Official Languages Committee on Nov. 15th, 2016

[The Chair, Liberal, Denis Paradis]

Friends, since we are ready, let's begin.

Welcome, everyone.

Pursuant to Standing Order 108(2), we are continuing our study on the roadmap and immigration in francophone minority communities.

We are pleased to welcome Daniel Boivin, the president of the Fédération des associations de juristes d'expression française en common law Inc.

Mr. Boivin, welcome.

We will give you about 10 minutes for your presentation on the roadmap, after which we will go around the table for questions and comments. Then we will move to immigration, the topic of the second half, and go around the table again.

The floor is yours.

[Daniel Boivin, President, Fédération des associations de juristes d’expression française de common law Inc.]

Thank you very much.

Mr. Chair, members of Parliament, thank you very much for receiving the Fédération des associations de juristes d'expression française de common law Inc., FAJEF.

The FAJEF brings together seven associations of French-speaking lawyers whose mandate is to promote access to justice in French in predominantly anglophone provinces.

The French-speaking lawyers' associations (AJEFs) are in the four western provinces, in Ontario, in New Brunswick and in Nova Scotia. Together, the seven associations represent about 1,600 lawyers. The number of French-speaking lawyers goes up every year. However, it is important to note that the FAJEF and AJEFs are not defined by the number of lawyers we are representing, but rather by the francophone population to whom the associations provide legal services.

The FAJEF's seven member associations provide services to the vast majority of francophones in minority settings in Canada. In the absence of AJEFs in the other provinces and territories, the FAJEF acts as a nexus between francophone communities and the legal network. In the provinces and territories without an AJEF, the work is monumental. I will talk about that issue a little later in my remarks.

The FAJEF works closely with its AJEF network and national legal organizations, such as the Canadian Bar Association (CBA). From a community point of view, the FAJEF works closely with the Fédération des communautés francophones et acadienne du Canada (FCFA), which has appeared before you. Actually, the FAJEF is a member of the FCFA.

For about three years, the FAJEF has been working closely with the Réseau national de formation en justice (RNFJ), a major network that brings together various training institutions outside Quebec, such as the jurilinguistic centres in Moncton and Ottawa, the Centre canadien de français juridique and a number of colleges, including the Cité collégiale, Collège Boréal and the Collège communautaire du Nouveau-Brunswick, as well as universities, such as the law schools of University of Ottawa, Université de Moncton, Laurentian University and Université de Saint-Boniface. You know those institutions well.

My first remarks are about the roadmap.

As you probably know, the most recent roadmap has targeted two pillars of the justice system: training and information. Those are two extremely important pillars and the FAJEF agrees that they need to be considered priorities.

Important and beneficial projects have been carried out under those two pillars. However, by limiting the funding for the training and information pillars, the 2013-18 roadmap had a significant negative impact on the AJEF network. It actually eliminated the funding for activities outside those two pillars. It ended up eliminating the funding for activities meant to strengthen the ties between the legal community, the organizations in the legal community—the bar associations and the law schools—between the francophone community and the legal francophone community, and between provincial governments and other organizations of the francophonie.

Those activities, which were developed under the previous roadmap, had helped revitalize the AJEF network and the FAJEF. In Ontario, for instance, they also helped create a positive climate of co-operation between the francophone legal community and the Government of Ontario. As a result, major projects were born, but they no longer fall under mandatory funding in the roadmap ending in 2018.

Creating a solid network between the various community stakeholders makes it possible to better use each other's strengths and to identify effective synergies. However, networking is time-consuming for the AJEFs and the FAJEF on site. That's time, money and investments in time that a number of them cannot afford or they cannot fully exploit.

The FAJEF's first recommendation to the committee is that any new action plan provide for adequate, multi-year funding for the AJEF network's activities that seek to strengthen the ties between the legal community of the majority and the legal community of the minority, as well as the ties that may exist within the francophonie, so that the different sectors work better together.

In terms of FAJEF’s second recommendation, as you may have seen, there are no AJEFs in Newfoundland and Labrador, Prince Edward Island, and the three northern territories. The absence of AJEFs in those territories and provinces undermines the development of those French-speaking minority communities and the use of French in the legal sector. Those francophone communities face great challenges and would benefit from greater support.

Support for access to justice in French should eventually be provided through an AJEF in the provinces where the organization is absent. However, it is an illusion to think that the AJEFs would be viable without any preliminary pioneering work.

In terms of developing the network, the AJEFs and the FAJEF are ready to play that role in the provinces where they are not represented, but they need to receive the required resources to be able to go into the communities where they are not represented yet, to clarify the needs, the potential players and possible solutions in order to eventually create AJEFs.

The FAJEF's second recommendation is that adequate and multi-year funding be included in the action plan to allow the justice sector to benefit from a true Canada-wide presence.

