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.
Ève Péclet NDP La Pointe-de-l'Île, QC
Do you agree with Ms. Loranger? Do you think penalty provisions should be included in the Criminal Code for violations of language rights?
As an Individual
That would be our first recommendation. The violation of the right to be informed of one's language rights should have consequences. If there are no consequences, this will not be an important right for those considering it.
Conservative
Attorney, As an Individual
To answer your last question first in terms of consequences, although I think it's extremely, incredibly important, I'm very confused as to how you could put consequences for the non-respect of a certain right. You don't have that in the Criminal Code. I can't think of anywhere in the code where you have that. If there's a charter right that is breached, ask for a remedy under the charter. That's why we have subsections 24(1) and 24(2).
I think the real question is not necessarily what's in section 530, or what's in this part. The real question is, what is the intent and what is the feeling of the government? That's the real question. Are they prepared to give trials in the other language? If you have judges of whatever jurisdiction, and they value it, you're going to get that trial. If you don't, you may have a problem. The question is, we should remove.... It should not be a question of, well, maybe you have a right, maybe you don't. It should be clear in the magistrature that, of course, you have a right to a full, in my case, English trial.
NDP
Ève Péclet NDP La Pointe-de-l'Île, QC
Would you argue that the judges have to be personally obligated to inform the accused of his rights if he's not represented?
Attorney, As an Individual
Yes, but even that, that's like the beginning. You have a right to a trial in English.
So, now, we will begin.
Attorney, As an Individual
But he doesn't understand. He doesn't understand what's part of the trial. He doesn't understand. Does he get a document or does he not get a document? Can he cross-examine in English? He doesn't know that. He doesn't know any of those things.
NDP
Ève Péclet NDP La Pointe-de-l'Île, QC
But now are you talking about the lack of resources or the implications of—
Attorney, As an Individual
No. For us it's not a question of resources. I don't see at all the question of resources, definitely not in Montreal, and definitely not in the surrounding regions of Montreal. The resources are there. It's possible you could do an English trial at the drop of a hat. The question is, do you really want to do an English trial? That's the question.
Conservative
As an Individual
I just have a brief interruption.
The problem is the lack of specified issues under the code. As has been mentioned through the experiences of the lawyer beside me, it becomes a political will to find the resources and have a debate. People are voluntarily blinding themselves, but it doesn't mean the problem doesn't exist. Therefore there would be a need to specify or have a framework to at least show what the boundaries are, or if not, what the choices are.
Conservative
The Chair Conservative Mike Wallace
That's more than your time.
Thank you very much.
Our next questioner is Mr. Wilks from the Conservative Party.
Conservative
David Wilks Conservative Kootenay—Columbia, BC
Thank you very much, Mr. Chair.
I thank the witnesses for being here.
I'm going to take a little different tack on this. Being retired from the RCMP, I'm going to take it from the police side of it. It seems to me that we always put the horse before the cart, because all I've heard today is what happens when we get to court. But first we have to get to court. That's a significant dilemma we're talking about, sections 530 and 531, with regard to the police. From the perspective of some provinces such as New Brunswick, law enforcement officers sometimes need to verify what court the accused wants to proceed in. If they get it wrong, then we're lost out of the gate.
I'm wondering if there's any comment on that part of it from the perspective of the police officer side of it. Because I find it somewhat frustrating sometimes. All of my service was in British Columbia. I only had one time when a person invoked their right to the other official language. It was a challenge for me. It was in northern British Columbia where we had very few, at that time, French-speaking members. It was much different than today.
I'd like to hear how we try to remedy loosely sections 530 and 531 from the perspective of the police, which becomes a real challenge. I've seen where we've lost trials and the police have done significant work. Through no fault of their own, a decision based on a charter argument throws the case out.
I'll start with whoever wants to throw the ball.
Attorney, As an Individual
I would say the answer to that, for the most part, is a cue card. All of our officers have cards on which the right to counsel, the right to be advised of the right to counsel, and so on are written in English on one side and French on the other side.
This gentlemen or this lady may have never spoken any other English in her life. That may be the only English she speaks, but it's sufficient for the accused to understand what his rights are.
Conservative
David Wilks Conservative Kootenay—Columbia, BC
I don't disagree with you.
Go ahead, please, Madame Loranger.
Legal Advisor, Language Rights Support Program (PADL)
I would like to refer you to a Supreme Court of Canada case. I'm talking about Société des Acadiens et Acadiennes du Nouveau-Brunswick v. Canada, from 2008.
The issue you raised is twofold. The RCMP is a special organization. The Supreme Court has established that the RCMP is a federal institution at all times. So, as a member of a federal institution at all times, when an RCMP officer arrests an individual, they must comply with section 20 of the charter. Under that section, in terms of communications and services, the officer must provide an active offer. That is covered in part 4 of the Official Languages Act, which also stipulates that the police officer must provide an active offer. So the officer must speak to the arrested individual in French. They could say the following:
"Bonjour madame/monsieur. Would you like to be spoken to in English or in French?"
Now here is the problem. The issue of significant demand under section 20 of the charter comes into play. There are also official languages regulations that outline specific territories, events and contexts where services should be offered in both languages. Everyone is entitled to a hearing in their language, so we are no longer talking about significant demands.
This has to do with the concept underlying section 19 of the charter. When the evidence before a judge violates certain rights, the judge cannot take it into consideration. If the officer violated section 20 of the charter, the situation becomes problematic.
Conservative
David Wilks Conservative Kootenay—Columbia, BC
If I can just interject, that's part of the problem. The problem is that at the time of arrest, whatever the charge is, in the heat of the moment if I am a police officer, I'm not really worried about language rights.
My job is that you're going in the back of the car one way or the other. I don't care what language it's in, but you're going in the back of the car, and then we'll deal with it from there. That becomes the problem.
Attorney, As an Individual
But that's okay. Once the individual is in the back of the car, they can, as the Americans say, be Mirandized. I don't think it's all that difficult a situation. I don't think the police officer has to get into a fight with a suspect and read him his rights at the same time. He clearly can do that afterwards.
A problem might occur if the accused were to make some kind of spontaneous declaration. Then you might get into a complicated situation.
Conservative
David Wilks Conservative Kootenay—Columbia, BC
That rarely, if ever, happens.
I'm just giving you a policeman's perspective. Sometimes we're challenged by the fact that in 10 seconds we have to think about every law that's going to be brought up before the court and then we will be scrutinized before the court for hours on what they assume we should have known. My job is not to be an expert on the charter. My job is 10 (a) and 10 (b): make sure they get it; make sure they can contact a lawyer in the language of their choice; and after that, have a good day.
Conservative
The Chair Conservative Mike Wallace
We have a minute and a half to respond to the “good day” comment.
The floor belongs to Mr. Lévesque.