Official Languages Committee on May 8th, 2008

[Pablo Rodriguez, Liberal, Honoré-Mercier, QC]

Thank you, everyone.

[The Chair, Conservative, Steven Blaney]

Thank you very much, Mr. Rodriguez.

It's now the turn of a government member. Mr. Lemieux, go ahead, please.

[Pierre Lemieux, Conservative, Glengarry—Prescott—Russell, ON]

Thank you very much and thanks to our witnesses.

I'd like to begin by asking Mr. Fraser a question.

Your predecessor, Commissioner Adam, mentioned in 2003 that the Office of the Commissioner of Official Languages had received very few complaints about the exercise of language rights before the courts. If my memory serves me, she had received approximately 24 complaints in 10 years. She explained that situation as being the result of a number of factors, including perhaps a lack of awareness on the part of Canadian litigants of their language rights.

I would like to know whether you can bring us up to date on the number of complaints received in recent years. Has the number increased or decreased, or has it remained virtually the same?

[Graham Fraser]

As regards the specific area of access to justice, I'm going to ask Ms. Tremblay to answer you.

[Johanne Tremblay, Director, Legal Affairs Branch, Office of Commissioner of Official Languages]

I believe Commissioner Adam was talking about complaints filed under Part III, which concerns federal quasi-judicial or administrative tribunals. A small number of complaints have indeed been filed in the past 10 years.

In a number of cases, litigants are not informed of their rights, including the right to be heard in the official language of their choice. And often those who are informed prefer to proceed in English, as a result of the inability of those tribunals to plead in French.

We currently have two complaints concerning the ability of superior courts to hear cases in both official languages. I'm not able at this time to tell you the number of complaints concerning federal quasi-judicial tribunals, but we could provide you with those figures if the committee wishes.

[Marc Tremblay]

I'd like to add a brief comment.

The conclusion seems to be that this lack of complaints stems from poor knowledge of rights. However, that's an opinion. I'm not sure the Office of the Commissioner has specific figures that could support that fact.

I can say that, in my 10 years dealing with language rights at the Department of Justice, to my knowledge, we only had to handle a single complaint concerning the question of access, and it involved the Attorney General of Canada, whether it was before criminal courts or civil courts.

We're making efforts to increase litigants' awareness back home. The Office of the Commissioner of Official Languages has a mandate to make the public aware of their language rights. We must definitely continue making efforts in that area.

However, before drawing any negative conclusions about the lack of complaints, perhaps we should rethink this process somewhat.

[Pierre Lemieux, Conservative, Glengarry—Prescott—Russell, ON]

I'm not advancing any hypotheses. I would simply like to know how many complaints have been received.

Some initiatives have been taken by the Department of Justice, but also by groups like the Association des juristes d'expression française, to make Canadians aware of their language rights.

What is your opinion of those initiatives? Do you have a positive or a negative impression? Does that contribute to the cause?

[Graham Fraser]

I'm referring to the support fund that Ms. Duchesne mentioned. I'm going to take this opportunity to say that it's very important that the support fund be renewed in the context of the action plan. It was a program of $18.5 million over five years, which is now awaiting the action plan's renewal.

I indeed view that in a positive light, but I nevertheless have some concerns about the fact that we're still waiting for a renewal of the action plan.

[The Chair, Conservative, Steven Blaney]

Ms. Aucoin, go ahead very briefly.

[Louise Aucoin]

I'd simply like to add that the plan as such has been evaluated and that the evaluation is very positive. That was done as part of an external evaluation, and the evaluation is excellent.

[The Chair, Conservative, Steven Blaney]

Thank you, Ms. Aucoin and Mr. Lemieux.

We'll now go to Ms. Freeman.

[Carole Freeman, Bloc, Châteauguay—Saint-Constant, QC]

Thank you for being here today.

I'd like to ask other questions on the appointment of judges to the Supreme Court.

I had the privilege of being a member of the committee when Mr. Justice Rothstein appeared. We took great note of his knowledge of the French language. I must say that, at every point, he declared his commitment to take courses that would enable him, in the space of two years, to master the language well enough to be able to comply.

