Justice Committee on March 4th, 2014

[The Chair, Conservative, Mike Wallace]

Ladies and gentlemen, thank you for coming. This is the Standing Committee on Justice and Human Rights, meeting number 14. It's supposed to start at 11 o'clock, and I do apologize to our witnesses for being delayed, but we had a vote in the House and we had to attend.

Pursuant to the order of reference of Monday, October 21, 2013 we're doing a statutory review of part XVII of the Criminal Code. We're doing two video conferences today, and I thank you for joining us, gentlemen. Just so you know, there will potentially be other votes that we may get called to, but my goal is to make sure that your testimony does get into the record.

From the Fédération des associations de juristes d'expression française de common law inc. we have Mr. Allan Damer; and from the same organization, Mr. Rénald Rémillard from Winnipeg, Manitoba.

Gentlemen, the floor is yours. You have 10 minutes each and we'll start with you, Mr. Damer.

[Allan Damer, President, Fédération des associations de juristes d'expression française de common law inc.]

Thank you, Mr. Chair. I would like to thank you for giving the Fédération des associations de juristes d'expression française de common law inc., or FAJEF, the opportunity to appear before this committee.

I will start by explaining a little bit about who we are and what our priorities are.

The FAJEF brings together seven associations of French-language jurists located in common law provinces outside of Quebec. They include Alberta, where I live, British Columbia, Saskatchewan, Manitoba, Ontario, New Brunswick and Nova Scotia. Our colleagues in Nova Scotia have [technical difficulties].

We act as the national spokesperson and [technical difficulties]. We provide support services to our members, and bringing together French-language jurists in all common law provinces is an advantage in terms of understanding the concerns of the regions [technical difficulties] and the flourishing of francophone and Acadian communities in Canada.

I will now tell you about the structure of the FAJEF, which brings together seven jurists' associations. [technical difficulties] sends a representative to sit on our board of directors. We have meetings around every two months and [technical difficulties] to collaborate on national initiatives.

In addition to my role as president, I sit on the board of directors as a member of the Federation of Francophone and Acadian Communities. The Forum of Leaders tasked with the Strategic Community Plan results from their commitment [technical difficulties] and three organizations come together...

[The Chair, Conservative, Mike Wallace]

Excuse me, sir.

Can you hold on for a second? We're having trouble with the audio.

I'm going to put you on hold, Mr. Damer.

Mr. Rénald Rémillard, we're going to go to you. We're going to see if we can fix the other issue from Edmonton. Sorry.

The floor is now yours, sir.

[Rénald Rémillard, Director General, Fédération des associations de juristes d'expression française de common law inc.]

Hello. My name is Rénald Rémillard, director general of the Fédération des associations de juristes d'expression française de common law inc. I am appearing today along with Mr. Damer, who explained a little bit about the mandate of the federation. I am appearing today as the director general of the federation.

We also have the Centre canadien de français juridique. I have noticed that in previous meetings, you have discussed the question of training participants in the justice system, be they crown prosecutors, probation officers or others. This is also the type of work that we do.

As I said, I am appearing along with Mr. Damer. I and Mr. Damer will be happy to answer your questions. We often receive feedback from our members and from French-speaking jurists concerning what is happening on the ground. So in that context we will be able to provide you with some comments concerning what is happening in certain provinces and we will be able to tell you what our members and what members of associations of jurists across Canada have said. That said, I will be happy to answer your questions.

[The Chair, Conservative, Mike Wallace]

Is that good, committee members? Then we'll go to questions.

Our first questioner will be Madam Boivin.

[Françoise Boivin, NDP, Gatineau, QC]

Thank you.

Thank you both for participating in our meeting. It's too bad, Mr. Damer, because we would have liked to hear your full speech. We hope to make that up through our questions.

My questions are fairly practical. After all, that is the goal of this exercise by the Standing Committee on Justice and Human Rights. We really want to see how part XVII of the Criminal Code is applied on a daily basis to those who work in the field. This is especially important for accused persons who are protected by that section.

What have the members of your association said about this practice on a day-to-day basis? What is the day-to-day experience? I understand that there are preliminary inquiries and trials. Some people have suggested that perhaps these protections should be extended to bail hearings, to people released on bail.

I would like to hear both of you answer, if the technical problem with Mr. Damer is resolved. I would also like to get an idea of how the minority groups experience this in the provinces, all minorities, that is.

[The Chair, Conservative, Mike Wallace]

Okay now? Yes, go ahead.

[Allan Damer]

I will answer your question. One key problem that we experience on a daily basis is the active offer of service. That is in the current Criminal Code, section 530.

Many of our members who are practising lawyers say that the active offer of service is not regularly provided. This means that an accused person appearing for the first time before the court or before a justice of the peace may not be advised of the fact that he has the right to a trial and other proceedings in the official language of his choice. So that is a huge problem.

[Françoise Boivin, NDP, Gatineau, QC]

Normally, how is this active offer provided?

[Allan Damer]

Let's say that the accused appears before a trial judge for the first appearance during his case. Under the Criminal Code, the judge must advise the accused of his right to choose the official language, French or English, in which he would like his trial to be held.

