Thank you, Mr. Chairman.
Thank you for this invitation.
Allow me to talk very briefly about the Fédération des associations de juristes d'expression française de common law. FAJEF represents seven associations of French-language lawyers and its mandate is to promote and defend the language rights of francophone minorities, particularly—although not exclusively—in the administration of justice. We represent 1,350 lawyers. A number of them are graduates of the University of Moncton and the University of Ottawa, that is to say of common law faculties. We nevertheless represent many francophone and francophile lawyers who are graduates of all law faculties in Canada. We have an excellent representation of lawyers across Canada. FAJEF is also a member of the Fédération des communautés francophones et acadienne du Canada.
Our presentation today will focus on the federal judicial appointment process in general, although we want to make a few comments and suggestions regarding the Supreme Court of Canada appointment process. I'm here today with Mr. Rénald Rémillard, Executive Director of FAJEF.
What are the provinces' judicial language obligations? As my colleague Mr. Doucet pointed out, the degree of judicial bilingualism varies from province to province in Canada. For example, the courts of Manitoba, Quebec and New Brunswick must all operate in both official languages. In Ontario, the same principles applies in the designated bilingual regions, which represent approximately 90% of the population of Ontario. Since 1990, in the undesignated bilingual regions of Ontario, British Columbia, Alberta, Saskatchewan, New Brunswick, Prince Edward Island and Newfoundland and Labrador, judicial bilingualism obligations have been largely limited, but not always exclusively, to criminal trials. One thing is certain: in 2008, all provinces and territories must have a minimum number of bilingual judges. That was not previously the case. There has been some progress since 1990, when the present judicial appointment process was adopted.
What have been the results of the federal judicial appointment process? In our opinion, the current process too often produces unacceptable results. That observation is confirmed by our members, who for a number of years have told us about certain alarming situations in a number of provinces. Here are a few examples.
The citizens of Manitoba have the constitutional right to use the language of their choice before all courts. Despite that right, there were no bilingual judges in the Family Law Division of the Court of Queen's Bench until February 2005. For years, Manitoban francophone litigants wishing to divorce in French had to appear before a judge of the General Division of the Court of Queen's Bench. In concrete terms, that meant that litigants wishing to proceed in French in Manitoba often had to wait longer for a divorce than if they had proceeded in English, as a result of an absence of bilingual judges. Thus the federal judicial appointment process has not ensured respect for language rights in Manitoba for years, and there are no guarantees that things will be better in future.
In Ontario, the Superior Court must be able to hear trials in French in the designated regions. Despite that right, the Superior Court of Ontario has lost its bilingual capacity in Windsor and Welland. In Toronto, its bilingual capacity is distinctly inadequate. The situation is scarcely better in other Ontario regions, such as Parry Sound, Sault Ste. Marie and Thunder Bay.
Since there are no official statistics on the number of bilingual judges on the federal bench in Canada, we are unsure of the number of bilingual judges in Prince Edward Island and Newfoundland and Labrador.
In Alberta and British Columbia, two judges per province speak fluent French in the provincial superior courts, but, in Saskatchewan, there is only one bilingual judge from the Court of Queen's Bench. If that judge is on sick leave or vacation leave, or if there is a conflict of interest, the right to a trial in French under the Criminal Code disappears in that province. This right is thus in a highly precarious position.
FAJEF is of the view that the current federal judicial appointment process does not take sufficient consideration of language rights. Furthermore, the absence of any mechanism to assess the degree of bilingualism of federal judicial candidates confirms, in our view, the lack of importance attached to the bilingualism criterion in the appointment of judges to the federal judiciary. The present appointment process must be reformed, at least with respect to official languages.
Here are some potential reforms or solutions to explore. We think it would be important to assess the number of bilingual judges necessary to ensure equal access in French. That number should be regularly reassessed for each of the provinces or regions, based, among other things, on the principle of equal access and on the constitutional and statutory obligations of the province or region. In such an assessment, the lawyers associations should be consulted because they know whether the number of bilingual judges affects access to justice for francophone litigants in their province. That information is not always known to other stakeholders or to chief judges, who often rely on actual demand in French, but not necessarily on potential demand.
Mechanisms that clearly enable the minister to request bilingual candidates on the committee would be another potential solution. It should be specifically provided that the minister be able to require a list of bilingual candidates from the committees, and that that be indicated on the lists of judges submitted to the minister. The bilingual capacity of candidates should be assessed because it is currently subject to no measurement. Individuals may declare themselves bilingual on an application form without actually being so. Experience moreover shows that people quite readily declare themselves bilingual, whereas they are much less so in actual fact. When it comes to hearing a trial, it is not enough to say: “Bonjour, comment allez-vous?”
To assess the bilingual capacity of judicial candidates, candidates could be interviewed and at least one of the members of the selection committee should be fluently bilingual. That member would thus be able to assess the level of bilingualism. Of course, in certain provinces, a minimum number of bilingual members would be unacceptable. We therefore support Mr. Doucet's suggestion.
Bilingual candidates should also be identified on a mandatory basis. It should be indicated whether the candidates recommended for their province or region are bilingual. There is currently nothing to suggest that a candidate's bilingualism is identified when that person's name appears on the list of recommended individuals.
With respect to the regression that has been noted in certain provinces, there shouldn't be any loss of bilingual capacity when a bilingual judge retires or leaves the bench. Every bilingual judge who retires should at least be automatically replaced by another bilingual judge. That would have the advantage of preventing judicial bilingualism from regressing, as we have recently witnessed in Ontario and New Brunswick.