Evidence of meeting #16 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 french.
A recording is available from Parliament.
Conservative
Attorney, As an Individual
Can I just add one quick sentence? There's a certain irony when you go into a courthouse—well, at least in Montreal, and I'm sure it's the case in the other courthouses too. There's absolutely no English outside the courtroom. But when you get into the courtroom, you can speak English. But when you leave the courtroom, your English doesn't exist, and that's a function of the reality of the situation in Quebec.
Conservative
The Chair Conservative Mike Wallace
Thank you very much.
Thank you, Mr. Casey, for those questions.
Thank you, witnesses, for those answers.
Now from the Conservative Party, we have Mr. Goguen.
Conservative
Robert Goguen Conservative Moncton—Riverview—Dieppe, NB
Thank you, Mr. Chair.
I want to thank the witnesses for sharing their insight with us.
Obviously, you have more than just judges and prosecutors in court. There are interpreters and stenographers as well. When we looked into the effectiveness of these Criminal Code provisions, one of the complaints we heard from several provinces had to do with the lack of translators and stenographers.
Do you have any comments or suggestions for the federal government with respect to improving the situation?
I'll leave that open to anyone.
As an Individual
I think post-secondary institutions need to be encouraged to train qualified interpreters for every region of the country. There were unacceptable situations in Alberta where the interpretation was inadequate. When the Alberta Ministry of Justice retains someone to interpret court proceedings, the person does not have to be a member of the Association of Translators and Interpreters of Alberta or other appropriate professional body. And the results are not acceptable.
In Alberta, I've seen that kind of thing happen at every level, from the provincial court to the court of appeal. For example, someone who is trying to earn a living can offer their services to the ministry even if they don't have the necessary education or if they have been trained as an interpreter or translator but not a legal one. We end up with people who don't know the terminology. If we are provided with an interpreter specializing in meteorology, well, it isn't the same.
I can assure you that in some cases where the accused is not represented by counsel, the Crown itself has recognized the problem. The Vaillant case in Calgary is an example of that. The judge, in other words, the Crown, recognized that the interpretation was so inadequate that, had the accused had a lawyer, that lawyer would have requested that the case be dismissed. Consequently, the charges were withdrawn. In fact, the Crown prosecutor had already corrected the interpreter once. The judge had done so as well, and by the end, even the accused had started correcting the interpreter. The accused even added that he should offer his services as an interpreter, so he could earn as good of a living as he did as a truck driver.
Conservative
Robert Goguen Conservative Moncton—Riverview—Dieppe, NB
The problem seems to be twofold. First, everyday French is not the same as legal French. Second, interpreters don't appear to receive the same training from province to province. French may be viewed as universal, but in order to ensure everyone has the necessary qualifications, what can we do to standardize the training that legal translators receive? Do you have anything to suggest in that regard?
Attorney, As an Individual
Very quickly, we have very strict guidelines on who can be an interpreter. We don't follow the American model in which anybody can walk in and there's a voir dire held to see if the person is a competent interpreter.
Attorney, As an Individual
Sorry. I mean Quebec, exactly.
It's highly regulated. Only one time in 23 years have I seen an interpreter whose quality was unacceptable. The judge just stopped the trial and we continued the next day with someone else. That's once in 23 years.
But in terms of the clerk, there's not much the court clerk has to say in the process. The court clerk is going to speak a little bit. For that court clerk to be able to speak in the other language, I can't see it being all that difficult.
Conservative
Robert Goguen Conservative Moncton—Riverview—Dieppe, NB
That covers one aspect, but again you're talking about a legal translator having a certain standard, and certainly it may be a high standard of Quebec civil law, whereas in the other provinces, you have nine that are French common law, and the terms—I mean if you're talking here about trust, and not to get into it—and the concepts are not always equivalent.
Attorney, As an Individual
Well, I presume each province regulates its interpreters, and each province decides who is a competent interpreter. I can't believe they don't.
Conservative
Robert Goguen Conservative Moncton—Riverview—Dieppe, NB
Well, I know Manitoba, for instance, has—
an organization that brings together the community of French-speaking legal experts.
Certainly at the
Université de Moncton, they have the Centre de traduction et de terminologie juridiques.
In Quebec, Manitoba, and New Brunswick it may not be a problem, but what do we do in little old Saskatchewan? I don't know. I wish I had the answer.
As an Individual
The same goes for training provided to French-speaking legal professionals. The training is not provided in all the provinces, but certain provinces have enough institutions that can help the others.
However, there is a problem when it comes to professions, which come under provincial jurisdiction, and not all provinces recognize the profession of interpreter or translator.
Ontario has a piece of legislation that recognizes the Association of Translators and Interpreters of Ontario. Its members have a code to follow and competency criteria to satisfy. However, that is not the case in Alberta. The Association of Translators and Interpreters of Alberta is not recognized by any legislation. Although the association has programs to ensure the quality of services provided by its members, the government does not even require those whose services it uses to be members of that association. So that's why there are problems. There must be a political will to ensure quality service and to figure out who should provide the training. Canadians increasingly have the right to mobility, since they can be trained in one province and work in another, as long as their language rights continue to be respected from one province to the next.
