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
The problem, I would say, is not so much in the actual drafting of the section. The problem is more in the mentality as to how it's applied. The example you gave before, where sometimes you'll proceed, in my case, in French because it'll go faster, well, I wouldn't use that example. I'll use the example where we are in the middle of a trial and I can smell that the judge wants to acquit. I don't want to spend four hours working with the witness in English. There are certain realities of the situation. So what do you do? Well, you switch to French.
Now, is the accused happy? We have a bit of—
NDP
Attorney, As an Individual
That's right. Exactly.
So if the accused is bilingual, well, tant mieux, you don't have a problem. If he's not, tant pis, but at the end he's happy.
NDP
Françoise Boivin NDP Gatineau, QC
Then you should leave it to the court and not to the lawyers to decide, maybe.
Thank you.
Conservative
The Chair Conservative Mike Wallace
Thank you very much for that question and answer.
Our next questioner is from the Conservative Party. Mr. Dechert.
Conservative
Bob Dechert Conservative Mississauga—Erindale, ON
Thank you, Mr. Chair.
Good morning everyone.
Mr. Slimovitch, you have pointed out some of the issues regarding trials for anglophones in Quebec. I'm glad you were able to raise those issues here because our committee hasn't heard much about those issues in our previous sessions on this.
I was wondering if any of the other witnesses have heard similar issues about the provision of English-language services for anglophones in trials in Quebec. Can any of you comment on that?
As an Individual
Sometime in the last century, I used to be president of the previous federal program that was helping minorities. I sat for five years as chairman of the committee of official languages. I replaced Mr. Goldbloom after he was named as official languages commissioner. I replaced him as a volunteer there. On that committee, we had strong Quebec representation from the minority, and we were then aware of some of the problems... I'm not a member of the Quebec bar, I wouldn't know. I still have friends at the last meeting of the new program last November. I was pleased to meet Casper Bloom, who used to be one of my committee members in those years.
I suppose in many provinces there are still problems because if the ministry or department of justice of a province takes the position that they don't have to be generous in their interpretation of language rights, then there are all kinds of interpretation that will be a problem for the accused and his or her lawyer.
I'll give you an example. When I went in front of Justice Brown and won in 2011 a good interpretation of the language rights under Alberta law, she really laughed in both languages because her judgment was in both languages about the interpretation given by Justice Alberta on language rights. She said it was like clapping with one hand, hoping to hear a sound. I was sure that the case would be appealed, but obviously the department didn't want to take a chance with that kind of judgment. They waited two years to take back by regulation without public debate whatever had been gained. When the appeal period was finished, I wrote to the Department of Justice of Alberta and said that since they did not appeal a decision, they should at least amend the manual of transcripts so that French language proceedings will be considered. They said they didn't think it was necessary. They said that maybe the opposite would happen where a person would testify in English in a French trial, and maybe it won't appear in the transcript.
He didn't answer my other letter. First of all, it would be against your policy that if it's not English, you put those quotations. It means it has to be in English, either the invitation or the original language. Second of all, I've never seen in Alberta a transcript where somebody would have been speaking in English and it would not be in the transcript. It would be replaced by “foreign language spoken”.
Conservative
Bob Dechert Conservative Mississauga—Erindale, ON
Ms. Boudreau, have you heard any similar concerns about access to justice in English Quebec or for an English accused?
Director, Language Rights Support Program (PADL)
I'm going to ask Guylaine Loranger to answer that question.
Legal Advisor, Language Rights Support Program (PADL)
In the case of Quebec, I want to point out that the applications we receive do not involve the Criminal Code, but rather section 133 of the Constitution Act, 1867. There's a debate around what exactly the section means. It stipulates that any pleading or process before Quebec or Canadian courts may take place in either English or French.
The problem we have is this. The federal government set out its obligations in the Official Languages Act, but Quebec has not done that. Should the federal government's interpretation apply to Quebec? That's the question we see raised. That's the answer I can give you.
Are there problems? The answer is yes. Is the situation more problematic in Quebec than elsewhere? No.
I teach law and I work with other universities as part of the Sopinka Cup moot competition in the area of criminal law. I watch students do research and observe trials. I also watch how things unfold. There's always a good excuse not to hold a trial in the language of the accused: the bilingual prosecutor or the bilingual judge is sick and there's no one else available to replace them that day. That's the case all over the country, and the following question has to be answered. What remedies are possible?
Conservative
Bob Dechert Conservative Mississauga—Erindale, ON
Thank you.
Mr. Slimovitch, we've heard from the Department of Justice or the Minister of Justice for Saskatchewan that there are sometimes issues in Saskatchewan with bail hearings being available in both official languages. Have you encountered that issue in Quebec for anglophone accused?
Attorney, As an Individual
I've never seen that problem in Montreal proper. I've heard that the problem occurred a couple of times in slightly outlying regions.
Does it occur more often? I don't know. I couldn't answer that question, but you should also realize that sometimes a judge who you think is unilingual French actually has perfect English, so it can go both ways.
Conservative
Bob Dechert Conservative Mississauga—Erindale, ON
Do any of the other witnesses have a view on whether or not it should be mandated in the Criminal Code that bail hearings be provided in the language of choice of the accused?
As an Individual
It should be included. I note that this is one of the two points where I'm concurring with Jonathan Denis, the Minister of Justice for Alberta, who wrote that they are looking at the notice provision as very important; as soon as they know that an accused will be asking to use either French or English, they can make provision for that.
