Justice Committee on Sept. 30th, 2009

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

How does that work in New Brunswick?

At the Court of Quebec, when we interview the candidates... I was running a competition in order to recruit judges for the Far North of Quebec—Kuujjuaq, Sagluk, etc.—and we were speaking in English, because everything was happening in English.

In New Brunswick, how does this work?

[Marie-Claude Bélanger-Richard]

There are no interviews for Supreme Court justices, unless it is an exception. To my knowledge, only two or three people have had interviews with the committee. For the others, a form was filled out by the candidates, who checked the appropriate boxes.

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

At the Supreme Court, it is even worse. These are appointments, nominations, and the judges who sit on the Supreme Court are rising stars. Therefore, I have only one question. It makes me nervous. I swear to you, I am a bit reluctant and I agree with Mr. LeBlanc. I fear we will have two-tiered decisions, I'm afraid there will be two-tiered hearings at the Supreme Court, which is the highest court and the final court of appeal. Often, judges who perhaps do not understand French may have a focus that allows them to express or to explain the position of the person appearing before them.

[Marie-Claude Bélanger-Richard]

I agree. As in all things, nothing is perfect. Therefore, there may be times where indeed a unilingual judge would shed some very relevant light on a debate before the Supreme Court of Canada. On the other hand, in other situations, the unilingual judge would in fact distort the debate because he did not properly understand the arguments. And so, unfortunately, we have these two situations.

What should we do? I think we must consider what it is we are trying to correct here. We are trying to ensure that the person before the court, represented by their lawyer, will be understood by the tribunal.

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

It is the nine judges. In my opinion, it concerns the nine judges.

[Marie-Claude Bélanger-Richard]

Yes, but the legislation provides that the quorum is five judges.

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

Yes, but they are often nine. For significant cases, for example abortion, it was a full quorum.

[Marie-Claude Bélanger-Richard]

In that case, I come back once again to the choice of judges. As a lawyer, I believe that the choices that have been made have always been made in light of the fact that the person had a professional ethic that was beyond reproach, a good work discipline and intellectual curiosity.

Therefore, I tell myself that I have to count on the fact that the appointed people will indeed be open to learning the other language and that they will not limit themselves by saying they are unilingual and that they do not wish to know anything about the other language or the other culture. In my opinion, that is the very antithesis of the justices appointed to the Supreme Court of Canada. That is not at all what we are looking for in candidates. Let us set aside the issue of language. We are looking for a candidate with an open mind, a candidate who is curious and who has an ability to analyze as well as a good mind.

[The Chair, Conservative, Ed Fast]

Thank you.

We'll move on to Mr. Rathgeber. You have five minutes.

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

Thank you very much, Mr. Chair.

Thank you for your presentation and your brief.

Like Mr. Lemay, I have some concerns about your proposal and this bill, but I'm perhaps concerned for very different reasons than is my friend Mr. Lemay.

I come from Alberta. Alberta currently does not have a justice on the Supreme Court of Canada. The last incumbent from my great province, Justice Major, appeared before this committee and spoke passionately against this private member's bill. He, as I'm sure you know, is a unilingual anglophone, as am I. Under the proposed bill, but perhaps not under your proposed amendment, he would have been deemed incompetent for appointment to the Supreme Court, and I would argue that would have been a blow to Canadian jurisprudence and the Supreme Court.

I don't disagree with your answer to Mr. Petit, that he ought not straitjacket himself with his unilingualism. I appreciate that advice. But my suggestion to you is that those of us who come from western Canada do not have the opportunities to become bilingual as those of you who are fortunate enough to grow up in New Brunswick or Quebec do. So what am I to say to my constituents who are very concerned about the prospects of not having another Supreme Court appointment if either the bill, as Mr. Godin wrote it, or your proposal were to become the law?

[Marie-Claude Bélanger-Richard]

First of all, when I was at the faculty of law at the University of Moncton, I remember there were a couple of students who came from Alberta. The program was in French, so they had to be able to communicate and write in French. It's possible. I know it's not easy.

You mention New Brunswick. I would say it is similar to Quebec City. Yes, New Brunswick is bilingual, more in the south of the province, but if you go up north it's very unilingual francophone. Maybe they are more exposed to the other language, but it's still very unilingual francophone.

Once again, the only thing we can say is that it's a matter of opportunities. Knowing the requirement is there to be bilingual if you want to achieve that level, you have to take measures. There are French immersion programs all over Canada, I know, because when I was in the province of Quebec, I took an English immersion program in Ontario, and after that in New Brunswick. So it's possible.

It's not easy. I would agree that in some regions it might not be as easy. Also, it's not easy for everyone to become bilingual. I have a strong French accent when I speak English and I'm not able to get rid of it; it's there. This is the way I speak English, but I continue to try to improve. I think it's a continuous process to be bilingual.

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

It is challenging when you come from the west.

My second question is very simple. At the end of day, which in your view is more important, competency in the law or competency in language?

[Marie-Claude Bélanger-Richard]

Competency in law involves more than the pure legal principles. If you want to be a good jurist, you have to know the law; you have to know the application of the law, but also have some sense of equity and justice. Principles of law are very general. They become tangible in their application, so you have to have good common sense and good judgment. It's more than just knowledge of the law.