In terms of the third recommendation, thanks to the information pillar in the latest roadmap, a number of legal information centres able to serve francophone clients have been appearing in the past few years in Ontario, Nova Scotia, Manitoba, Saskatchewan and Alberta. Those centres, which serve clients directly, have become essential to ensuring access to justice in French. I will have a few comments on that when I talk about immigration.

There are three bilingual legal information centres in Ontario, Nova Scotia and Alberta, as well as two centres that are exclusively francophone. Ontario is an example of bilingualism, but its bilingualism is safeguarded by the francophone community. So the francophones are the ones providing the French-language services, and the services in the majority language. Almost all the centres have a service centre for individuals and provide programs and information sessions to the groups they serve.

The legal information centre model has already demonstrated that it has been extremely useful for the community. However, it is unrealistic to think that the users could pay for those services. So those services can exist only with the contribution of government players.

The FAJEF's third recommendation is that there be adequate and multi-year funding so that the legal information centres can continue their good work in the communities. In addition, the FAJEF recommends that the funding allow for more consultation between those organizations to achieve the type of synergy that teamwork can create.

As for the fourth recommendation, for francophone litigants to have access to justice in French, it is essential that the various players in the justice system, particularly lawyers and judges, but also clerks, mediators, police officers, probation officers and paralegals, have access to professional training in French and in legal French. For those who want to work in the justice sector, it is also important to have access to college and university training in French.

In terms of access to justice, the most frequently noted roadblocks are the lack of bilingualism or insufficient bilingualism among the major players in the judiciary. For a long time, you have been hearing the AJEFs and the FAJEF talk about the insufficient number of bilingual judges. However, that's not the only problem. Some judges who say that they are bilingual are not sufficiently fluent in French to be able to fully provide the services. It is also important to note that, even when the judge and the lawyers are bilingual, if the other players in the courtroom—the clerks and police officers—are unable to speak French, the judiciary cannot operate in a fully bilingual way.

The FAJEF's last recommendation this morning is that there be increased, multi-year funding as part of a brand new action plan to expand the availability of training in legal French and of professional, college and university training in French for legal professions.

[The Chair, Liberal, Denis Paradis]

Thank you very much, Mr. Boivin.

We will now have questions.

I will ask Ms. Boucher to start.

[Sylvie Boucher, Conservative, Beauport—Côte-de-Beaupré—Île d’Orléans—Charlevoix, QC]

Thank you, Mr. Chair.

Good morning, Mr. Boivin. That's very interesting. What you want is clear.

When we talk about the legal field, there's the federal level—that's us—and the provinces. You have to work with the federal and provincial governments in that setting. Do you have agreements with the provinces? How much money would you like the Liberal government to invest so that you can operate properly and so that there is a synergy, as you say? That's important and it does not come automatically with the funding. All the stakeholders must want to work together too.

[Daniel Boivin]

The amount needed for each province depends on the people who receive the services. Generally speaking, the amount required in each province is what would ensure a presence for each of the AJEFs and the FAJEF. Having a player, someone whose job is to be in the community and to forge ties with the legal community and the players in the other sectors of the francophonie, makes it possible to network and to be present, supporting revitalization. That also enables someone to listen to the community in order to tailor the projects and activities of the legal network to the individual needs of francophone communities.

[Sylvie Boucher, Conservative, Beauport—Côte-de-Beaupré—Île d’Orléans—Charlevoix, QC]

We talked about bilingual judges and the entire legal apparatus that should be bilingual. That work should be done at the provincial level as well. How do you bring the provincial and federal governments together when we know that some provinces are very cautious about accountability? We give money to the provinces, and the provinces earmark it for certain programs. We have our own programs. How do you bring everything in line? Do you have agreements with the provinces?

[Daniel Boivin]

Ontario is a success story and there are agreements with the provincial government. AGEFO has extensive ties with the federal network and it has a direct working relationship with all the departments involved in justice, be it the attorney general, the solicitor general or Public Safety Canada. A consultation table has been set up at the provincial level for all those working in the justice sector to meet and identify the community needs. Community groups are added to this focus, such as the CALACS for women who need services, child services or anything justice-related.

So it's an example of a project where someone is able to have ties in the community and this dynamic can be created. That's what enables us to get a little funding from the provincial government for a project, a combined effort with another community group for another project, to finally move things forward. The system of projects in silo, which is the model used in the roadmap ending in 2018, makes flexibility more difficult because everything has to be defined by project. Without that flexibility, it is not possible to seize some opportunities to bring everyone together.

[Sylvie Boucher, Conservative, Beauport—Côte-de-Beaupré—Île d’Orléans—Charlevoix, QC]

I have one last question for you. Ontario's success could be a pillar for the other provinces outside Quebec. How do you explain that, in some provinces, people still don't have access to justice in French?