If it's at the start, fine. Even then we should devise a way where, if the crown is not to contest a request, maybe there's a way not to wait for an order of the judge. It could be something like it is in Ontario. I think there are five ways in which one can request a French language hearing: by filing a first document in French, or by making a requisition, or things like this. There could be an easy way to ask this of the administration of justice; if the crown is not to contest the request, why wait to appear in front of a judge?
Conservative
The Chair Conservative Mike Wallace
Thank you for those questions and answers.
Our next questioner is from the Liberal Party.
Mr. Casey, the floor is yours.
Liberal
Sean Casey Liberal Charlottetown, PE
Thank you, Mr. Chair.
I'd like to come back to the first question posed by Madam Boivin.
Our role here is to look at the operation of this section of the code and to make recommendations. I very much appreciate your testimony in providing us with some practical examples of how it is applied.
I recognize that the problems you've identified may not all be addressed by amendments to the Criminal Code, but that's part of what we're here to do. I wonder if you could take the next step. If you're advising the government or Parliament, where do we go from here? Should the changes be legislative? Should they be in terms of allocation of resources? Are they truly federal or are they federal-provincial? I guess I'd like to take the discussion from “here are the problems we've identified” to “here's what I think you should do about them”.
Liberal
Sean Casey Liberal Charlottetown, PE
Certainly Mr. Slimovitch and Mr. Lévesque, please.
If anyone else has anything to add, I'd be happy to hear what they have to say.
Attorney, As an Individual
First of all, the code could be more specific as to when you have a right to an English something. I've had many judges who've said that you don't have a right to an English preliminary inquiry, that the code says an English “trial”. I've said, “No, it doesn't. Look at the code. It's black and white.”
For a bail hearing, you're going to look a long time. You won't find it. It's simply not there. For arraignments, again, it's not there. Usually and almost always in Montreal, it's not a problem. The individual wants an English everything and he can get an English everything. The problem starts when you leave Montreal. The problem starts when either there are fewer resources or there is less willingness to comply with the order, much like the crown prosecutors did in Saint-Jérôme in the Cross case.
So yes, I think it could be made clearer as to when it applies, but really it's a question of how you're going to approach the situation, how you're going to see it. Do you really want a bilingual trial? You can understand that in Quebec that's a very touchy subject, a bilingual trial.
As an Individual
Our final brief will contain 15 or so recommendations. The first is to amend the Criminal Code to set out the consequences of not respecting an accused's right to be informed of his or her rights. A number of things need to be added to that end.
The way things are interpreted, at least in Alberta, is that if what a person is entitled to is not stipulated clearly, then they don't have access to the rest. The answer I hear most often from those who work in the court system and at the Ministry of Justice is this:
“We are not legally required to provide you with the French form, or a bilingual form or whatever you are asking for”. So if it can be precise, what are the consequences of not advising the accused of his right to a French trial?
I'd like to show you the transcript from Marc-André Lafleur's first appearance in court. He wasn't informed of his right to a trial in French and there was absolutely no evidence that the judge saw to it that he was. Not until six month later did Mr. Lafleur learn that I existed and that I could travel to Fort McMurray. When I told the Crown that his right had been violated, I was told that my client had not suffered prejudice because, thanks to me, he would get his trial in French.
The fact remains that he did suffer prejudice. In those six months before he met me, Mr. Lafleur saw other lawyers who knew nothing about the right to be tried in French. He did not receive any service to that end in a timely manner. The Crown submitted that he would ultimately have his trial in French. And there were no consequences to be had.
The lack of any consequences encourages those who do not see the importance of language rights to disregard them. Only one of two conclusions can be drawn: either linguistic duality is an underpinning of this country and language rights are to be respected and interpreted generously as established by the Supreme Court, or the violation of those rights is of no importance. The deficiencies that are apparent in the correspondence received from the ministry encourage violations. The ministry is claiming that it doesn't have to respect these rights, when the legislation is crystal clear. Under the Criminal Code, if English or French is spoken or an interpretation is provided in either official language during a trial, it must appear in the record.
How, in 2014, can a province that increasingly aspires to be a financial, economic and political leader in the country continue to allow policies that deny people their language rights? It's unacceptable.
The federal government is responsible for appointing superior court judges, who in turn consider the serious charges laid under the Criminal Code and related appeals. One of our recommendations to the committee, aimed at strengthening public confidence in the administration of justice, is to urge Parliament to avoid appointing anyone who is a federal, provincial or territorial cabinet minister one day to the judiciary the next. That's a fairly important measure that extends beyond language rights to the public's confidence in the judicial system.
A long time ago, the Canadian Bar Association asked for a minimum cooling off period of two years. So somewhere between two years, which is not acceptable for governments that have been in power for years, and five days, the committee should be able to find a reasonable compromise.
I have personally experienced a situation where a politician was appointed to the bench after a waiting period of five days. When, as a notary in Alberta, I would submit a bilingual or French-language form from Ontario to certify documents I had to send for clients in Switzerland, Belgium and France, the province could certify that I was a notary public in Alberta in English only. The province would attest my signature and my seal and send the document to a French-speaking nation like Switzerland, Belgium and France in English. The document can be provided in either language, but the province wants to provide it in English only. What good does an English-language document do in a country like Belgium, where they speak Walloon and Flemish?
A justice minister tells me his ministry cannot provide me with the form I am asking for because “we are not legally required” to do so, and five days later, he is sworn in as a judge. Well, that makes me wonder whether I will have to argue my case in his court and whether he will view language rights in the same way.