Official Languages Committee on March 7th, 2017

[Linda Lapointe, Liberal, Rivière-des-Mille-Îles, QC]

To correct it or to know about it?

[Prof. Sébastien Grammond]

I don't even have a way to know about it, short of listening, after the fact, to both versions of the arguments, which, in the Supreme Court's case, are available on its website. Nevertheless, it's a difficult process to put in place.

[Linda Lapointe, Liberal, Rivière-des-Mille-Îles, QC]

As the chair said, the person assesses their language proficiency themselves, to some extent. How do you propose the bilingual proficiency of judges appointed to the Supreme Court be assessed? Earlier you said that someone who had studied equally in English and French at university should not necessarily have to be tested. What is the right way, in your view, to assess a Supreme Court judge's bilingual proficiency?

[Prof. Sébastien Grammond]

I'm not an expert on language testing, so I don't have any specific techniques to suggest. I would say, though, that there are cases when it is clearly not necessary to test the person's language's skills. When someone says they are bilingual but their claim is not based on criteria that can be easily checked, it may be appropriate to test that person's language skills.

I am not an expert on the various levels of language proficiency, but what I, as a lawyer, care about is that the person can fully understand everything I have said and everything I have written in my factum. That is my criterion. It may not be the same one a linguist would use, but that is what I expect.

[Linda Lapointe, Liberal, Rivière-des-Mille-Îles, QC]

Thank you very much.

[The Chair, Liberal, Denis Paradis]

Thank you.

Your turn, Mr. Généreux.

[Bernard Généreux, Conservative, Montmagny—L'Islet—Kamouraska—Rivière-du-Loup, QC]

Thank you, Mr. Chair.

Mr. Grammond, there is something I'd like to clarify.

I agree on the importance of having bilingual judges. I am not against virtue. We live in a bilingual country, and we want the people we are talking to, in either language, to understand us. That is something we all agree on, as a matter of fact. I do, however, have a reservation about whether it is necessary to enshrine in the legislation a requirement that judges be perfectly bilingual.

[Prof. Sébastien Grammond]

I'm not saying they have to be perfectly bilingual.

[Bernard Généreux, Conservative, Montmagny—L'Islet—Kamouraska—Rivière-du-Loup, QC]

That's precisely what I was getting at. You said earlier that, for a judge to be considered bilingual, they do not necessarily have to be able to communicate in English; they just have to be able to understand it. That means you agree with the government on the type of bilingualism sought among judges. It's not a big deal if judges are not able to express themselves in one language or the other, provided that they can understand someone in that language.

Forgive me, but as I see it, a person is either fully bilingual or not at all. They have to be able to understand and converse. To my mind, that's what it means to be bilingual. It does not mean that someone is unable to communicate perfectly in English while sitting on the highest court in the land. I want to stress the importance of the word “perfectly”.

If I were tested, I could answer the questions and do pretty well, but I would not consider myself to be perfectly bilingual or bilingual enough to understand rulings on constitutional issues or the various matters that go before the Supreme Court. Can someone truly have that degree of proficiency and understand everything they are told?

[Prof. Sébastien Grammond]

Yes.

[Bernard Généreux, Conservative, Montmagny—L'Islet—Kamouraska—Rivière-du-Loup, QC]

You said that, when litigants present their arguments and submissions to the judge in a public hearing, the interpreters do not render exactly what is being said or how it is being said. You are saying that parliamentary interpreters, even those who are here and doing a fine job, are not truly able to render what witnesses say in our committee meetings.

There is a difference between someone who says they are bilingual and someone who truly is. How do we build an evaluation system that can determine whether a lawyer aspiring to join the bench is genuinely bilingual? I'm having a lot of trouble wrapping my head around that, because I want to know who is equipped to say whether a person is truly bilingual.

[Prof. Sébastien Grammond]

As I said, tests for that exist. I think you're confusing perfect bilingualism with the ability to understand.

When we think of someone who is perfectly bilingual, we tend to think of someone who speaks both languages without an accent. Oftentimes, they have one anglophone parent and one francophone parent. The kind of person who comes to mind is quite clear when we think of someone who is perfectly bilingual.

Supreme Court judges do not have to be perfectly bilingual in that sense. The role of judges is not to give speeches or speak to the media. That is why I don't think it's necessary to evaluate their ability to speak the other language. It goes without saying that, if someone is able to fully understand a legal argument, chances are pretty good that they will also be able to converse reasonably proficiently in both languages. I don't think the purpose should be to test the person's ability to write or give a television interview in English or French.

[Bernard Généreux, Conservative, Montmagny—L'Islet—Kamouraska—Rivière-du-Loup, QC]

I see.

[Prof. Sébastien Grammond]

Those are two different levels of proficiency. The one Supreme Court judges should have to have is mainly comprehension.

[Bernard Généreux, Conservative, Montmagny—L'Islet—Kamouraska—Rivière-du-Loup, QC]

I'm going to stop you there. Let's imagine I'm the judge and you are a francophone trial lawyer. I have to communicate and ask you questions. I'm able to understand you, but I can't express myself with a high enough degree of proficiency in French. In that context, you obviously have no choice but to wear an earpiece to understand what I am saying, especially when I am asking questions.

Can the interpreter's translation of the judge's questions to the lawyer or witness deviate from what was said or lack clarity?

[Prof. Sébastien Grammond]

I'm not sure whether you're a lawyer, but—

[Bernard Généreux, Conservative, Montmagny—L'Islet—Kamouraska—Rivière-du-Loup, QC]

No, definitely not.

[Prof. Sébastien Grammond]

—when the judge asks a question, it is much easier to make sure you have understood properly. You can check with the judge.

[Bernard Généreux, Conservative, Montmagny—L'Islet—Kamouraska—Rivière-du-Loup, QC]

I would nevertheless like to know what is different when the communication happens through an interpreter.

[Prof. Sébastien Grammond]

If you were a lawyer, you would know that, very often, judges remain silent during—

[Bernard Généreux, Conservative, Montmagny—L'Islet—Kamouraska—Rivière-du-Loup, QC]

My questions may seem simplistic, but, to my mind, a human being is a human being. If someone is asked a question, in either English or in French, and, in order to understand, that person needs the help of a third party, it is obviously the same both ways. I may be wrong, but that's how I see things.

[The Chair, Liberal, Denis Paradis]

Thank you, Mr. Généreux.

It is now over to Mr. Samson.

[Darrell Samson, Liberal, Sackville—Preston—Chezzetcook, NS]

Thank you, Mr. Chair.

Mr. Grammond, I enjoyed your presentation. I have a lot of questions for you, but little time.

I quite liked what you said about hearings and interpretation. As far as I know, perfection doesn't exist. As I see it, the most important thing is that the judge understand what is being said. I am, however, concerned about the judge not understanding the influence of factors such as culture, rural regions, and ethnic groups.

We are dealing with common law, so we are building on previously rendered decisions. It is often the case that French decisions rendered in Quebec are not incorporated into English common law. That, to some extent, diminishes the influence of the people of Quebec. I believe interpretation and translation should be as accessible as possible. We are talking about law, in other words, about what is legal. That is why I enjoyed that aspect of your remarks so much. Communities and cultures have a major influence.

That said, would amending the legislation mean that the Constitution had to be amended?

[Prof. Sébastien Grammond]

I don't think adding a bilingualism requirement to the Supreme Court Act would necessitate an amendment to the Constitution.

[Darrell Samson, Liberal, Sackville—Preston—Chezzetcook, NS]

Now that is interesting. It is not necessary to amend the Constitution.