Official Languages Committee on Nov. 22nd, 2016

[The Chair, Liberal, Denis Paradis]

The session is now public.

Pursuant to Standing Order 108(3), we move to our study of the translation of Quebec jurisprudence.

It is our pleasure to welcome Antoine Aylwin, the Vice-President of the Barreau du Québec, and Casper Bloom, the Director of the Association of English-speaking Jurists of Québec.

Welcome, gentlemen. I must tell you that I am particularly happy to welcome you, having myself been a former president of the Barreau at another time in my life.

We are first going to hear from Mr. Aylwin for five or six minutes. He will be followed by Mr. Bloom, who will speak for five or six minutes also. After that, we will go around the table and all members of the committee will be able to comment.

Mr. Aylwin, we are listening.

[Antoine Aylwin, Vice-President, Barreau du Québec]

Thank you, Mr. Chair, Mr. President.

Good morning, ladies and gentlemen of the committee and of the staff.

I must thank the committee for the invitation to be part of your work today.

At the outset, I thought about doing my speech in both languages and switching from one to the other, but I thought it would drive the translators crazy, so I'll do my presentation in French to talk about translation in English.

I am Vice-President of the Barreau du Québec. For those who do not know, the Barreau du Québec represents 25,000 lawyers. It is a professional order with a mission, enshrined in law, to ensure public protection. That means that we provide oversight for our members through professional inspection and discipline, as well as acting against any non-member practicing the profession illegally.

However, in a broader sense, the Barreau’s mission to protect the public also includes a social component that extends to all participants in the legal system. It protects the public by safeguarding the rule of law and by taking public positions on a range of legal matters, including the rights of vulnerable people and minority groups, including linguistic groups.

It is with that background that we wish to participate in your work in addressing a very specific aspect of your mandate, that of ensuring language rights in the justice system.

In the Roadmap for Canada’s Official Languages 2013-2018, Justice Canada is committed to continue to help provincial and territorial governments bridge gaps in bilingual service delivery. We believe that, in Quebec at the moment, there is a specific gap with regard to this commitment. We wish to make you aware of it in order to draw your attention to the matter of translating the jurisprudence rendered by Quebec courts.

The Barreau is particularly close to this issue. Under section 133 of the Constitution Act, 1867, a Quebec judge may deliver judgments in French or in English. Section 7 of the Charter of the French Language provides the right for anyone to have judgments translated into either French or English at no cost.

As you may suspect, most judgments in Quebec are rendered in French. Although certain decisions may be translated pursuant to the Charter of the French Language, the great majority of decisions are not. Those that are translated are not necessarily of interest to the legal system as a whole.

In areas common to Canada as a whole, such as criminal law, family law, constitutional law and commercial law, most Quebec judgments are not translated. This wealth of legal knowledge is therefore accessible only to those who understand French. In our view, genuine access to justice requires legal documentation and jurisprudence to be available in both of Canada’s official languages.

I am aware that some may disagree with me, but it is my opinion that the Barreau du Québec has the best lawyers in Canada in its membership, and, as a result, the Quebec bench has the best judges in Canada. Because of their bilingualism and bijuralism, our Quebec lawyers are prominent worldwide, except in English-speaking Canada. Judgments from Quebec have a quality and a richness in the evolution of jurisprudence. That jurisprudence is enriched in turn by judgments rendered in the English-speaking provinces—judgments in English—because they are used, argued and cited in Quebec judgments. But the opposite is not true.

In order to remedy the situation in part, the Société québécoise d’information juridique, or SOQUIJ, the Quebec Ministry of Justice and the various courts came to an agreement in 2003 to translate the jurisprudence. SOQUIJ has funded the translation of 1,350 pages of jurisprudence annually since 2003, about 450 pages per court. Judgments are selected for their Canada-wide interest. It is not a perfect solution, but, given the lack of additional resources, it is a start.

In 2015, it represented 25 judgments from the Court of Appeal, 25 from the Superior Court, and 21 from the Court of Quebec.

I must point out that, between 2010 and 2012, a grant of $200,000 per year was provided by Justice Canada. In the case of the Court of Appeal, we went from 25 or 30 translated judgments to 92 translated in 2010 and 131 in 2011. That was well over the average of about 26 per year when there was no grant. However, the grant was not renewed, bringing us back to the average of 26 judgments.

The official response is that the Access to Justice in Both Official Languages Support Fund does not include the translation of legal texts. We submit that this must change, as must the rules for grants or funding.

This has repercussions on the profile and visibility of the decisions rendered by Quebec courts, as I have just mentioned, and on Quebec jurists. The same debates take place in Quebec and in the other provinces. As a result, there is a duplication of debate, meaning that people do not know whether a matter has already been decided by the courts in Quebec, or, even worse, whether the judgments are contradictory, thereby compounding the phenomenon of the two solitudes of francophones and anglophones in Canada.

