not oblige justices of the Supreme Court to be bilingual, that they will still learn French?

[Marie-Claude Bélanger-Richard]

I would be greatly tempted to answer yes.

We are talking about the language ability of judges. At the time of selection, they are not subjected to the language ability test. Lawyers fill out a form and it is up to that same person to say, yes or no, if they consider themselves to be sufficiently bilingual. There is not even a discussion of whether or not they are functional in the language. It is French and English and that is all.

On the contrary, I would say that if we insist on the ability to understand both official languages, afterwards, at the time of the hearing, it would be a much greater incentive for the person who was perhaps more or less bilingual at the time of their appointment to continue their language training specifically to be able to hear all of the cases that come before the Supreme Court of Canada. Once the choice is made, the candidates say that yes, they are bilingual, but their language ability is never really challenged afterwards, if they can make use of translation and interpretation.