Justice Committee on March 27th, 2014

[The Chair, Conservative, Mike Wallace]

I call this meeting to order. I want to thank everyone for coming. This is meeting number 17 of the Standing Committee on Justice and Human Rights.

Pursuant to the order of reference on Monday, October 21, 2013, we are doing the statutory review of part XVII of the Criminal Code this morning.

We are joined by our commissioner, Mr. Graham Fraser, from the Office of the Commissioner of Official Languages; and he is joined by Madame Tremblay, the director and general counsel for the legal affairs branch of the same organization.

The floor is yours, Mr. Fraser. You have 10 minutes or so.

[Graham Fraser, Commissioner of Official Languages, Office of the Commissioner of Official Languages]

Thank you very much, Mr. Chair, and honourable committee members.

Good morning. Bonjour.

Thank you for offering me this opportunity to present my views on the study currently being undertaken by the Standing Committee on Justice and Human Rights on part XVII of the Criminal Code—language of the accused—and the implementation of the amendments to sections 530 and 530.1 of the Criminal Code in 2008.

The Office of the Commissioner of Official Languages has been following the evolution of these measures since 1995.

As members of this committee know, in August 2013, I published a joint study with the Commissioner of Official Languages for New Brunswick and the French Language Services Commissioner of Ontario titled Access to Justice in Both Official Languages: Improving the Bilingual Capacity of the Superior Court Judiciary. This study led us to conclude that the process for appointing judges does not guarantee the appointment of an appropriate number of bilingual judges to the country's superior courts and courts of appeal.

Consequently, despite the provisions in the Criminal Code granting Canadians the right to be heard in the language of their choice in criminal cases, the ability to exercise this right remains uncertain.

Our finding is based on three key observations.

First, there is no objective analysis of needs in terms of bilingual judges in the country's different districts and regions.

Second, there is no coordinated approach on the part of the federal Minister of Justice, his provincial and territorial counterparts, and the chief justices of the superior courts to establish a process that would ensure that an appropriate number of bilingual judges are appointed.

Finally, the evaluation of superior court judicial candidates does not allow for an objective verification of the language skills of candidates. In fact, candidates for the federal judiciary can declare on their application form that they are capable of conducting trials in both official languages, but this statement is not objectively verified. At most, the committee analyzing the candidatures will consult those named as references. However, candidates are never interviewed in person, nor are they evaluated through an objective testing of their language skills, as is the case for public service employees, for example.

It is therefore not surprising that, as a number of our study respondents reported, litigants speaking the minority official language are all too often forced to be heard in the majority language or otherwise incur additional costs and delays if they persist in exercising their rights.

In light of these findings, I have made several recommendations, directed primarily to the federal Minister of Justice. In particular, I recommended that the minister establish, together with the attorneys general and the chief justices of superior courts of each province and territory, a memorandum of understanding to adopt a common definition of the level of language skills required of bilingual judges and identify the appropriate number of bilingual judges and designated bilingual positions.

I have also recommended the implementation of a process to objectively evaluate the language skills of all candidates who identified the level of their language skills on their application form.

On February 22, 2014, the Canadian Bar Association adopted unanimously a resolution that supported our study and urged the federal Minister of Justice to implement our recommendations. It is important to clarify that the goal of our study was not to determine whether there is a lack of bilingual judges. Rather, it was intended to determine to what extent the judicial appointment process guarantees sufficient bilingual capacity in superior courts.

However, I believe that the implementation of our recommendations is the best way to develop a pool of bilingual judges in the country's superior courts. Also, our study applies to superior courts only, which deal with the most serious criminal cases and are also used in trials with jury. The study does not apply to provincial courts.

Regarding the number of bilingual judges in the country, I would like to make a few additional comments. During their appearance before you, certain witnesses stated that there were sufficient bilingual judges in the country's courts. I cannot speak to the number of bilingual judges in provincial courts. As for superior court judges, it is currently impossible to determine whether the number of bilingual judges is sufficient or not, and that is for two reasons.

In order to be able to say that there are sufficient bilingual judges, there must be an assurance that the number of bilingual judges can respond to the needs of minority language communities in terms of access to justice in both official languages. Yet, as I mentioned earlier, no objective analysis of these needs is performed at any point of the superior court judiciary appointment process. The federal Minister of Justice consults chief justices before appointing a judge in superior courts, and the needs in terms of bilingual judges may sometimes be discussed in the context of those consultations.