It also deprives Quebec anglophones in minority situations of direct access to legal resources in their own language.

I could quote the current chief justice of the Quebec Court of Appeal, Justice Nicole Duval Hesler, or her predecessor, Justice Michel Robert, who have raised these problems and delivered a number of speeches about the issue.

I will use the example of the Quebec Court of Appeal, which has a similar number of judges to the Ontario Court of Appeal. The court in Quebec renders two or two and a half times more judgments than the court in Ontario. In 2015, the Ontario Court of Appeal rendered some 900 judgments compared to 2,178 by the Quebec Court of Appeal. However, of those 2,178 judgments, you will recall, about 1% are translated in Quebec, meaning about 25 judgments in 2015.

In 2015, decisions of the Ontario Court of Appeal were cited more than 1,500 times in all Canadian jurisprudence. The Quebec Court of Appeal was cited only about 300 times, five times fewer, even though it renders twice as many judgments per year.

That reality is not unique to the Quebec Court of Appeal. About 22,000 decisions are published in Quebec from all courts combined. Because of the commitments made by the government and by SOQUIJ, Quebec publishes many more judgments than the other provinces. For example, in Ontario, about 6,000 judgments are published from all courts combined.

There is interest in the translations. Since 2010, the annual number of visits to the SOQUIJ website, which posts the translated judgments, has gone from 5,000 to 18,000. And that is only one way to access those translated judgments. A considerable number of those visits come from English Canada, the United States and even the United Kingdom, with a view to accessing the jurisprudence delivered by our courts in Quebec.

Additional funds would help to increase the reach of Quebec’s courts. It would not only improve access for anglophone minorities to Court of Appeal judgments, but it would also improve access for those in the rest of Canada to a body of jurisprudence that enriches the law in the entire country.

But this is not the only objective in our initiative. We also wanted to draw your attention and your thoughts to the fact that the Canadian Charter of Rights and Freedoms, the Criminal Code, the Divorce Act and the Bankruptcy and Insolvency Act are all matters in federal jurisdiction where it is in our interest for the jurisprudence to be consistent and complete.

We are therefore asking you to consider investing resources, but also to consider collaborating with the various participants in Quebec to develop a strategy to improve translation.

We can also not forget translation quality. This is not just translation; legal translation is a skill in itself.

I will use as an example the Civil Code of Quebec, adopted in 1994 and containing more than 3,000 sections. There were 5,000 changes to the English version because the translation had been poorly done. Correcting the Civil Code took 20 years. Mr. Bloom can tell you about that, as he was very engaged in the process.

So not everyone can be a legal translator just because they want to. That means that judges have to carefully revise translations, thereby adding to a workload that is already very high. It also further delays the translations, which, once again, is a way of reducing access to justice.

Thank you for welcoming us today, Mr. Chair. We are available to answer any questions you may have on this subject.

[The Chair, Liberal, Denis Paradis]

Thank you very much, Mr. Aylwin.

We will now hear from Casper Bloom before we move to members' questions.

[Casper Bloom, Director, Association of English speaking Jurists of Quebec]

Since I represent English-speaking jurists, I'll start in English anyway.

I won't repeat what Antoine had to say on the statistics. The problem is fairly clear.

It should be clear that it makes no sense whatsoever not to have Quebec jurisprudence circulating amongst the provinces, the United States, England, Australia, and all the other English-speaking jurisdictions in the world that read our jurisprudence. Unfortunately, the majority of the decisions that are rendered here in Quebec are not read, not understood, and not cited in the jurisprudence in the other provinces of Canada.

That was also the subject of a complaint made by Michel Robert when he was Quebec's chief justice.

Let us step back a little in time.

I'm the co-chair of a committee of the Montreal bar, which is called “Access to Justice in the English Language”, and I insist on having a francophone co-chair. My first one was Gérald Tremblay, and the one I have now is Pierre Fournier. They are both excellent co-chairs who understand fully the problem.

This committee is composed of lawyers and judges. The juge en chef du Québec insists and is a member of the committee.... I'll go back to Michel Robert, when he was the juge en chef du Québec. At almost at every one of our meetings he would raise the question of the jurisprudence, which is drafted in French in Quebec and is not going anywhere.

In his words, “without a translation, Quebec judgments are not cited. They are not read, they are not understood.” Those are Michel Robert’s own words.

This makes no sense whatsoever, because for what I call the “jurisprudence nationale”, there's no such thing, except in the sense that it's the jurisprudence that's invoked and cited in all the provinces of Canada. The other provinces all exchange their jurisprudence. When they draft a judgment, you'll find that in most of their judgments they're citing other jurisdictions that happen to be the other provinces of Canada and other courts in the other provinces of Canada, but what's happened to Quebec?

