Justice Committee on March 27th, 2014

[Kyle Seeback, Conservative, Brampton West, ON]

It's kind of like the movie Field of Dreams, “If you build it, they will come.” Is that...?

[Voices]

Oh, oh!

[The Chair, Conservative, Mike Wallace]

Thank you—

[Graham Fraser]

But there has to be some conviction that it actually has been built.

[The Chair, Conservative, Mike Wallace]

Commissioner, in either official language, I'm going on to the next questioner.

Thank you for those questions and answers.

Our next questioner is Madame Péclet from the New Democrat Party.

[Ève Péclet, NDP, La Pointe-de-l'Île, QC]

Thank you kindly, Mr. Chair.

Thank you, as well, commissioner.

I am going to get right to the crux of the matter. As you know, we are studying the execution of part XVII of the Criminal Code. A number of witnesses have told us that the judge has an obligation to advise the accused of their rights. But because the obligation isn't of an official or personal nature, it gives rise to certain problems. In fact, in 2002, the Department of Justice conducted a study that revealed a problem in that respect.

I am going to ask you something I have asked many of our witnesses. In order to improve the way that part XVII of the Criminal Code is administered, should the judge have a personal obligation to advise the accused of their language rights at the time of their appearance?

[Graham Fraser]

Yes. At the very least, the judge should make sure that the accused has indeed been advised. It isn't mandatory that the accused be advised of their rights at the time of their first appearance before the judge. The possibility of advising the accused at other stages of the proceedings does exist. To my mind, the judge should have an obligation to ensure that the accused has a clear understanding of their rights.

[Ève Péclet, NDP, La Pointe-de-l'Île, QC]

Very good.

In your research, did you detect a problem in that regard?

[Graham Fraser]

We didn't look at that element because it didn't enter into the scope of our study, as Ms. Boivin mentioned.

[Ève Péclet, NDP, La Pointe-de-l'Île, QC]

I see.

I want to pick up on what my colleague said.

Part XVII of the Criminal Code does not apply to sentencing hearings or parole hearings. I'd like you to tell us more about where you stand on that. You said that part XVII should apply to those cases and that its reach should ultimately be extended.

[Graham Fraser]

Personally, I believe it should. If the point is to ensure equal access to a court process in the language of the accused's choice, that right shouldn't be limited to the trial, but should apply to the entire process.

[Ève Péclet, NDP, La Pointe-de-l'Île, QC]

In your report, you recommend that the Attorney General of Canada establish an appropriate number of designated bilingual judge positions. That would make language skills one of the criteria to be considered. It would still allow people who were not bilingual to become judges and prevent them from being discriminated against based on their official language skills.

A designated number of positions would be established. I know that's how Ontario's justice system works. It has a designated number of positions for bilingual judges. Do you think that would solve the problem related to bilingual judges?

[Graham Fraser]

We identified two approaches. They are to establish either an appropriate number of designated bilingual positions or an appropriate number of judges with the language skills to preside over a proceeding in the minority language.

We didn't make any determination as to the better option. However, a system with designated bilingual positions would have the benefit of ensuring certain things. For example, it would ensure that Sudbury had enough judges in designated bilingual positions and that the required number of bilingual judges weren't all in Toronto.

We recommended that it be agreed that the province's chief justice would obviously be the one who determined the more effective method.

[The Chair, Conservative, Mike Wallace]

Two minutes left.

[Ève Péclet, NDP, La Pointe-de-l'Île, QC]

Just two minutes.

In that case, I'm going to give my time to my colleague.

[The Chair, Conservative, Mike Wallace]

No, he has time. We'll have time for a whole turn for him.

[Ève Péclet, NDP, La Pointe-de-l'Île, QC]

Oh, okay, perfect, good; I didn't think so.

I'd like to discuss section 531 in part XVII. I know you didn't cover that in your study. The section allows a trial to be held in another territorial division that has the necessary resources when the original territorial division does not. My question will most likely be for Ms. Tremblay, since she seems to know what I'm talking about.

Is this section applied often enough in territorial divisions where bilingual judges are lacking and the courts are therefore supposed to order that the trial be held in a territorial division with the necessary resources?

[Graham Fraser]

Yes, I am going to ask Ms. Tremblay to answer your question. I'm no expert on court logistics in the various provinces.

[Johane Tremblay]

I'm familiar with the section, but I can't tell you much about it. I don't know how it is applied. I couldn't say whether it was used regularly or even whether ordering that a trial be held in a different district or province is a pragmatic approach judges use to ensure the accused is tried in their language.

[The Chair, Conservative, Mike Wallace]

Thank you very much.

Thank you for those questions and answers.

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

[David Wilks, Conservative, Kootenay—Columbia, BC]

Thank you very much, Mr. Chair.

I thank the witnesses for being here today.

I'm going to focus my stuff in on what I'm comfortable with, and that's the police side of it. Certainly from the perspective of the judges and lawyers that preside over the cases in the courts, that in itself is a significant issue, I think. I'm wondering if you can tell me what you see as the role for the police, interpreters, translators, and typographers with regard to the legal system specific to sections 530 and 530.1. Where do you see that role? Then I'm going to continue on with another question.

[Graham Fraser]

I think it depends on the province in which the case occurs. There are some provinces where the police force has language obligations. For example, in New Brunswick where the RCMP acts as a provincial police force, the courts held that the RCMP needs to meet the criteria of New Brunswick rather than the federal linguistic criteria. So they have language obligations from the point at which they pull a car over to the side of the road. There are other provinces where that obligation does not exist.

I have sometimes wondered whether in fact some language activists in different provinces engage in their activism by speeding, when you consider the number of speeding tickets that have led to Supreme Court decisions on language rights. We have such an asymmetrical language system that the obligations involving police forces in western Canada, for example, are very different from what they are in New Brunswick.

[David Wilks, Conservative, Kootenay—Columbia, BC]

That was leading into my next question.

My entire career was in western Canada, where we were not very often exposed to the official language of French. It's just not there, right? But the odd time it happens, and it's the odd time that is really problematic, because as I mentioned in previous testimony, the problem is that we receive the 10(a) and 10(b) card for the charter, and it's in both official languages.

Only once did I have significant difficulty on the side of the road. It's not as though you can call someone. You're there, so you just give them the card and say to read it. Then you have to assume that he—in this case it was a he—understood. He acknowledged that, yes, he got it. I would suggest that would not hold up in the court too quickly.

I guess that leads to my second question, which is with regard to official languages in a broader context. I understand New Brunswick, but how should that apply to all stages of the judicial process, right from time of arrest to disclosure to bail hearings for that matter? It's a significant challenge when you have to bring it in as a total judicial process.

[Graham Fraser]

You're absolutely right, and the nature of the real world is that if there is a violent incident on a Saturday night in Red Deer, the arresting officer is not necessarily—in fact not likely—to have language skills. I recognize that it would be a very ideal world in which those language rights would be available from the moment of arrest.

[David Wilks, Conservative, Kootenay—Columbia, BC]

You bring up another point, because in the heat of the moment, sometimes especially in violent altercations, the police are making decisions in seconds. The last thing you're worried about is the official language of the accused. But the problem is that when it gets to court, those few seconds of your decision as a police officer can be examined for hours on end by the court system. They can determine that you made a decision within seconds that now could potentially jeopardize the case, when in fact that wasn't the intent of the police officer. I guess I liken it to what I said back on Tuesday, which was, regardless of your language, you're going in the back of that car. You decide how you're getting there.