Evidence of meeting #74 for Justice and Human Rights in the 41st Parliament, 1st session. (The original version is on Parliament’s site, as are the minutes.) The winning word was accused.
A recording is available from Parliament.
Liberal
Joyce Murray Liberal Vancouver Quadra, BC
What criteria are used in order to determine if the training of a judge or an expert is sufficient for them to be able to provide services to francophones? What is the current framework for that? Do they have to pass a test? What level is required? Can the accused say
that he wasn't understood?
Senior Counsel, Public Prosecution Service of Canada, Office of the Director of Public Prosecutions, Department of Justice
I can answer that.
In terms of the Public Prosecutions Service of Canada, our procedural manuals have very clear guidelines that specify that prosecutors must be capable of understanding the language in which the trial is taking place when it is a minority language.
Senior Counsel, Public Prosecution Service of Canada, Office of the Director of Public Prosecutions, Department of Justice
It can be to an extent but each prosecutor must declare themselves incapable if that is the case.
When we are hiring, and this is the case elsewhere in provincial services, obviously we make sure, through competitions and interviews, that the candidates are able to oversee a trial in French.
The problem isn't with the hiring but with what comes afterwards. Often, 18 months can go by without these judges overseeing a trial in French and then all of a sudden they have to do that. That was the case in British Columbia, for example. That is when the Access to Justice in Both Official Languages Support Fund becomes very useful, through the programs that Mr. Francoeur referred, to that are offered in Winnipeg and Toronto. We call upon these two schools to provide more training to those prosecutors that require a refresher course in French because they have not overseen a trial in that language in a very long time.
Furthermore, there are exchange services between provinces as well as between provinces and the federal government that provide these individuals with the opportunity to do internships in Quebec, for example, and to have the opportunity to oversee trials in French for a month. When they get back to their own province, they are able to work in that language comfortably.
Conservative
The Chair Conservative Mike Wallace
Thank you very much for those questions and answers.
Our next questioner, from the Conservative Party, is Mr. Wilks.
Conservative
David Wilks Conservative Kootenay—Columbia, BC
Thank you, Mr. Chair.
I'm just curious with regard to section 20 of the charter. To lead a little bit further on what Monsieur Goguen had to say, section 20 says:
Any member of the public in Canada has the right to communicate with, and to receive available services from, any head or central office of an institution of the Parliament or government of Canada in English or French....
The provincial courts within the provinces of British Columbia and Alberta are not under the head of Parliament, so there's no mandate for them. Would section 20 supercede subsection 530(1)?
Senior Counsel and Litigation Coordinator, Official Languages Law Section, Department of Justice
Actually, we're talking about two different spheres of activity. Section 20 of the charter, you're absolutely right, covers federal institutions. We have case law. Some accused have attempted that argument. I think it was in Nova Scotia where the accused was saying, I have a right under section 20 to a judge. The case law is very clear. Section 20 does not apply. Section 20 will apply first to federal institutions and will not cover what's in the judicial sphere. Section 20 is the extrajudicial, administrative sphere, if you like.
The case law in Nova Scotia, to come back to it, has concluded that provincial courts are not federal institutions covered by section 20 of the charter.
Conservative
David Wilks Conservative Kootenay—Columbia, BC
Thank you.
With regard to interpretation, the criminal code says interpretation will be provided in a preliminary hearing and trial on manuscript. Does it also require interpretation at present so that each of the accused and the witnesses will hear interpretation in real time? It doesn't seem to say that. It seems to say that it will be done by providing documents to legal counsel and/or the witness and/or the accused, but not heard in real time.
Senior Counsel and Litigation Coordinator, Official Languages Law Section, Department of Justice
If we look at the provisions, it's paragraph 530.1(f), “the court shall make interpreters available”, etc. My understanding is that, say, we're conducting a trial in the French language, the accused has asked for a trial in French, and there's a witness, an anglophone, who has a right under paragraph 530.1(c) to testify in his official language, he will do so. The accused can then ask for, and the court will have to provide, interpreters for the accused so that he can hear the live translation of what that witness is saying.
Conservative
David Wilks Conservative Kootenay—Columbia, BC
Okay.
There just seems to be a little conflict between (f) and (g).
Senior Counsel and Litigation Coordinator, Official Languages Law Section, Department of Justice
Well, (g) deals with the record of proceedings. So, when there is translation it will have to be part of the record of proceedings.
Conservative
The Chair Conservative Mike Wallace
Thank you for those answers.
Mr. Marston from the NDP, you're next.
NDP
Wayne Marston NDP Hamilton East—Stoney Creek, ON
Thank you, Mr. Chair.
I'm going to go a little further on one point that Mr. Mai started on.
The demographics of our country are starting to change. I was struck by the irony that in Canada's first couple of centuries we had exploration by francophones that took them to the Saskatchewan-Manitoba area. The oil sands are now taking francophones further west, which brings the series of problems we're talking about to areas that have not traditionally had to deal with them.
I'll go back to Mr. Mai's questions about the statistics. Mr. Doyle, you spoke about some of the barriers to prosecution, to expediency, and a number of quite legitimate reasons I suspect, on the part of the accused—
Conservative
The Chair Conservative Mike Wallace
Mr. Marston, I'm going to have to interrupt you. I'm sorry.
The bells are now ringing. It's a half-hour bell. The rules are that we need the unanimous consent of the committee to proceed through the bells. I only have Mr. Marston left as a speaker, just so people know.
We can finish with Mr. Marston's five minutes, and then call it a day, or whatever you'd like to do.
Conservative
Conservative
The Chair Conservative Mike Wallace
Now we have two speakers, Mr. Calkins is on there.
I have to adjourn the meeting unless somebody moves to extend past the bells.
Mr. Mai has so moved. Do I have unanimous consent for another fifteen minutes?
NDP
Wayne Marston NDP Hamilton East—Stoney Creek, ON
Everybody is so nice.
My concern is that when you were asked about the statistics, and that we'd have to go to the provinces to garner them, are we pulling up short on this by not keeping our own statistics, or is that such an onerous task that maybe it.... It strikes me that if we're going to address the changes that may still potentially be out there, we'd need statistics to prove it.
Senior Counsel, Public Prosecution Service of Canada, Office of the Director of Public Prosecutions, Department of Justice
The problem is that in this federation nobody counts a case the same way.
Prosecutors will say that a case is against one individual, no matter how many charges. The police, for their own reasons, are going to say there is a case for each charge. Court administrators are going to go somewhere in between, or one or the other. Prosecutors are pretty much united on that, but we regularly meet at the federal and provincial levels and we get along.
The police—municipal, provincial, or RCMP as municipal in contract provinces—have different perspectives on things and count things differently. Often it's just a matter of getting resources. It's better for them if they put it one way, rather than the other. The court administrators work the same way as well.
It's something that has bedevilled the federal organization that compiles court statistics. They use the numbers that are provided, but they are very unreliable because of that. The police can say there are 9,000 cases in Ottawa, but provincial and federal crown are going to say there are only 60 or 600 or whatever.
Senior Counsel and Litigation Coordinator, Official Languages Law Section, Department of Justice
They may be unreliable because of another point, which my colleague mentioned in his speaking notes. In New Brunswick, and maybe in some regions of Ontario, the trials will happen in the minority language without a formal order under section 530.
NDP
Wayne Marston NDP Hamilton East—Stoney Creek, ON
That's exactly where I was going to go next.
I was born and raised in New Brunswick. I see there is an exception in here, and there is section 531 for the change of venue.