[Daniel Boivin]

It's a matter of linguistic authority. Unfortunately, some provinces don't have the same rights of access to justice in French as those in Ontario. However, people can certainly have access to justice services in French everywhere when it comes to criminal law. So we have to provide services.

In some provinces where there is no access to civil justice in French, the AJEFs work very hard to provide the necessary basic services so that at least the federal services are given. Once this base exists, they will be able to provide other types of services. We build on the minimum required under the Constitution, and the provinces are gradually increasing the services they offer.

Many services are now offered in French in Alberta. That is how it worked. Manitoba is a province where French has historically been well represented. I will be in the province next week to talk to the English-language bar association about services in French. We can build on that.

[The Chair, Liberal, Denis Paradis]

Thank you very much.

Go ahead, Mr. Lefebvre.

[Paul Lefebvre, Liberal, Sudbury, ON]

Thank you, Mr. Chair.

Mr. Boivin, your presentation was excellent. Thank you for listing your requests. It was very clear.

I want to discuss your first and fourth recommendations.

Your first recommendation is that adequate funding be provided to support networking between the majority and minority legal communities and governments. You said that the previous roadmap provided funding for this but the recent roadmap does not.

I know you've spoken about it, but I'd like you to come back to that. What are the successes? What are the problems with the lack of funding for the two roadmaps in this area?

[Daniel Boivin]

The first plan that allowed this was what we called the Dion plan. It offered the possibility of basic funding, as it was called at the time—the terms have been changed a bit since then. Such permanent funding revived the FAJEF and the federal network of all the associations because it was possible to establish a presence in every province.

This created a network of people who talked to each other. With a network comes collaboration, and several national projects have been launched.

The roadmap was created, and funding was then based on well-defined projects. Since the network already existed, gains were not lost everywhere, but many provinces that had not received as much funding per project had to give up on maintaining a presence.

Extraordinary projects have been set up focusing on training and information, which are undoubtedly very important. However, the need for funding per project and for those projects to be defined within that dual focus has made us lose a little flexibility to adapt. And as I said earlier, it has also lost us the possibility of seeing more “one-off” projects in a community.

Without making it into a federal funding project, there could be some collaboration with seniors, for instance. The Ontario elder abuse project is not a national program, but it was created because the AJEFO had a presence in the francophonie network and someone in the seniors network identified a very specific need.

This flexibility, which is ensured by the presence of each AJEF, helps to identify needs and create projects more easily, but also to ensure that the same thing is not repeated in every province and every network. We use the strengths of each one, which we are familiar with because we are in the network. This would be much more difficult without a presence.

[Paul Lefebvre, Liberal, Sudbury, ON]

Thank you.

Your fourth recommendation is for funding to increase the training provided.

I am a graduate of the University of Ottawa, where you teach evidentiary law. I have practised law in French in Ontario. I did corporate law. We were two lawyers and we could speak in French. We did a commercial transaction, and we wanted the documentation in French, but our assistants couldn't help us because their training had been in English.

Could you tell us about the challenges related to the lack of training for administrative teams in the minority legal environment?

[Daniel Boivin]

Thank you. That is an excellent question.

Thirty years ago, we wanted to train lawyers. So we created programs in the faculties. The programs at the University of Ottawa and the Université de Moncton are strong and help to train many lawyers. Other law faculties also have French programs that allow francophones to choose to go to anglophone faculties to continue to improve their legal French.

So we are strong in that respect. However, when only lawyers speak French in a courtroom or in a commercial transaction—your example is excellent—and paralegals are unable to write documents in French, it becomes much more expensive for clients. Everyone is ready to work in French before the courts, but all the players we don't think about as much, including clerks and paralegals, are vital for the system to work.

We are strong in terms of training lawyers in French, but now we need to train other players in the legal system. The police need to be trained not only on language rights, but also on the terminology to be used. College-level programs, such as those for becoming legal assistants or paralegals, need to be in French. Without this support system, the legal system will not be able to move forward more quickly.

[The Chair, Liberal, Denis Paradis]

Thank you.

We will now move on to Mr. Choquette.

[François Choquette, NDP, Drummond, QC]

Thank you, Mr. Chair.

Mr. Boivin, thank you for your presentation today. It was really very interesting. Access to justice is something I want to promote. Perhaps you know that my predecessor, Yvon Godin, worked very hard on this matter. He introduced bills on this.

We currently have a policy on the bilingualism of Supreme Court justices. People are saying that legislation should be passed to ensure that this policy continues.

What does your federation think?

[Daniel Boivin]

The current policy is excellent, but the network of francophone lawyers has long said that there should be legislation.