Attorney, As an Individual
I should tell you, though, that this is one of the reasons, although perhaps not “the” reason, we've gone away from the interpreter interpreting from mouth to ear, the way it used to be. Clearly nobody heard that. Nobody was recording that. So nobody knew if the quality of the interpretation was any good.
Now the interpreter has to interpret out loud and it has to be recorded, so at least the accused can come back and say, “Read this. I couldn't understand a word they were saying.”
Legal Advisor, Language Rights Support Program (PADL)
I attended the Caron hearing before the Court of Appeal of Alberta. I listened carefully and I took some notes on the interpretation. My colleagues were making their case, and I was listening and taking note of the translation. The situation was so bad that the judges stopped the hearing and requested new interpreters.
The legal errors were substantial. The term “droits civils et propriété” was translated by “civil law” instead of “civil rights”. I will spare you all the major errors I heard. The interpreters translated “théorie de l'arbre vivant” as “the tree is alive” instead of “living tree”.
That is what the judges based their decision on. You are asking what we honestly think and what your options are. This does indeed come under provincial jurisdiction, but the penalty can fall under the Criminal Code.
What happens if the defendant's right to a fair trial has been violated because the translation or interpretation was inadequate? The penalty can come under the Criminal Code.
Conservative
Legal Advisor, Language Rights Support Program (PADL)
Yes, but our mandate does not apply to all human rights.
Legal Advisor, Language Rights Support Program (PADL)
Section 2 covers freedom of expression. The federal government has some tools at its disposal despite the limitations imposed by provincial jurisdiction.
The Criminal Code can specify what is part of the process. This is crucial for human rights when it comes to sentencing hearings.
Conservative
Legal Advisor, Language Rights Support Program (PADL)
Yes, such as bail hearings. In the case of such rights, the Evidence Act is applied differently because some evidence is presented that would not be admissible to the trial and that has a major impact on the sentencing.
I was giving you examples of evidence being rejected in cases where constitutional rights were violated, but if you specified that it was a matter of a constitutional right—which is implicitly included—there could be profound implications.
Conservative
Conservative
The Chair Conservative Mike Wallace
Monsieur Goguen, thank you for those questions and answers.
Madame Péclet from the NDP, the time is yours.
NDP
Ève Péclet NDP La Pointe-de-l'Île, QC
Thank you very much, Mr. Chair.
I want to thank our witnesses for joining us. I think this is a very insightful discussion.
My first question is more general. You can probably make a very quick comparison. The question is for all the witnesses.
Based on your experience, what aspects have improved since the legislation was adopted? What aspects have unfortunately not been part of the discussions and were not part of the bill's passing, but deserved to be amended and included in the legislation's broad framework? Can you make a comparison between what is going well and what needs more attention? The goal of the study is to see what has happened since Part XVII of the Criminal Code was applied and what needs to be done to improve it.
As an Individual
The Criminal Code stipulates that provinces can adopt rules and regulations to ensure the implementation of rights, be it when it comes to part XVII or other parts. The legislation could perhaps specify that, in doing so, the provinces must hold discussions with representatives of minority communities. Normally, this should go without saying. The Regulatory Review Secretariat of the Alberta Executive Council has a policy to consult the people concerned, either in the commercial field or any other field. However, they do not hold consultations on legal rights, and especially not with minority communities.
We have asked to meet with the representatives of Alberta Justice to discuss certain issues—even those of a criminal nature. For a few years and a few more years to come, their position has been and will be not to hold discussions with representatives of the francophone community or with representatives of French-speaking legal professionals until the Supreme Court decides whether Alberta was justified in withdrawing the rights to justice in French in that province. This was done in 1988.
However, that does not affect the use of French or English before the courts. Those are two parts of the Languages Act. The francophone community has been punished for years. We have that in writing. You can read in our brief that individuals—often the Minister of Justice himself—have written a number of times to the Association canadienne française de l'Alberta and the Association des juristes d'expression française de l'Alberta to tell them that they would not meet with them until the Supreme Court rendered its decision on the Caron case, which has to do with the provision of justice in French.
They do not even want to discuss that. They request a meeting to discuss other considerations, such as whether they will have a transcript of the criminal hearing in French because, if not, the defendants will be denied their constitutional rights to make a full answer and defence. They do not allow any meetings. The last letter I received was very clear. They returned one of the letters I mailed two years earlier. They said that I had misunderstood and that this situation also applied to criminal law. I was told that, when the time came, I could write to the minister and not the Alberta Crown Prosecution Service.
So there is a lot of control in that area. You have quite a tall order before you to include in the Criminal Code a provision that would ensure consultations. For 10 years, I was the executive director of the Association of French Speaking Jurists of Ontario. I can tell you that we had a very good relationship with the Attorney General of Ontario and that consultations were exemplary. Ontario, since my time growing up in Ottawa and over the last eight years....