Quebec represents a quarter of the country and they're being set aside. They're not being cited. They're not being invoked. That makes no sense. Antoine mentioned that some of the decisions are being translated by SOQUIJ, but the complaints I had were from Michel Robert, and they have been repeated now by the new juge en chef du Québec, Nicole Duval Hesler. She has announced that he is taking his retirement. She sits on my committee and she raises this problem. It's something that on our committee we are all very concerned with.

These are very important matters, both inside and outside Canada.

The decisions and the Canadian judgments are cited and are consulted in the United States, Great Britain, Australia, and in other jurisdictions that use the English language. It's not only, as some may complain, that Quebec is a civil list jurisdiction so it's only civil law. That's not the case at all, and Michel Robert and Nicole Duval Hesler would be the first to tell you that.

As Antoine has mentioned, it's all the criminal jurisdiction and all the other jurisdiction at the federal level. Whether it be in the corporate, the familial, or other areas, the civil list jurisdiction is of importance, apart from what is under federal jurisdiction. What is under Quebec jurisdiction is important, is cited, and is consulted for decisions, so that when they are called upon, they are able to cite those decisions.

When I spoke with both Nicole Duval Hesler and Michel Robert, they pleaded with me to say that we have to do something to provide for a translation service in Quebec that can deal with the decisions and judgments of certainly both the Court of Appeal and the Superior Court, and the Quebec court to a lesser extent, because many of their judgments are and should be of great interest. Leaving out Quebec cases—which represent a quarter of the country—when we cite Canadian jurisprudence makes no sense whatsoever. It's difficult to say that it represents Canadian jurisprudence when a quarter of the country has been left out.

I have spoken to the Department of Justice. I have raised this issue. They understand. They said that, first of all, the reason they cut off the subvention they were giving in the few years that they did so was that they don't subsidize translation. I said, “This is not translation.” It is way beyond translation; we're talking about something much more fundamental than mere translation. Translation can be done by anybody, anywhere. Here, we're talking about what I called earlier the “national jurisprudence”, and it's the jurisprudence for all of Canada that's being considered. We can't look at it as simply a question of translation and the money that's available for it.

[The Chair, Liberal, Denis Paradis]

Mr. Bloom, if I may, I invite you to continue later. I have before me a list of those who want to comment and ask you questions.

[Casper Bloom]

My apologies.

[The Chair, Liberal, Denis Paradis]

No problem.

I am going to give the floor to Ms. Boucher and Ms. Vecchio immediately; they want to share the time.

You each have three minutes.

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

Thank you, Mr. Chair.

My thanks to the witnesses for joining us. This is very instructive.

I have four major questions; I will ask them one after another. You can answer when you can.

We all know that the Criminal Code is in federal jurisdiction but that court administration is provincial. That said, there are shortcomings in Quebec.

Why are cases not translated into English?

You say that small cases are often translated, but not the big ones. How do you explain the unwillingness to translate major cases into English?

In the rest of Canada, are cases translated into French?

Does Bill 101 have anything to do with this situation in Quebec?

[Antoine Aylwin]

Let me start.

In terms of the translation of the judgments, it's not that we refuse to translate the rulings depending on whether they are important or not. Instead, it is a right granted to citizens to request the translation of a ruling. For instance, in a case with an anglophone and a francophone, if the ruling is rendered in English, the francophone citizen may ask to have it translated into their language, and vice versa. The person does not request the translation of the judgment based on the merit or interest in the case, but because it's their case.

That's why I said that, at the end of the day, when we look at translated judgments, we understand that the selection is not necessarily based on the interest of the case.

Furthermore, according to what we are told, the quality of the translations is not the same, because there are two different services.

Since the administration of justice falls under provincial jurisdiction, Quebec's Shared Services Centre supports the judicial translation at the request of citizens. Its teams of translators do the translations to meet the needs of the Government of Quebec. They are not necessarily made up of legal translators. That may explain why the quality is perhaps not the same.

As for SOQUIJ, it translates a limited number of decisions, based on a selection made by the courts according to the interest of the decisions.

For instance, in the case of the 25 judgments of the Court of Appeal of Quebec that were translated, as I mentioned, it was the Court of Appeal that determined that those judgments are important.

Then you asked about translation in the rest of Canada. To my knowledge, there is no translation into French in the rest of Canada, except in some jurisdictions, such as New Brunswick. I have read translations of decisions from the Court of Appeal of New Brunswick. I'm not sure whether that is systematically the case, however. Perhaps you know more about it than I do. I know it is done in New Brunswick because of the province's particular linguistic landscape compared to other provinces. As we know, New Brunswick is a bilingual province.