If I go along with that idea of the sense of justice and knowing your society and people's values, all of that is important in the interpretation and the application of the law, because principles of law are very dry. They become alive when they are applied in a particular context. So it's a bigger knowledge of the law that you have to have.

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

Do I have more time?

[The Chair, Conservative, Ed Fast]

No. Your time has expired.

We will move on to Mr. Dosanjh, for five minutes.

[Ujjal Dosanjh, Liberal, Vancouver South, BC]

Thank you.

Coming from the west and being less than even unilingual, because English is not my first language and I don't know French, I have some sympathy for what Mr. Rathgeber just said. But I can also tell you as a member of the bar in British Columbia, having practised there for many years, that working through interpreters is less than satisfactory. My clients, either as witnesses or litigants or accused, were at the receiving end of some unfairness because sometimes the interpreters didn't do a proper job and the judge didn't get the full story. When you challenged it, the judge thought you were simply quibbling because you weren't getting your point of view in the mind of the judge.

With respect to your proposal, I wonder whether that proposal would not give the government of the day an option to appoint judges who were less than absolutely proficiently bilingual, because they would know that there is an opportunity to have somebody not on the panel if the person doesn't understand the language of the litigant. Would it not lead to a diminution of the objective of this amendment?

The purpose of this amendment is to have absolutely fluently bilingual people appointed to the court. If there is an opportunity for some judges to not sit on a particular case, then that requirement could be eased or somewhat ignored at some times in our future history.

[Marie-Claude Bélanger-Richard]

This is why I started by saying that the Law Society of New Brunswick supports the bill. I think both the bill and what we recommend could go along together in the sense that what we suggest will immediately provide at least some relief to the problem, I would say, because at least we would have someone being understood by the court. It doesn't mean we should not also maybe put into effect what is being proposed in this bill. You can have both of them, but at least you correct the problem or you're trying to bring a solution to the problem of their being understood without interpreters before the Supreme Court of Canada by at least insisting that they have to understand both official languages when they hear a case.

[Ujjal Dosanjh, Liberal, Vancouver South, BC]

So are you saying that until all the judges are absolutely fluently bilingual, this arrangement could fill the gap?

[Marie-Claude Bélanger-Richard]

Yes.

[Ujjal Dosanjh, Liberal, Vancouver South, BC]

But in my view, it shouldn't be forever--that's my concern.

[Marie-Claude Bélanger-Richard]

It could be forever, because coming back to what I pointed out earlier, when you select a judge, the fact that you say you're bilingual is just a check mark by the person. What I'm saying is that if you have these two dispositions, the one saying judges at the Supreme Court of Canada should be bilingual, or shall be bilingual when appointed to the Supreme Court of Canada, it's there. In the meantime, yes, you have the other requirement that any hearings involving both official languages have to be before judges who understand the two languages. But even after you have a full bilingual court, you can still have this as a measure. In any case, if at some point in time there was maybe an issue with a judge who might have been functionally bilingual and his linguistic capacity decreased over time, for whatever reason, at some point you'll have the protection that this person should not be qualified to hear the matter in the other language.

I don't think the two dispositions are really against one another. They can work together.

[Ujjal Dosanjh, Liberal, Vancouver South, BC]

With respect, they're a contradiction in terms. They're contradictory to each other in that as an interim measure it's a complementary measure, but as an ongoing measure it's contradictory to the intention of the objective of the original amendment.

[The Chair, Conservative, Ed Fast]

Thank you.

We'll move on to Mr. Moore, for five minutes.

[Rob Moore, Conservative, Fundy Royal, NB]

Thank you, Mr. Chair.

Thank you for being here as a witness today. I think you've had some valuable input, certainly. Greetings from a fellow New Brunswicker.

I have a couple of points. I think there has been a very good discussion. As we've stated as a government, our overriding priority when making judicial appointments, including those to the Supreme Court, has been overall competency. Certainly someone's ability to speak both official languages is a great boost, as you mentioned, to their overall ability, and I agree with that.

But we do have problems with this bill. Your suggestion of an amendment is rather novel. Even your suggestion, though, I take as an acknowledgement that as a country we're not there yet in all areas. In New Brunswick there is great opportunity to become proficient in both languages, but in many other areas there isn't. Also--and I had made this point to a previous witness--not everyone at a very early age knows that eventually they want to be on the Supreme Court of Canada. Some people may, but many don't, and many, while they may excel in many other areas and may have greatness in judicial competency, may not have taken on a second language.

I will refer again to what Justice Major said. He said, “The ideal, of course, would be to have a judge who was perfectly bilingual. But there are very few of those in the country.” He made the point that even those on the Supreme Court who most would consider functionally and fully bilingual would still, if hearing something that wasn't their original language, avail themselves of the use of interpretive devices. They would still want to have the benefit of an interpreter. Even those who we would hold up as an example of probably being okay under this bill--they're bilingual, they call themselves bilingual--might still not be bilingual enough to fulfill the requirement of this bill, which would be basically the ability to hear English or French equally and to not need the help of an interpreter. When dealing with very technical issues the interpreter is used, even for those who are bilingual.

What do you think about that?

[Marie-Claude Bélanger-Richard]

I agree with Justice Major that there are not a lot of people who are perfectly bilingual, who can reach that level.