Justice Committee on Nov. 4th, 2009

[The Chair, Conservative, Ed Fast]

On that request, that's what we will do.

We'll move on to Monsieur Lemay.

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

I don't want to dwell on this at length, but I simply must respond to Mr. Petit's comments and take apart his arguments one by one.

I have 30 years of experience as a lawyer and I have argued cases in front of courts of all kinds, even the Supreme Court. I can assure you that if you are arguing a case in front of the Supreme Court, and are speaking quickly in French or having an exchange with another justice—the Hon. Justice LeBel, for example—the Right Hon. Justice Beverley McLachlin will have no choice but to interrupt you and ask you to slow down, because the interpreter is unable to follow. That is something I have the utmost respect for.

I could cite dozens of examples for Mr. Petit and colleagues opposite. There is not one lawyer anywhere in Canada who knows, the day he is sworn in, whether he may one day become a Supreme Court justice. That is impossible. If someone right here at this table or somewhere else tells me that, one day, he will be appointed to the Supreme Court, well, he is lying. An appointment to the Supreme Court is the pinnacle of a legal career. One is called to the Supreme Court. Let me draw a parallel here: it is like being chosen to be the next pope. Very few people could even think that, one day, they might be appointed to the Supreme Court.

However, with all due respect for Mr. Petit, I know of no judge in Quebec who is unable to conduct a trial in French and in English. I know that because, as Bâtonnier for my region, I sat on committees looking at judicial candidates. As soon as you get to the level of the Court of Quebec and the Youth Division, judicial candidates are asked whether they are able to speak and understand English.

So, I must say I am a little surprised to hear today that Supreme Court justices may not be able to follow a debate without the assistance of interpreters. In my opinion, this is a very good bill which will have repercussions—I readily admit that. An appointment is made to the Supreme Court only once every five or ten years. People who aspire to be appointed to the Supreme Court will have to start preparing now. The evidence was clear when the last appointment was made. No one, in Quebec or elsewhere, said that the justice who has just been appointed, and whose name escapes me for the moment, understands French. He may be able to follow a conversation or an exchange, but we believe—and I am saying this on behalf of Quebec—that an example has to be set at the top, so that it is possible to argue a case in both languages at the Supreme Court. Exchanges will be greatly facilitated as a result.

With all due respect for the Hon. Justice Major—and heaven knows, having argued a case in front of him, I have a great deal of respect for him—there is one thing he didn't say, and that is that during the sessions where Supreme Court justices get together to discuss cases—they meet as a group of nine or seven, depending on the bench that will be hearing the case—their discussions take place in English 92% of the time, because the majority of cases that come before the Supreme Court are obviously cases from English Canada. I say that with the utmost respect.

I see no problem in passing this bill, through which a good example will be set. Candidates who aspire to an appointment to the Supreme Court now have 5, 10 or even 15 years to prepare. If this bill passes, they will have 15 years to prepare themselves.

I was listening to Justice Beverley McLachlin. She is an anglophone who took immersion in Quebec, in the Lac-Saint-Jean area. I would have invited her over for a conversation in French. She would be perfectly capable of holding such a conversation, as would eight of the nine current justices.

In my opinion, this is a non-debate, a non-issue, and we need to send a clear signal. That's why I invite all of you to support this bill.

[The Chair, Conservative, Ed Fast]

Thank you.

Next we have Mr. Woodworth.

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

I'll withdraw my request.

[The Chair, Conservative, Ed Fast]

Okay.

Mr. Murphy.

[Brian Murphy, Liberal, Moncton—Riverview—Dieppe, NB]

Thank you.

I think what we have here is a perception that there is a taking away of a right or representational right for persons from provinces, or for provinces themselves, to be represented on the Supreme Court of Canada.

I think it's important to say that the composition of the Supreme Court of Canada is wholly a discretionary and political operation. There is nothing in the law, not even to the status of a convention, that suggests, outside of Quebec, there should be certain members of the court from certain regions of the country. It's followed, but it's not always followed.

There is some consternation in some quarters when a certain province's time comes up and it is not picked. But even if it were the case that there was an expectation to be represented on the Supreme Court, we are talking about the collision of a provincial aspiration or personal ambition with an individual right. I firmly believe that there is nothing more important than the individual's right, before the highest court in the country, to know that his or her case will be heard and understood properly.

Now I also understand, and Mr. Petit makes the point very clearly, that it's not a perfect system and it excludes in some cases qualified candidates for even candidature for the highest court. But Mr. Lemay makes the good point that one can learn the language in the course of their legal career. Let's talk about the top nine jurists or legal people in the country. Surely they have the acumen to at least learn to understand the language. For a Supreme Court judge to be on the bench, it is not a case of proficiency in oral capability, but in understanding, which means to read and understand the language.

