Justice Committee on March 27th, 2014

[Johane Tremblay]

We could send you the study that was done in 2007. It looks at the various practices.

It might be a good idea to find out where things stand in New Brunswick now, but back then, the province had just put in place a system where anyone wanting access to health care services had to register. They had to fill out a form indicating which language they wanted to be served in. And that information was used to establish a list.

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

Yes, it would involve extensive monitoring and control.

[Johane Tremblay]

The issue of confidentiality and personal information is also taken into account.

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

That's very true.

[The Chair, Conservative, Mike Wallace]

Thank you very much.

Our next questioner is from the Liberal Party.

Mr. Casey.

[Sean Casey, Liberal, Charlottetown, PE]

Thank you, Mr. Chair.

In your opening remarks, you referenced your report of August 2013 and highlighted two specific recommendations that you've made to the federal Minister of Justice. That was seven months ago. First, what response have you received from the minister, and second, what steps, if any, have been taken towards implementing or not implementing, I suppose, or rejecting, your recommendations? What has happened in the last seven months?

[Graham Fraser]

At the Canadian Bar Association meeting in Saskatoon, I had a brief conversation with the minister, who responded very favourably to the approach. I had previously debriefed the deputy minister on our study and our recommendations. Similarly, when the minister was questioned in his bear-pit session, I guess you'd call it, with the Canadian Bar Association, he responded in a favourable fashion.

Since then, other than a formal acknowledgement of the receipt of the report, I haven't had any indication of specific implementation of the recommendations, but neither have I had any indication that they've been rejected.

[Sean Casey, Liberal, Charlottetown, PE]

So the initial response was favourable, but you're not aware of anything beyond that.

[Graham Fraser]

Yes, that's correct. I mean when I say “favourable” that it was a non-committal favourable response, but my sense was that he welcomed the contribution to the discussion on access to justice.

It was a report that was tabled at the same time as the Canadian Bar Association's more general report on access to justice. He appeared to welcome the contribution to the discussion.

[Sean Casey, Liberal, Charlottetown, PE]

Okay.

The first of those recommendations is to adopt a memorandum of understanding for “a common definition of the level of language skills”. I take it from your previous comment that you're not aware that there has been any meeting convened where that's on the agenda.

[Graham Fraser]

Not to my knowledge.

[Sean Casey, Liberal, Charlottetown, PE]

Okay. I want to relay to you a practical circumstance that I'm aware of and just get your reaction to it.

The defence attorneys who I speak with and who practice in areas where there is a significant minority community—in that, I'm not talking about my home province—tell me that when a defence attorney meets his client for the first time, when that person is in the lock-up and possibly awaiting a bail hearing, and when that attorney advises him that he has the right to a trial in either official language, the most common response is that the client wants whatever it takes to get him out of there quick. They say, “I don't care whether it's English, French, or Greek, you're the person who goes to court every day, so you tell me.”

I expect that doesn't come as a surprise to you. But from where you sit, if you accept what I say as an accurate statement of the lay of the land and what's on the front lines, how do you react to that being the reality in Canada today?

[Graham Fraser]

I'm not surprised. In fact I think Mr. Doyle made similar points when he appeared in testimony before the committee.

I think it is incumbent upon the legal system to ensure that people have confidence that they will get equal treatment before the courts in their preferred language. Inevitably it's the responsibility of the lawyer in that circumstance to do a strategic evaluation of who the judge is that they likely will appear before. Does that judge have a track record of being able to effectively hold a trial in French? Is it worth, in the interest of the client, actually insisting upon a trial in French? It becomes a strategic decision.

We quote some lawyers in our study who make that point and say that for those strategic reasons, in the interest of their client, they recommend that they in effect sacrifice their language rights, which, as I said to Maître Boivin, is putting themselves off in an even more vulnerable situation.

[Sean Casey, Liberal, Charlottetown, PE]

Thank you.

Now I want to come to a specific example in my own province. In your remarks, you talked about the need for objective testing and the lack of objective measures in a couple of respects, and one of them is with respect to language proficiency. There is one Supreme Court Justice in Prince Edward Island who, when appointed to the bench, had no French, went at it like a dog with a bone, and at the end of his training actually passed the civil service exam for his level C. His name is Justice Gordon Campbell.

I use Justice Campbell as an example because when you talk about the need for objective measures, isn't it really that simple, to follow the training program and to follow the evaluation measures that you have in the civil service, which are tried, proven, and work?

[Graham Fraser]

One of the things I've learned about in the course of my work is the language training program that exists for provincial judges in New Brunswick. Judge Finn has developed a series of criteria for evaluating the ability of a judge, or a potential candidate to be a judge, in their second language in very specific terms that would be applicable to their ability to preside over a case.

I don't say this at all to undermine the substantial achievement of Judge Campbell in doing that, but the public service exam is more general and doesn't necessarily apply. I've been very impressed by the quite focused set of criteria developed by the training program that's been introduced by Judge Finn. It includes, as part of its training, mock trials where RCMP officers appear, and people in the village in New Brunswick where this training session takes place will appear as the accused and the court officials. It is much more practical training based on the experience that people will actually have if they are presiding over a case.

