Evidence of meeting #13 for Justice and Human Rights in the 41st Parliament, 2nd Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was accused.
A recording is available from Parliament.
Director and General Counsel, Official Languages Directorate, Department of Justice
Perhaps I can give some reaction.
In reading the six letters, there are some common issues that are raised or non-issues that are mentioned. For example, in a few letters they simply say that generally speaking, there are no significant or major problems. However, this is not to say there are no issues. Of course, they talk about interpreters, translators, les sténographes—I forget the word in English. Many of them say there are few demands for trials in the language of the minority. Again, this is on the basis of six letters out of a possibility of thirteen.
Many of them also mentioned that the amendment in subsection 530(3), which requires that the judge ensure that the accused is informed of his right to a trial in the language of his choice at his first appearance before the court, is a useful one. In some provinces, for example, I think it's in Saskatchewan, they produce a script which every judge will read out to the accused at his first appearance.
In Ontario they say the application varies. Sometimes it's the judge, sometimes it's the prosecutor. That duty is being implemented, although they do say that not only does it vary in terms of who ensures that the duty is met, but the implementation of that provision is not done across the board. I understand there are still cases where subsection 530(3) is not, I guess, fully implemented.
When I talked about the script, it wasn't Saskatchewan, it was Yukon. Sorry about that. The other thing as well is that Saskatchewan asked for clarifications, and we addressed those earlier.
In the case of Ontario, I did mention the fact that over and above the fact that the way subsection 530(3) is implemented varies and that it's not necessarily across the board, they did say that more efforts are needed, more work is needed. As you may know, they have a committee, in fact, two. The second one is now working on more measures, more specific action, to ensure a full implementation of sections 530 and 530.1. So Ontario does acknowledge that a lot has been accomplished, but there's still work to be done to improve those provisions, and a committee has been assigned to that task.
Conservative
Bob Dechert Conservative Mississauga—Erindale, ON
If I could interrupt you, you mentioned the Ontario response. They did point out a potential amendment to the legislation. Do you have any comment on that?
Senior Counsel, Litigation Coordinator and Supervisor, Official Languages Directorate, Department of Justice
I do. I remember seeing this letter, and in fact, if you look at the case law, it's not a problem. No, it's not a problem.
Conservative
Bob Dechert Conservative Mississauga—Erindale, ON
Okay. They mentioned they had never actually seen this problem—
Senior Counsel, Litigation Coordinator and Supervisor, Official Languages Directorate, Department of Justice
No, exactly.
Conservative
Bob Dechert Conservative Mississauga—Erindale, ON
—arise in practice, but they thought it might. But in your opinion, no amendment is necessary.
Senior Counsel, Litigation Coordinator and Supervisor, Official Languages Directorate, Department of Justice
No, the case law is pretty clear. When there's an order for a trial, whether it's a bilingual trial or a trial in the official language of the accused, the prosecutor and the judge must use that language almost exclusively. So it's not an issue.
On the Ontario letter, we were quite surprised, or happy I should say, because that was the purpose of the amendment, to extend the right of the accused to all accused, the right to be advised. So, yes, the purpose was to extend this right to all accused, but the purpose was also to allow for this flexibility to exist on the different ways that we can inform accused persons. In Ontario, it confirms that, yes, we appreciate having this flexibility. In some cases, it will be oral, it will be done by the judge. In other cases, it will be a printed notice that's handed out to the accused, or defence counsel will ensure that....
Yes, that's all I wanted to add.
Conservative
Conservative
Bob Dechert Conservative Mississauga—Erindale, ON
With respect to Saskatchewan, first of all, I would say that I'm also surprised that they're having problems with resources, given that I understand the economy of Saskatchewan is doing very well these days. Presumably the Government of Saskatchewan has resources to put towards their obligations in this regard. They mention the relatively small number of bilingual prosecutors, judges, and court officials that might result in a delay in French bail hearings, and that's obviously a concern.
What is your comment on that? What part of that is a federal responsibility? What would you recommend be done about that to improve that situation?
Senior Counsel, Litigation Coordinator and Supervisor, Official Languages Directorate, Department of Justice
It kind of comes back to the question raised by your colleague. Bail hearings per se are not covered by sections 530 and 530.1. I was happy—
Conservative
Bob Dechert Conservative Mississauga—Erindale, ON
Would you suggest that they should be, that the amendment—
February 25th, 2014 / 12:20 p.m.