I worked with Mr. Justice Rowe at Gowling WLG before he left for Newfoundland and Labrador. He is functionally bilingual. That is the kind of appointment that should always be made to the Supreme Court. If this policy is not consolidated by law, a future government could take a different direction. Supreme Court appointments last a very long time. If the entire group of justices cannot work in French, it may cause problems. The FAJEF welcomes the current policy, but it would be very good if it were permanent.

[François Choquette, NDP, Drummond, QC]

Thank you very much.

You mentioned the problems of self-assessment for superior court judges. There is a 2013 report from the Official Languages Commissioner, which you may be very familiar with, that focuses specifically on access to superior courts of justice. It had been shelved by the previous government, but the current government seems to want to bring it centre stage again.

Were you consulted for that report? Minister Joly told us that steps have been taken. Were you consulted about the review?

[Daniel Boivin]

The FAJEF is working very closely with the Department of Justice on all these projects. This problem was identified a long time ago. Most lawyers have argued—and I am one of them—that the level of technical language used by some witnesses in court to explain concepts was difficult to understand because the level of French was not advanced enough.

We can look at some specific examples with the Department of Justice. This problem was raised a long time ago by several organizations, including the Canadian Bar Association.

[François Choquette, NDP, Drummond, QC]

Do we know how many of the 24 new judges appointed to superior courts in the past year are bilingual? Are we continuing to request self-assessment? Has further assessment of their language skills been suggested?

[Daniel Boivin]

Several francophone judges have been appointed. We know that these people are capable of hearing cases in French.

This is not a problem for some people, and the community realizes this. However, it is a little difficult for the francophone community to test this once the person is on the bench. If there was a way to consistently assess language capacity, a judge who had just been appointed to the court would not find it insulting to have to take that kind of test. By subjecting everyone to the same type of assessment, we would have much more measurable results.

[François Choquette, NDP, Drummond, QC]

The Commissioner of Official Languages also presented further evidence. Some judges are bilingual, while other judges who are not really bilingual, as you mentioned, hold designated bilingual positions. Those bilingual judges are required to take almost all the cases in French, and sometimes those cases are less interesting, legally speaking. The bilingual judges are frustrated about not taking other, more important cases because there aren't enough bilingual judges.

Do you hear this kind of thing as well? What recommendations would you make?

[Daniel Boivin]

There are some very interesting and very important cases in the French community. It's important not to think that all cases in French are less important.

That said, the fact that the same judge is always the person designated for bilingual trials greatly decreases flexibility. That is one of the problems we have. If this sole bilingual judge is assigned to a long trial in French or in English, there is no one else to hear cases in French. That is one of the practical aspects of that.

Unfortunately, many people in the legal community misunderstand the language capacity required to hear trials. In some cases, it isn't just the law that is complicated, but also the subject and the evidence. When dealing with a physical injury issue where very complex medical evidence is given, the judge's language ability must be very advanced.

In such situations, it would be good to have an assessment at the outset. In addition, the necessary tools should be given to bilingual judges who know that they aren't comfortable enough with these cases so that they can improve their French and not always give their francophone colleagues the more complex cases.

[The Chair, Liberal, Denis Paradis]

Thank you very much.

Mr. Arseneault?

[René Arseneault, Liberal, Madawaska—Restigouche, NB]

Thank you, Mr. Chair.

Good afternoon, Mr. Boivin. Welcome.

I am a proud graduate of the faculty of law at the Université de Moncton, and I have always been a member of New Brunswick's Association des juristes d'expression française. I was on its board of directors for ages. During my student years, I worked at the Centre international de la common law en français, which you surely know. So I'm familiar with the issues.

I'm from northern New Brunswick. Everything I'm hearing are things I haven't experienced. As a lawyer, 95% of my 23 years of practice was exclusively in French. Our judges, prosecutors and police officers are bilingual. The prisons are bilingual, too. However, once we leave northern New Brunswick, which is sort of Canada's testing ground, it looks like the rest of the country.

There are other players in the legal world that we don't think about. Who comes to mind in particular are francophone women accused of a crime who had to serve two or three months in prison. There is no prison for francophone women. The situation is the same everywhere. There are even francophone young men who go to prison and don't have a prison for them. So it's a problem.

I have a thousand questions. I don't want to get carried away. I'm quite familiar with the matter. I want to go back a little to the end of what my colleague Mr. Choquette was talking about. Francophone cases are as interesting as anglophone cases. There is another negative effect of having one bilingual judge. Not only is he compelled to do only this and expects nothing else, but it is our experience in New Brunswick that bilingual judges are in too much demand, much more than their unilingual anglophone colleagues. They work much more because they need to be everywhere and need to travel a lot. They aren't often home, and that causes conflicts in the agendas.

On the topic of agenda conflicts, some cases are delayed because there is no bilingual judge nationally. What is your reaction to that? How can we solve this problem?