Given that the consultation process is entirely informal, we do not know what information chief justices consider when they communicate their needs in terms of bilingual judges. We can speculate that chief justices base their decisions in part on the demand for trials in the minority official language in previous years. However, as many stories reveal in our study, this number is inevitably inferior to the real needs, given the various obstacles litigants face when they do ask to be heard in the minority language.

Among these obstacles, we can mention the delays and additional costs often caused by the requests for trials in the minority official language, as well as the lack of language rights knowledge by court users and many key actors of the judicial system. These obstacles often limit Canadians to proceeding in the majority official language, despite their rights to the contrary.

Appointing bilingual judges according to demand only contributes to the state of affairs and creates a vicious circle that is detrimental to the preservation and development of official language communities. This is why I recommend an objective evaluation of the needs in terms of access to justice in both official languages which takes into account the opinion of French-speaking common-law jurists' associations or the minority language legal community.

Second, in order to maintain that there are sufficient bilingual judges, there must be an assurance that the language skills of candidates to the superior court judiciary are evaluated objectively. This is presently not the case. As I said earlier, candidates to the judiciary do not undertake an exam or an interview regarding their language skills. It is therefore impossible to know which judges possess a sufficient level of bilingualism. As a matter of fact, there are currently no definitions or objective criteria allowing us to determine what a bilingual judge is.

For all these reasons, my counterparts and I have urged the Minister of Justice of Canada to ensure a quick and collaborative implementation of these recommendations. The consequences of inaction are real for the citizens who must contend with the judicial system and who are not guaranteed to be heard in their official language of choice. The full implementation of these recommendations is crucial in ensuring that the rights guaranteed under part XVII of the Criminal Code are respected.

I trust these comments will be useful as you carry out your study.

Mr. Chair, I thank you and the honourable members of this committee for your consideration.

[The Chair, Conservative, Mike Wallace]

Thank you, Commissioner, for those opening remarks.

We will go to questions now. Our first questioner is from the New Democratic Party, Madame Boivin.

[Françoise Boivin, NDP, Gatineau, QC]

Thank you, Mr. Chair.

Mr. Fraser, Ms. Tremblay, thank you for being with us this morning.

The parameters of your study, I believe, were a bit broader than ours. Our mandate was limited to a review of part XVII of the Criminal Code.

With that in mind, then, if the language rights in part XVII were not mentioned, if no bilingual judges were available or if the accused was not duly advised of their rights, the accused could end up being acquitted because they did not receive a fair trial. Is that correct?

[Graham Fraser]

As I see it, the most important thing is that the accused be duly informed of their rights at the first opportunity in the process.

But even when that does happen, the interviews we conducted as part of our study revealed that counsel sometimes make recommendations to their clients that go against their professional code of ethics. They advise clients to make decisions based on efficiency and effectiveness or counsel's assessment. I believe Mr. Doyle spoke to that when he appeared. The accused wants a quick trial and a favourable outcome, so that can influence the accused's decision.

[Françoise Boivin, NDP, Gatineau, QC]

There'd be no problem with that if it were an informed and fact-based decision. If someone makes a certain choice for informed reasons, I see no problem with that.

You said “at the first opportunity”. Part XVII talks only about the trial and the preliminary hearing. We've asked this question a lot, but I'd like to hear what you, the Commissioner of Official Languages, has to say about it. Should part XVII extend to the first appearance as well, because that is often the time when pleas are made, evidence is revealed and the accused's release is discussed, among other things? Should part XVII go further?

[Graham Fraser]

Personally, I think so. It would also be helpful if that obligation fell to the judge because it would carry more weight coming from the judge. I will ask Ms. Tremblay to elaborate on that.

[Johane Tremblay, Director and General Counsel, Legal Affairs Branch, Office of the Commissioner of Official Languages]

I'll come back to what happens when the accused's rights are not respected. Can it lead to an acquittal? More often than not, there's an appeal and the judge orders a new trial. The process takes longer, and that carries costs for the justice system.

[Françoise Boivin, NDP, Gatineau, QC]

As lawmakers, we want to adopt the best possible policies. I am not one of those who believes that if people aren't satisfied, all they have to do is appeal. I believe the process should be fair from the outset. Fair play from beginning to end. That would seem to go without saying.