Finally I would say that the solution—and I've discussed this idea with Mr. Petit, Mr. Moore, the Minister of Justice, our own critic Mr. LeBlanc, and Mr. Godin—is this, and I want to put it down as a marker. The law lords of England have just been retired and made into the supreme court of the United Kingdom, with 12 members. There is a myth in Canada that because the Supreme Court of the United States consists of nine judges, we have to have nine and only nine judges and that they have to sit all at the same time on all questions. All of you know that in the courts of appeal across this country, which work pretty well, there are many more court of appeal judges than sit, in a bank of three or five, depending on the issue. And this works quite well. It's really something the government should look at as a policy, Mr. Moore—parliamentary secretary, highest-ranking official here.

That is my closing point.

Of course, I would like to congratulate Mr. Godin on his private member's bill. Dominic and I are very proud to be part of your family, the family of New Brunswickers fighting for linguistic equality across this country. We are on the same side in this battle, even though it's a different story when it comes to politics. In any case, congratulations.

Thank you.

[The Chair, Conservative, Ed Fast]

Thank you.

We now move to Mr. Comartin.

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

I'll just make a few points. I won't be very long.

I think this whole discussion that I'm hearing, mostly from the other side of the room, is focusing on the interests of the legal profession and the judiciary and what is in their interests. Our role as parliamentarians is to pass laws that are in the interests of our communities and our citizens. They're our absolute, primary, first consideration. It seems to me that every Canadian has the right to expect that if they have a case that ends up in front of the Supreme Court, it will be heard by judges who understand fully what is being said.

There was a reference to Italy. I was in Italy this spring. I believe our interpreters are among the best in the world just because of the experiences I've had in various parts of the world using interpretation. But it happens that they make mistakes. They misinterpret.

In one session, we had a university professor who was more than a little long-winded. He went on--I timed it--for the better part of a minute, a minute and a half, and the interpretation lasted for about six or seven words.

So that happens from time to time. We can't rely on guaranteeing to our citizens that interpretation will always be the best.

The other point I want to make, Mr. Chair, and this is specifically to Mr. Rathgeber, is that I've now sat through the last four appointments to the Supreme Court. I think I've said this before, but I want to repeat it, because obviously Mr. Rathgeber didn't hear me the last time I said this. None of those appointments were from Quebec. The breakdown is one from the Maritimes, three from Quebec, three from Ontario, and two from the west and the territories.

So I've sat through the last four appointments that came from the other three regions and not from Quebec. In each one of those cases, in each one, we had more than enough qualified candidates who were fluent in both official languages. And I mean fluent in both official languages; all of them who were judges—not all of them were—at the lower court were already conducting trials.

That included candidates from your province, Mr. Rathgeber.

So it's not a question of availability of qualified candidates. That's not a fear we need to have, because they're there.

I want to conclude by echoing Mr. Lemay's point about the leadership that I think we will see coming from this bill being passed and brought into law. I'm going to use my own law school as an example. There's discussion going on at my law school to begin to teach some courses in French. We're not a bilingual law school at all, at this point, but there is some discussion about that happening.

I think if we pass this law and actually get it into effect as a full amendment to the current legislation for the Supreme Court, we will begin to see more and more of that. We'll begin to prepare more and more candidates in the legal profession to be able to speak both languages and to function in both languages in our courts.

Thank you, Mr. Chair.

[The Chair, Conservative, Ed Fast]

Thank you.

We'll go to Ms. Jennings.

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

Thank you.

As a lawyer, as someone whose mother tongue was French and who became anglicized, if I can call it that, through the then-religious-based school boards in Quebec; as someone who has presided over public inquiries throughout the province of Quebec—probably in the nature of 30 to 50 over which I actually presided and an additional, equal number in which I was part of the bench, as part of the Quebec Police Commission—I can tell you that the colleagues with whom I sat who were unable to hear the witnesses who were testifying in English or hear the arguments of the lawyers who were presenting them in examination or cross-examinations without the filter of translation, and we had excellent translation as well, were quite envious. That's the first thing.

Second, I repeat and support what Mr. Comartin had to say: that our primary interest here is our citizenry. Our citizenry has the right to expect that their case and their documents will be understood in whichever official language they were submitted in, and that whoever is adjudicating will not require the filter of translation in order to understand those documents in their original language.

Finally, I'd like to say that if we truly believe in bilingualism; if we truly believe in the official languages here in Canada, then there is no better symbol or sign that can be swept across this country to all of our citizenry—those who are already breathing on this earth and those who are to come in the future—who aspire to a career in the legal profession and may at some point develop an aspiration to the highest court of the land, than to encourage them and encourage their parents to encourage them to learn both official languages and to become proficient enough in the language that is not their mother tongue to be able to actually preside without translation.