Senior Counsel, Litigation Coordinator and Supervisor, Official Languages Directorate, Department of Justice
That issue came up when we were consulting the provinces prior to Bill C-13. We decided that to extend at that point was not a good idea basically because provinces were telling us that they still had problems ensuring a full implementation of the current language regime, so they didn't want us to extend at that point in time. The plan was to help the provinces and help the different stakeholders, for example, with the funds that Maître Francoeur has talked about, the support fund.
Conservative
The Chair Conservative Mike Wallace
Thank you very much.
Mr. Godin from the NDP, the floor is yours, sir.
NDP
Yvon Godin NDP Acadie—Bathurst, NB
Thank you, Mr. Chair.
Welcome to the committee.
I am not a regular member of this committee. I dare say that I am not a lawyer either. Lawyers generally like to tell you that they are practitioners of the law, but I am telling you that I am not. I am a regular member of the Standing Committee on Official Languages, and what is going on these days matters to me.
I would like to read an excerpt from briefing notes prepared by the Library of Parliament's employees. At issue is the language spoken by the accused and part XVII of the Criminal Code:
The power to legislate in the area of official languages was not formally enshrined in sections 91 and 92 of the Constitution Act, 1867. It is an ancillary power related to the legislative authority of Parliament and the provincial legislatures over the fields assigned to them. Parliament has jurisdiction over the criminal law, and in 1978 it approved part XVII (language of accused) of the Criminal Code. The then Minister of Justice clearly stated the purpose of the original wording of the provisions of part XVII: It seems to me that all persons living in a country which recognizes two official languages must have the right to use and be understood in either of those languages when on trial before courts of criminal jurisdiction.
I am sure we can agree that for some provisions of the Criminal Code, provincial courts have jurisdiction. I noticed that you never mentioned Alberta. I do not know whether that was deliberate. I am not accusing anyone; you are not in the dock.
Senior Counsel, Litigation Coordinator and Supervisor, Official Languages Directorate, Department of Justice
I believe Alberta has not responded.
NDP
Director and General Counsel, Official Languages Directorate, Department of Justice
Actually, it did respond.
Senior Counsel, Litigation Coordinator and Supervisor, Official Languages Directorate, Department of Justice
It is true, it did respond.
Senior Counsel, Litigation Coordinator and Supervisor, Official Languages Directorate, Department of Justice
Yes, it stated that there were no real issues. I have the letter in front of me.
It says, “Generally speaking we are not having any difficulty meeting” the 2008 amendments.
It is a very short letter.
Director and General Counsel, Official Languages Directorate, Department of Justice
If I may, I would like to specify that the province mentioned only one problem. At the end of the letter, it mentions transcribers.
NDP
Yvon Godin NDP Acadie—Bathurst, NB
I do not agree with that. I think it would be relevant to provide some examples. You must be familiar with the Caron case in Alberta. There was also the case of a man from Tracadie-Sheila, in my riding, who found himself before the courts without having been informed of all of his rights. Unless I am mistaken, you stated that it was the judges' responsibility to inform accused persons of their right to be heard in the language of their choice. This man from Tracadie-Sheila found himself before an English-language court, and his trial took place in English. When he challenged this and asked for a trial in French, the judge replied that he believed the accused was proficient enough in English for the trial to be held in that language and that everything had gone well. Who is he to make that call?
This case posed such a significant problem that the Commissioner of Official Languages conducted an investigation. If I remember correctly, his finding was surprising: it was as though the law did not protect the accused. However, that is not what you just told us. You stated that individuals have a right to a trial in the official language of their choice no matter where they are in Canada. This right does not date back only to 1978. I do not want to hear about the $40 million or $60 million that were provided in funding; I want to talk about the law.
Earlier, I deliberately mentioned that I am not a lawyer. I am a regular Canadian with no training as a lawyer. If I were to find myself before the courts, the judge would decide whether I go to jail. We are talking here about courts of law, not about whether a province should decide whether trials should be held in English or in French. There are two official languages in our country, and it is subject to the Criminal Code of the federal government.
I can provide you the documents of this case where the judge told the accused that he believed the accused was sufficiently proficient in English and the trial would go ahead, and then he sentenced the accused to four years in jail. This was so problematic that the Commissioner of Official Languages conducted an investigation into the case.
I would like to know your opinion on that. What went wrong in the case?