Mr. Fraser, I was flabbergasted when the committee heard from Mr. Lévesque on Tuesday. He talked to us about the translation of documents in Alberta. Sometimes, it would appear that French is viewed as a foreign language in Canada. Is that true?

[Graham Fraser]

I can't speak to that in detail, but I can say that, in one of its rulings, the Supreme Court agreed with the decision of courts in British Columbia to refuse documents submitted in French, such as affidavits that formed part of the evidence provided by the parties. Clearly, then, in some court systems in the country, such as British Columbia's, it is acceptable to refuse French-language documents, and the Supreme Court even recognized that.

[Françoise Boivin, NDP, Gatineau, QC]

But that doesn't apply to criminal trials under part XVII, does it?

[Graham Fraser]

I won't go into detail, but the anecdotal evidence shows there have been problems with interpretation in some cases where defence counsel had to listen to the simultaneous interpretation of what was said in order to then correct it. So, yes, that can be a problem.

[Françoise Boivin, NDP, Gatineau, QC]

I can already hear some people in the country say that extending the scope of part XVII to include bail hearings could complicate matters. Those who practise criminal law know that the language selection has to be made fairly quickly because the person is in custody and has the right to be released. So it satisfies certain requirements.

Let's say a defendant asks to be tried in English if he is in Quebec, or in French if he is elsewhere in the country. How would you respond to those who would argue that doing so would probably make things more complicated? Some people argue that having to find a judge who speaks the accused's language and constitute a court in the language of the defendant's choice could complicate things.

What would you say to those people?

[Graham Fraser]

I would say that justice, in and of itself, is complicated.

Back to your scenario, the choice would have to be an informed one. Take, for example, an accused who is in a vulnerable situation. It's a bit like a sick person in a hospital. I am not a lawyer and I can tell you that going to court is pretty intimidating for those of us who aren't lawyers. Someone might feel at ease expressing themselves in their second language, but not necessarily using the right terminology. It is possible to make an informed choice at the beginning of the process, but that choice might also be a difficult one for an accused who is in a vulnerable situation.

[Françoise Boivin, NDP, Gatineau, QC]

It would probably be best to let the judge—and not the lawyers—lay the issue out very clearly.

[The Chair, Conservative, Mike Wallace]

Merci. Thank you for those answers and that question.

Our next questioner is Mr. Goguen from the Conservative Party.

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

Thank you, Mr. Fraser, for appearing before the committee today and sharing your extensive expertise with us.

I'd like to discuss the challenge of finding French-speaking or bilingual candidates for trials by judge and jury. We talked about that with another witness, Rénald Rémillard, the executive director of Fédération des associations de juristes d'expression française de common law inc. When he appeared, he said to the committee, and I quote:

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.

Does one particular province have a better model as far as making up bilingual juries is concerned? Is there a model that we could support?

[Graham Fraser]

I know a study was done in British Columbia. There, I think they use the list of parents whose children attend French schools. I agree with Mr. Rémillard that a single approach can't be imposed country-wide. I think the language situation varies from province to province. Some communities are very unique. To some extent, it's up to each province to know the needs of their respective communities best. That's in fact the reason why we included a recommendation to initiate a consultation process with the Fédération des associations de juristes d'expression française, or FAJEF, and maybe with community institutions as well.

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

I'm not sure whether every province has an association of French-speaking jurists, but their mandate could include making up lists of people who were willing to volunteer. I know being on a jury isn't necessarily pleasant because it comes with many obligations, especially in terms of time, and it could even cause a loss of income.

[Graham Fraser]

I think it would be better to ask members of the FAJEF whether that would be too demanding. The association certainly represents individuals who practise the profession in the minority language. I should actually be referring to French since Quebec doesn't have an equivalent association. And precisely because Quebec doesn't have an association of English-speaking jurists, we had trouble finding English-speaking lawyers for our study. In short, the FAJEF represents lawyers who practise in French in the provinces.

It may not have a presence in Prince Edward Island, but—

[Johane Tremblay]

Or in Newfoundland, for that matter.

[Graham Fraser]

I believe it has member associations in every province except for Prince Edward Island and Newfoundland and Labrador.

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

I know that many lawyers from New Brunswick argues cases in Prince Edward Island since it is so close.

[Graham Fraser]

Yes, that's true, and some judges will go there to hear cases as well. There is a close level of cooperation between the two court systems.

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

That's definitely a step in the right direction.

Did you have anything to add, Ms. Tremblay?