Mr. Chair, I'll briefly summarize what I outlined in May. I may add a few things, based on how the provinces have responded.
Again, I'm the chief of the executive secretariat of the Public Prosecution Service of Canada, and the national secretary to the Federal-Provincial-Territorial Heads of Prosecutions Committee, which on occasion has dealt with the language provisions of the code and how to implement them.
I was also, for almost 20 years, on the the other side, the defence bar, representing mostly francophone clients throughout Ontario beginning in 1983 right up to 1998. It was mostly in eastern Ontario but also in places like Sudbury, Pembroke, Kingston, Brockville, and Toronto.
The one thing I did mention the last time but which I think I need to reiterate is the fact that when a person is charged, the main things they want are to make bail and to eventually get off from the charges that have been laid against them. For that purpose, they'll do anything they deem necessary to ensure that result, even if that means, for example, hiring a unilingual anglophone counsel if that person happens to be the expert in their area.
Usually when a person is charged or is arrested, they of course get to call their lawyer, and they're provided with a list of counsel who specialize in criminal law. They may or may not see a French name on the list, or they may see a name like mine, which is anglophone but the person is still bilingual. So they may or may not fall on someone who is bilingual.
The other thing of course is that they may have heard of an expert. In areas such as impaired driving or drug offences, for example, there are certain members of the local defence bar who are known to be knowledgeable in the area and of course are known to obtain good results for their clients. If that means they will not avail themselves of the rights that are afforded to them in part XVII of the code, well so be it. They'll just do it that way. As you know, a lot of francophones outside of Quebec speak passable or excellent English, and as a result it's no big thing for them to proceed in that language if that means having the best legal help available. Even when they do have bilingual counsel, they may still think it might not be a good idea to invoke the linguistic provisions of the code, because doing so might anger the judge or the system or something, and it might not be something that will produce a favourable result for them. That's one thing.
The other thing is something that was raised by James Cornish, the assistant deputy attorney general of Ontario, in a reply to the clerk of this committee. The manner in which the linguistic rights are communicated to the accused varies. I mentioned in May that there was an oversupply of bilingual judges and prosecutors throughout Canada, but as Mr. Cornish mentioned, these resources are not always matched with the demand. Obviously, one of the reasons is that a minority language speaker will retain anglophone counsel, but the other reason may just be that the expert is not in that locality, and the judge or the prosecutor and so on...and then we get some kind of a disconnect.
The main problem is matching available resources and demand, where there is demand. There still is not a comprehensive solution for this problem.
The other problem I would like to raise deals with so-called bilingual trials. Eastern Ontario and New Brunswick aside, it is quite rare that trials are held entirely in the language of the linguistic minority. The same is true for English trials in Quebec. The reason is quite simply that, often, the witnesses in a case, whether the police officer who made the arrest, the individual who carried out the investigation or eye witnesses, can be anglophone for the most part. Take, for example, a case that might take place in Brockville. If the accused is a francophone Quebecker passing through, they may be able to find a bilingual lawyer, but in the end the trial will be bilingual.
The trial may also be bilingual because there is more than one accused. Prosecution services tries to make sure that one case results in one trial. In other words, if a police raid results in the discovery of drugs and weapons, then there will not be a separate trial for each of the 30 accused. We will try to have one or two trials for all of the accused together. Some accused individuals invoke part XVII of the Criminal Code and demand that their language rights be respected but others do not, because their language is that of the majority.
How then does one manage issues such as objections to the admission of evidence? If, for example, an individual testifies in one language and then the prosecutor decides to object to what that witness said because it may be hearsay, or because of any other legally valid reason, how does the judge respond? How will other prosecutors, in other words the lawyers, assigned to this case respond and in what language will they do that?
These are all questions that have not been fully answered yet and that, in some cases, can lead to abuse. Often lawyers assigned to these cases are very bilingual, but it can happen that the colleague of a lawyer representing a francophone client will raise an objection in English and that, in order to participate in the debate, the lawyer for the accused will then speak English. The result is that the francophone accused no longer understands what is being said. It is hard to find solutions to these kinds of problems. One has to proceed on a case-by-case basis. It is therefore important, both for the judge presiding over the trial as well as for the prosecutor, to comply with the provisions of sections 530 and 530.1.
It's also important for crown counsel to adhere to specific policy directives that are supposed to guide how they're going to respond to a suggestion such as this. For example, the Public Prosecution Service of Canada currently has the federal prosecution service desk book, which is a thick binder of guidelines. There's a full chapter on bilingual or minority language proceedings. It tries to cover most of the situations that can arise in the course of a criminal trial, a preliminary hearing, or even a bail hearing. It tries to offer some direction or guidance as to how to respond to a given situation.
I just wanted to add these few things in light of what had transpired since May.
I'm open to questions, but basically, that's the statement I wish to provide.