Generally, the judges base their decision on the person's name. So if the name of the person appearing appears to be francophone, for example Mr. Rémillard, the judge will advise the person of his right to be tried in the official language of his choice. If the person's name does not appear to be a francophone name, such as Mr. Damer, the judge may neglect to advise the accused person of his right.

We believe that the active offer of service must be done in every case. We cannot assume that because someone's name is Boivin they are necessarily francophone. Why would the judge not make an active offer of service to a Mr. Johnson, for example? Everyone should be able to exercise their rights.

[Françoise Boivin, NDP, Gatineau, QC]

As far as bail hearings are concerned, do you believe it would be a good idea to extend the protection of part XVII to that very important part of a criminal proceeding? In your opinion, would that be too complicated to apply?

[Allan Damer]

Applying that would certainly pose some practical problems.

In criminal law, if we want both official languages to one day have real equal status, we will have to continue working toward that goal on a practical level.

I am aware that there are many obstacles. For example, what happens when disclosure is not available in French and the accused is francophone?

Let's take the example of a particular case mentioned by some of our members in Nova Scotia. In the case of a conditional release for an accused person who is francophone, if disclosure is not available in French at the time of the person's appearance, that person can give up the right to French-language proceedings and agree to English-language proceedings, knowing full well that if he insisted on having French-language proceedings, the appearance would be postponed, and in the meantime, he would remain in detention. Such a situation is unacceptable in our opinion.

I don't know if my colleague Mr. Rémillard would like to add anything.

[The Chair, Conservative, Mike Wallace]

That's Madame Boivin's time.

From the Conservative side, Monsieur Goguen.

[Robert Goguen, Conservative, Moncton—Riverview—Dieppe, NB]

I would like to thank the witnesses for appearing today.

I would like to speak briefly about trials with a judge and jury. I would like to know if it's difficult to find francophone or bilingual jury candidates for a trial involving a judge and jury.

[Allan Damer]

I will let Mr. Rémillard answer your question.

[Rénald Rémillard]

Thank you.

That question has already been raised in some provinces. I know that Manitoba and British Columbia have looked into making up these juries. Each province uses different means. Manitoba, for example, uses health insurance card numbers to make up a list. The issue is to ensure that the list is representative of the general population. I know that poses a problem in some provinces. We have, for example, approached francophone school boards or spokespersons from member associations to make lists.

The issue of the make-up of juries has been a problem, but it is different from one province to the next. It is another example of Canadian diversity. What does that do? It makes things difficult if we want the process throughout the country to be identical. We must have some ability to adjust and respect the necessary basic principles.

As I said, the issue of juries has been raised on several occasions, but I have not heard many of our members talk about that. They are more worried that judges in some regions or provinces are not ensuring that the accused is advised of his or her rights. There is more talk about that issue. In some cases, we have talked about the juries, but there is less talk about that than the fact that the judges give out little or no information.

[Robert Goguen, Conservative, Moncton—Riverview—Dieppe, NB]

Mr. Damer, do you have something to add?

[Allan Damer]

In practice, the problem is more or less the same, be it for anglophones or francophones. Recently in Edmonton, a judge asked sheriffs to go out into the street to find anglophone jury members. It can be a problem regardless of the language of the proceedings.

[Robert Goguen, Conservative, Moncton—Riverview—Dieppe, NB]

Is there a province that has a model for training bilingual or francophone juries that is better than the others? Is there one that could be considered the best model?

[Allan Damer]

I do not know.

[Robert Goguen, Conservative, Moncton—Riverview—Dieppe, NB]

This is clearly not a problem in New Brunswick, because many people are bilingual, especially in urban regions, a little like in Ontario and Quebec.

[Allan Damer]

Mr. Rémillard just mentioned some examples from British Columbia and Manitoba. I think that in Alberta, they tried to use the list of people whose children attend francophone schools. In fact, thousands of students are registered in francophone schools. We take for granted that their parents are francophones and that they could be part of these juries.

From time to time, people call me to ask me if they should participate in a jury. Because of their careers, they can decide to participate or not.

[Robert Goguen, Conservative, Moncton—Riverview—Dieppe, NB]

To constitute a bilingual or francophone jury, could the candidates come from outside the judicial district? Is that done in some provinces?

[Allan Damer]

I do not have information on that. Perhaps Mr. Rémillard can give you some.

[Rénald Rémillard]

Various methods have, in fact, been proposed and used. I am aware of a case in Nova Scotia, I believe, a few years ago. Because they had not targeted the francophone population, through a school board or another means, they had to ask approximately 900 people, or practically the entire population. They were able to come up with enough people to constitute the jury, but they did nonetheless contact some 900 people, if I remember correctly. So a problem remains. I was told, unofficially, that francophones had stated that they did not speak French, because they did not want to do jury duty.

So there are sometimes problems in that regard. However, many solutions have been proposed in various provinces, even if they have not all been implemented, since they did not necessarily need to form a jury. In some cases, it remained purely theoretical. Nevertheless, I think that is done. Practices vary from one province to another.