Thank you very much, Mr. Chairman.
I would like to start off by thanking you for giving me the opportunity to speak to you today. I will use this occasion to share some thoughts on the judicial appointment process and the shortage of bilingual judges.
The shortage of bilingual judges in the superior courts of the provinces and territories is one of the main barriers to access to justice in both official languages. Yet, it is precisely these courts that are the ones who hear criminal law, family law and bankruptcy cases. Further, every Canadian's right to use English or French in Canadian courts is one of the basic language rights set out in our constitutional framework.
To ensure that all litigants have true access to the superior courts in the official language of their choice, it is essential that these courts have a sufficient number of bilingual judges at their disposal. The appointment process must therefore ensure the bilingual capacity of superior courts. Otherwise, access to justice in both official languages is compromised.
Since 1995, there has been much talk about the need to review the judicial appointment process. Some of my predecessors have raised the issue, as have French-speaking lawyers' associations and parliamentary committees.
I would like to briefly recall the efforts of these players in their attempts to convince the Government of Canada to take action.
In 1995, Commissioner Goldbloom published a study on the use of English and French before Canadian courts. In this study, he concluded that the linguistic abilities of superior courts and courts of appeal in the provinces and territories were unequal and insufficient. At the same time, the commissioner recommended that the federal government place considerable emphasis on language skills in selecting candidates for judicial appointment.
In 2003, the Standing Senate Committee on Official Languages recommended that bilingualism be recognized as a criterion for the selection of judges. In its response, the government merely stated that the advisory committees take into account the candidates' proficiency in both official languages.
In June 2005, the House of Commons Standing Committee on Justice, Human Rights, Public Safety and Emergency Preparedness set up an ad hoc committee with a mandate to examine the nomination process for the federal judiciary. This subcommittee heard from a number of witnesses, including the Canadian Bar Association, la Fédération des associations de juristes d'expression française, and my predecessor, Commissioner Dyane Adam. All the witnesses attempted to make committee members aware of the problem of the shortage of bilingual judges and proposed changes to the appointment process.
In November 2005, the Standing Committee on Justice tabled its 18th report, detailing the proceedings of the ad hoc subcommittee. The subcommittee did not have the time to finish its work before the 38th session of Parliament ended, but it did identify a few promising courses of action.
For example, a consensus was reached on the fact that judicial candidates should be interviewed during the appointment process. In my view, this measure would ensure that language skills of candidates are assessed before candidates are appointed. The subcommittee members agreed that the Minister of Justice should consult with the chief justice of the jurisdiction in question regarding the specific language needs of the court that has the vacancy. In her annual report tabled in 2004, my predecessor, Commissioner Adam, recommended that the Government of Canada re-examine the appointment process of superior court judges in order to provide these courts with an adequate bilingual capacity.
To date, the federal government's response to the recommendations of my predecessors and the House of Commons and Senate committees has been timid and largely inadequate.
I recognize that Minister Nicholson's practice of consulting with the chief justices on their specific needs in terms of bilingual capacity is a step in the right direction. However, I encourage the minister to show leadership and explore other solutions in concert with his provincial and territorial counterparts.
The time is right because Chris Bentley, Ontario's Attorney General, is currently examining this issue. At the beginning of the year, he started consultations on the recommendations made by Justice Osborne in his report on Ontario's civil justice system reform. Justice Osborne recognized the problem of the shortage of bilingual judges and recommended that any future appointments to the Superior Court should expressly consider the need for bilingual judges within a given region. I took the opportunity to write to Mr. Bentley and encourage him to initiate a dialogue with all key actors, including our Franco-Ontarian community, to ensure access to justice in both official languages.
Last, I'd like to share my view on the appointment process for the next judge of the Supreme Court of Canada. On the eve of the 40th anniversary of the Official Languages Act, it seems to me that knowledge of both official languages should be one of the qualifications sought for judges of Canada's highest court. Setting such a standard would prove to all Canadians that the Government of Canada is committed to linguistic duality. I find it essential that an institution as important as the Supreme Court of Canada not only be composed of judges with exceptional legal skills, but also reflect our values and our Canadian identity as a bijural and bilingual country.
Access to justice is one of the cornerstones of our judicial system. The insufficient bilingual capacity of the superior courts and courts of appeal of the provinces and territories means that a significant segment of the Canadian population is being denied the right to access justice in the official language of its choice.
As the Ontario Court of Appeal recently ruled in Belende, violation of these rights “constitutes material prejudice to the linguistic minority.” A review of the appointment process is essential to ensuring equal access to justice in both official languages.
Thank you. I am now prepared to answer your questions when the time is right.