Your last question was about Bill 101. Earlier, I told you that translation was done at the request of citizens. That's by virtue of a provision in the Charter of the French Language. Section 7 specifically states that people may request the translation of judgments.

In terms of the language of trials, which you brought up at the outset, there are many factors to consider. Trials take place every day in Montreal in French and in English. There are even some that are held in both languages at the same time.

[The Chair, Liberal, Denis Paradis]

Thank you.

Mrs. Vecchio, the floor is yours.

[Karen Vecchio, Conservative, Elgin—Middlesex—London, ON]

Thank you very much for today.

You've noted the fact that things are not translated and that in the Criminal Code we're going to be losing some information, so I'm going to ask you this question.

Is there a solution?

What will the next steps be?

Are any of the provinces doing this properly right now?

You mentioned New Brunswick. Do we know anything else in terms of what you're talking about? Is it literal translation? Does it have the necessary feel of what's going on? Are there any provinces that are doing it correctly? How can we have a solution towards this?

[Antoine Aylwin]

If you don't mind, I will not tell you which Canadian provinces are doing the work properly and which ones are not. As I see it, it is basically done according to the demand. In Ontario, many judgments are rendered in French. It is much easier in Ontario to have a francophone judge hear a trial than in other provinces, particularly in western Canada, simply because of numbers. There are 50,000 lawyers in Ontario. There are also more judges, more francophones and more francophone communities.

For the time being in Quebec, we are managing to adjust in order to integrate English-language jurisprudence. We read it and we argue it. It's not the ideal scenario, but we are able to adjust because the vast majority of legal professionals are bilingual.

However, the reverse is not true. Your work has probably allowed you to see that bilingualism is much more widespread in Quebec than in the rest of the country. That is why we see this as the main problem.

[The Chair, Liberal, Denis Paradis]

Thank you.

Mr. Arseneault, the floor is yours.

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

Thank you, Mr. Aylwin and Mr. Bloom. It's really interesting. It is fascinating to see how Canada's reality can be diametrically opposed depending on whether you are an anglophone minority in Quebec or a francophone minority outside Quebec.

Mr. Aylwin, you are a bit young to have experienced this, but during my third year of law school, Quicklaw appeared. We used old computers that started with a crank and a choke.

[Voices]

Ha, ha!

[An hon. member]

Are you that old?

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

I for one was trying to look for Quebec jurisprudence for cases under the Criminal Code, not under the Civil Code, federal courts and so on. I wanted to get my hands on judgments in French.

I believe that decisions are systematically translated in New Brunswick, if I'm not mistaken.

The company that ran the Quicklaw service, a private company like any other, chose to publish the decisions in English only. We had to fight with the people in the company to post the decisions in both official languages.

Forgive my ignorance, but could you tell me how translation is funded. In New Brunswick, does translation fall under the province only? Ontario must surely translate its decisions, at least some of them. Are the provinces or the federal government funding it?

[Antoine Aylwin]

I'm sorry, but I don't know the answer to that question.

[Casper Bloom]

I believe that it's both.

To add to what Antoine was saying earlier, in Ontario they have made a determined effort to provide judgments in French. Of course, in Ontario, they have a commissioner who looks after francophone affairs, François Boileau, whose job it is to do what Graham Fraser was doing federally. New Brunswick also has a French commissioner. There again, they have someone to look after their affairs.

In Quebec, there's no such animal. There's nobody to do that.

It's important to have that commissioner, to have somebody who is looking after the interests of the francophones in Ontario and in New Brunswick, and of course, since the Supreme Court decision in the renvoi involving Manitoba.... I don't believe they're dealing with judgments, but for their laws, of course, by law, they have to translate their laws into French, and that's a good thing.

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

I'm a French-speaking lawyer, but, in your case, it's the opposite.

Does the Association of English Speaking Jurists of Quebec put pressure on the Government of Quebec to comply with the legal obligation to translate at least the decisions of the superior courts?

[Casper Bloom]

Yes, and it goes even further than that.

The Government of Quebec is not really interested in minorities in Quebec. That is why we were forced to go to the federal government for help, including with legislation. Earlier, Mr. Aylwin mentioned what happened with the Civil Code. The Civil Code—

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

Mr. Bloom, I'm sorry to interrupt you, but I have six minutes only and a lot of questions.

You are saying that the Association of English Speaking Jurists of Quebec is putting pressure on the provincial government, but the doors are shut in its face and it is faced with resistance.

[Casper Bloom]

The pressure we've exercised has not really led to any results.

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

Okay.

I'll jump from pillar to post and go back to what Mrs. Boucher was saying.

There's something I didn't understand just now. If a Court of Appeal decision is written only in English, individuals can ask to have the decision translated. Is that correct?

[Casper Bloom]

Yes, that's correct.