Later, Mr. Nicholson appeared in the Standing Committee on Justice and Human Rights, of which I am also a member. The minister had assured us that this was not a major handicap, since one could very well learn the language quite quickly. What took precedence in the appointment of a Supreme Court justice, apparently, was legal ability more than language ability.

I also heard Mr. Doucet say that a distinct improvement has been noted with regard to Supreme Court justices. Could you provide some clarification on that point? I don't see a major improvement.

[Michel Doucet]

What I simply meant was that there was a time when there were many more unilingual judges on the Supreme Court of Canada, a time when virtually the majority of justices in the court could be unilingual. Not so long ago as well, barely four or five years ago, there were three or four judges who could not function in French.

Earlier I was listening to my colleagues say that there is currently only one. As long as there is one, I won't say that the situation is perfect. In my opinion, it is essential that all the justices of the Supreme Court of Canada be able to hear cases directly in both official languages. Until that is the case, I can't say that it's perfect.

[Carole Freeman, Bloc, Châteauguay—Saint-Constant, QC]

I think you're absolutely right to say that it's elementary, in a country that defends both official languages, for the highest court to be able to operate in both languages. It seems to me that's elementary. If we look at the problem at its source, judicial appointments are said to be a federal jurisdiction. Everyone knows that the government proceeded unilaterally to amend judicial appointments last November by changing the composition of the evaluation committee. On the evaluation committee, of course, they forgot to take the language provision into account.

You know that, previously, to appoint a judge—and that's a federal jurisdiction—the evaluation committee had to have a member from the Canadian Bar Association, a member from the provincial bar association, the Attorney General, a member of the judiciary and three individuals appointed by the government. They changed that way of appointing judges by designating a member of the Canadian Bar Association, a member of the provincial bar, a member of the police department, or who represents it unilaterally, and three individuals from the government. The committee was completely changed.

Do you think we could change it more in order to take language into account? Currently the Conservative government's claims are very much taken into account, but could we introduce this provision in the way judges are appointed, in the evaluation committee?

[Graham Fraser]

Absolutely.

[Carole Freeman, Bloc, Châteauguay—Saint-Constant, QC]

And what do you propose?

[Graham Fraser]

I'd like to go back to a point that you raised, that what is important is legal competency. A distinction is made, and I don't think it should be. I think that linguistic ability is an integral part of legal competency. Our acts aren't translated; they're drafted in both languages. So if you can't read the other version of the act, you understand half the act, since there isn't one official version that takes precedence over the other. In my opinion, it's essential that, at the Supreme Court, we be able at least to require... As regards the matter of the acts drafted in both languages, a translation is not enough, because you have to understand both versions.

[Carole Freeman, Bloc, Châteauguay—Saint-Constant, QC]

Thank you.

Ms. Aucoin?

[Louise Aucoin]

I'd just like to add that the objective way that has been established to ensure legal competency is that you have to have been a member of the bar for 10 years in order to be eligible to become a judge. So it seems to me that perhaps we could also have an objective criterion to ensure candidates' language ability.

[Carole Freeman, Bloc, Châteauguay—Saint-Constant, QC]

I didn't understand what you just said.

[Louise Aucoin]

We have an objective criterion for evaluating a candidate's legal ability, that is to say that the candidate must have been a member of the bar for 10 years in order to be appointed judge. So it seems to me that it would also be a good idea to have an objective criterion for evaluating language ability. I quite agree that that's part of the ability—

[Carole Freeman, Bloc, Châteauguay—Saint-Constant, QC]

That's my question.

[The Chair, Conservative, Steven Blaney]

Thank you, Ms. Freeman. We've already used more time than was allotted to you.

Mr. Godin.

[Yvon Godin, NDP, Acadie—Bathurst, NB]

Thank you, Mr. Chairman.

Mr. Tremblay, earlier you said that the debate was a false debate and that it was as though we didn't know what we were talking about. However, it's very clear to me that you were talking about Supreme Court justices from the provinces whose appointments are under federal jurisdiction. That's the debate today. In Nova Scotia, for example—you should be aware of that—how many judges are there in the Supreme Court?

[Marc Tremblay]

I don't work at the Office of the Commissioner for Federal Judicial Affairs, Mr. Godin. I don't have a handle on the questions you're asking me.