I support Mr. Godin's private member's bill wholeheartedly. I will be voting in favour of it and would encourage all of my colleagues to do so.

Thank you.

[The Chair, Conservative, Ed Fast]

Thank you.

Mr. Woodworth.

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

I apologize for changing my mind.

Mr. Chairman, in answer to the point raised by Mr. Godin, I don't speak French very well—that is clear—but I believe I fully understood everything that was said in French today, as well as what Mr. Godin said, with the assistance of translation.

Second, I am somewhat mortified that we are considering a bill of this nature without anyone's referring to the primary role of the Supreme Court of Canada, which is a unifying role. The Supreme Court of Canada is a national institution that exists to unify laws across Canada. It is, in that sense, completely dissimilar to provincial courts of appeal. For my part, at least, that unifying role of the Supreme Court of Canada is so important that I would suggest it will not be accomplished effectively by excluding large segments of our population from eligibility on the basis of ordinary linguistic proficiency.

I really do feel strongly that this issue involves not just the question of the rights of litigants, who would be well served by a court of nine justices who will have varying degrees of proficiency in either language but who together will be able to yield sufficient justice to all litigants, and that we should not consider the overarching question of making this an inclusive court.

Thank you.

[The Chair, Conservative, Ed Fast]

Thank you.

We're going to go to Monsieur Ménard.

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

My mind is already made up on this bill, but seeing how the discussion has been evolving, I think it's important to remind people of something which is not a criticism, but rather an observation, and perhaps you will then have a better understanding of my fundamental option.

In the Canada that I dreamt of when I was young, I did not believe that the Supreme Court had a unifying role. I believed that, quite the contrary, it would recognize the two distinctive legal cultures—the civil law and the common law—and be able to apply them differently, when warranted. The evolution of two cultures, united and moving forward in parallel—sometimes in war, and at other times to attain certain goals—presupposes that they will continue to evolve in parallel fashion while remaining distinct one from the other: the civil law and the common law, and the social evolution of one compared to the other. I understand that you see the Supreme Court of Canada as a unifying institution. However, there is a fine line between a unifying and an assimilating role.

Furthermore, you do not understand that a significant segment of the legal profession in this country does not have access to the Supreme Court. Must I remind you that this was the case for Quebeckers? Since Confederation, no Quebecker has been eligible for an appointment to the Supreme Court of Canada without being perfectly bilingual and proficient in the two languages. You consider that to be terrible, and I recognize that. You are now starting to understand what Canada was, what we would like it to be and what I myself recognized at one point in my life, which was that the dream I had of Canada when I was young would never be realized; and thus I preferred that we remain good friends and cooperate in a whole host of areas, with each one remaining sovereign.

[The Chair, Conservative, Ed Fast]

Thank you.

We will move on to the vote on the clause.

(Clause 1 agreed to: yeas 6; nays 5)

Shall the title carry?

It will be a recorded vote, Madam Clerk.

(Title agreed to: yeas 6; nays 5

Shall the bill carry?

It will be a recorded vote.

(Bill agreed to: yeas 6; nays 5)

Shall the chair report the bill to the House?

Do we need a recorded vote?

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

On a point of order.

It would be preferable to ensure that the translation is accurate on the agenda.

[The Chair, Conservative, Ed Fast]

Repeat the question, please. I'm sorry.

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

It is not a question. I am just pointing out that what you are reading from the paper that was circulated contains a mistake in French. Translation has its limits. It should say: « Le comité ordonne-t-il au président... ».

[The Chair, Conservative, Ed Fast]

I'm assured that will be taken care of.

Shall the chair report the bill to the House?

[Some hon. members]

Agreed.

[The Chair, Conservative, Ed Fast]

That takes care of Bill C-232.

Congratulations, Monsieur Godin.

[Some hon. members]

Hear, hear!

[The Chair, Conservative, Ed Fast]

We're going to move to the next item on the agenda, which is to hear our two additional witnesses on Bill C-36.

Could I have Don Head as well as Professor Allan Manson take their seats?

Thank you.

Mr. Don Head is here representing Correctional Service Canada. He's available to answer questions. We also have Professor Allan Manson from the Queen's University faculty of law.

Both of you know the drill, I think. If you have a presentation to make, you have up to ten minutes. Otherwise, we'll leave the floor open for questions from our members.

Mr. Head, did you have any presentation to make?

[Don Head, Commissioner, Correctional Service Canada]

Mr. Chairman, if it's fine with you, I think the committee knows who I am and what I represent. I'd be glad to answer any questions and defer any time to Mr. Manson for his comments.

[The Chair, Conservative, Ed Fast]

Mr. Manson, I take it you have a presentation.

You have ten minutes.