[The Chair, Conservative, Mike Wallace]

Thank you very much.

Thank you for those questions, and thank you for that answer.

Our next questioner is from the Conservative Party.

Mr. Seeback.

[Kyle Seeback, Conservative, Brampton West, ON]

Thank you, Mr. Chair.

Thank you, Mr. Fraser. I had the pleasure of sitting in on the official languages committee a few times, so I've heard you come to the committee. You always present well and have lots of information.

I was looking through and listening to your opening statement. There's one thing I want to ask a couple of questions on before I move on. You talked about how there's nothing “objectively verified” with respect to language capability for judges when they're vetted.

Are you suggesting that this leads to judges who claim to be bilingual but actually aren't? I'm not sure if that's what you're hinting at. You didn't come right out and say that, but....

[Graham Fraser]

The way the application process works is that there is a self-evaluation process. People tick off “yes” or “no” as to whether they are. According to some of the interviews we did with lawyers who are practising, they recounted to us experiences of judges who in good faith had ticked off the box, thinking that their French was adequate to preside over a case. They then presided over a case and discovered that it actually wasn't quite as good as they thought it was and basically said to themselves that they were never going to do that again. So whereas the chief justice of the province had them psychologically on the list of bilingual judges, in fact those cases were not being held.

This was a survey and interviews were done. I can't name you any examples in which this was the case, but our interviews indicated that there are cases in which that has happened.

[Kyle Seeback, Conservative, Brampton West, ON]

That's interesting.

I just want to quickly talk about subsection 530(3), which was amended in 2008. At the time, it was just for people who were not represented by counsel. That was amended so that the judge would give the instruction on the first appearance for anybody, whether they were represented by counsel or not. What do you say about that section? Do you think that's been an improvement with respect to the ability for an individual to exercise their right? Do you agree that the judge should be doing that at the first instance? Or should it be done...? I don't know when else it could be done. What are your comments on that?

[Graham Fraser]

First of all, I'd like to say that I did appear before, I think, this committee in support of the amendments that were brought forward in 2008. There were some other recommendations we made that were not taken into account, and there were some amendments made by the Senate that did not survive the process, but I'm going to ask Maître Tremblay to talk a bit about some of the other aspects of section 530.

[Johane Tremblay]

Well, this amendment of course allows the clerk, or it could be another person, to inform the accused of their rights. If the judge doesn't have the bilingual capacity to do it, at least the outcome is that the accused will be informed. But as the commissioner says, if it's the judge who informs the accused, it has another perspective to it. The accused will feel more comfortable in exercising their rights knowing that the judge is offering the informing of their rights.

At the end of the day, I think that maybe, technically, it's easier now because the obligation doesn't lie only on the judges to inform the accused, but it's the impact of that active offer being made by anyone.... It could be the crown. It could be the defence lawyer. It could be anyone who informs the accused of their rights. It's a question of whether or not, at the end of the day, more accused will exercise their rights with that amendment or not. It is difficult to say.

[Kyle Seeback, Conservative, Brampton West, ON]

When you talk about the chief justice trying to determine whether or not there are enough judges to deal with minority language rights across the country, you talk about a memorandum of understanding. What do you think it would take to get that information and data? It seems like a fairly large project to me to try to determine this. How would you see that taking shape? If someone is asking at the trial, and it doesn't happen....

Do you understand? Or if the lawyer says to the person to not ask for it in their minority language because it'll be slower, how would you ever trace or track that in any kind of study?

[Graham Fraser]

I'm sorry. I thought you were asking about how you would introduce the process and the memorandum of understanding for the evaluation of judges.

[Kyle Seeback, Conservative, Brampton West, ON]

No, not that. I understand how that would work. What I'm saying is, how would you see this study actually working? Like we've heard at the committee so far, sometimes a lawyer will just say, “Look, if you want this done quickly, you had better do it in this language.” So you might never get the data that there was someone who wanted it.

[Graham Fraser]

It would be extremely difficult to get that data, because you're talking about lawyer-client privilege. This fits into the same category as the decision involving whether the accused will go on the stand. This becomes part of the advice that the lawyer will give his client. No lawyer would feel comfortable putting in jeopardy the confidential advice that he's given to his client or the confidential request that his client has given him. As you say, if this is happening in a cell and the client's primary concern is “get me out of here”, then....

These changes are not things that can occur overnight. For those changes to take place, the lawyer has to be confident that the process works. There has to be prior experience on the part of people who know other people who've been accused who have gone through the process. At the risk of being cliché-ridden, every journey begins with a single step, and we've suggested a couple of steps that we think would produce a better system.

The measurement, I think, that would take place would be this. Do we see an increase in trials that are taking place in the minority language? When former attorney general Roy McMurtry introduced a bilingual judicial system in Ontario, he observed at one of the anniversaries that the usage of the system does not correspond with the proportion of francophones in Ontario.