Official Languages Committee on March 7th, 2017

[The Chair, Liberal, Denis Paradis]

Our hearing is now public.

It is our pleasure this morning to welcome Mr. Sébastien Grammond, Professor, Civil Law Section, University of Ottawa.

Mr. Grammond, welcome to the Standing Committee on Official Languages.

[Professor Sébastien Grammond, Professor, Civil Law Section, University of Ottawa, As an Individual]

Thank you.

[The Chair, Liberal, Denis Paradis]

We have an hour left. We are going to proceed as we usually do, which is to say that you will have about 10 minutes to make your presentation. Afterwards, we will have questions and comments from the members of the committee.

[Prof. Sébastien Grammond]

Thank you.

I will make my presentation in French,

but I'll be happy to answer questions in both official languages.

The main focus of my presentation today will be the bilingualism of Supreme Court justices.

I know that you are also studying other topics, and it will be my pleasure to speak about them to the extent that I know them, but I mainly examined the issue of bilingualism at the Supreme Court.

On the one hand, I will attempt to explain why it is essential that Supreme Court Justices be bilingual, and on the other, I will endeavour to demonstrate that it is desirable and possible to include that requirement in legislation, since I know that some doubts have been expressed on that.

Let's begin with the issue, from the perspective of political justification, of why Supreme Court justices need to be able to hear cases in French and English.

Let's look first at the hearing stage, when lawyers verbally address the court. There is a simultaneous interpretation service at the Supreme Court, but despite the very high quality of that service, it is mission impossible to do justice to all of the subtlety and details of the legal arguments via simultaneous interpretation.

In a paper I published with my colleague professor Mark Power, we gave examples taken from a case I pleaded before the Supreme Court. Those examples showed that certain sentences had been mistranslated. In some cases, arguments had been omitted, and in others, the interpreter said exactly the opposite of what I had said. This type of thing is certainly not desirable in a case being pleaded before the Supreme Court.

If my colleague Michel Doucet from the University of Moncton were with us today, he would say the same thing. He happened by chance to hear his submission being interpreted into English on CPAC, and he said that he understood absolutely nothing.

We must also take into account the decision process at the Supreme Court before the hearing. The hearing is as it were the culmination of a whole process at the Supreme Court. There is a whole procedure that precedes the hearing, and this mostly involves written submissions. Each party files a brief of about 40 pages, and the court then analyzes these briefs, that are never translated. If a party files a brief in French, a judge who does not understand French will be unable to understand the written arguments at that stage of the process. The decisions of the appeal court, of the trial court, and the documents, are never translated either. An anglophone judge will not be able to apprise himself of these crucial elements of the file if he does not understand French. Consequently, it is also essential that judges be bilingual at that stage of the process before the Supreme Court.

I would add that the Supreme Court is frequently, if not in most cases, called on to interpret bilingual acts. By “bilingual acts” I mean the Canadian Charter of Rights and Freedoms, the Criminal Code, all of the federal acts, the acts of several provinces—Quebec, Ontario, New Brunswick, and Manitoba—as well as the laws of other provinces whose official texts are in both languages.

In order to interpret the law, you ultimately have to be able to understand both versions. And in fact the Supreme Court sometimes rules on an interpretation issue concerning an act by pointing out that the French version does not contain the ambiguities that are found in the English version and had given rise to certain difficulties, if one had set aside the French version.

I think that a judge should be able to read both versions of the acts he or she is called upon to interpret as a last resort. I also think that as a national institution, the Supreme Court should be able to draw on the legal and non-legal sources everywhere in the country. A judge who speaks only English would be unable to benefit from all of the legal doctrine that has been written in French, and would thus have to ignore a whole swath of the Canadian legal corpus.

Similarly, we expect that judges will be well aware of the state of society. Obviously, an English-speaking judge will not be able to have direct access to francophone society, to read its newspapers or listen to the news and immerse himself in Quebec society and francophone communities. You will agree that you can only have a very partial idea of Quebec society if you only read the National Post. By the same token, you will have a very incomplete idea of Canadian society if you only read Le Devoir. That is why it is advisable that the justices of the Supreme Court, which is a national institution, be able to understand both languages.

In the process that led up to the appointment of Justice Malcolm Rowe last summer, the Prime Minister announced that he would only choose bilingual candidates. Since such a policy could be changed by a future government, it would be preferable in my opinion to enshrine it in law.

Some doubts were expressed following a well-known ruling of the Supreme Court, the Reference re Supreme Court Act, a judgment which was rendered in 2014. Some of the comments made by the court led a certain number of authors to say that it would from now on be impossible to require that Supreme Court justices be bilingual without amending the Constitution. They based that statement on a brief paragraph where the court stated that the composition of the Supreme Court was now protected from changes made by the legislator without going through the constitutional amending process, and that the composition also included eligibility. In this regard, the court referred to sections 4, 5 and 6 of the Supreme Court Act. Certain authors stated that Parliament could no longer touch sections 4, 5 and 6.

As is the case for all of the decisions of the court, those comments by the Supreme Court must be read in light of the case that was submitted to it, which was the appointment of Judge Nadon and the necessary conditions for a judge to be considered to be a judge from Quebec, if I may put it that way. The court was not called on to rule on whether Parliament could still add the requirement of bilingualism to the Supreme Court Act.

In order to understand my advice on this topic, we have to make a distinction between two effects of the Constitutional amending formula. What I'm going to say is somewhat technical, and will likely be published soon in a law review, with a lot of explanations.

Basically, the constitutional amending formula does two things. First, it enables a certain number of legislative bodies, such as Parliament and the legislative assemblies of a certain number of provinces, to amend the text of the Constitution if that is what they want to do. It has an enabling function.

The constitutional amending formula also shields certain matters or certain areas from unilateral action by the federal Parliament. It excludes certain things from the jurisdiction of Parliament. That is what the Supreme Court stated in the decision I just cited. However, the areas that are excluded from Parliamentary jurisdiction are much more limited and restricted than those that would fall within the scope of the enabling function, that is to say all those things you could include in the Constitution if you wanted to do so.

These areas that are excluded from parliamentary jurisdiction must be delineated according to the objectives sought by those who agreed on the constitutional amending formula in 1981-1982. That is in fact what the Supreme Court says in the Reference re the Supreme Court Act. The objective was to protect Quebec representation at the court, for all sorts of obvious reasons, and not to pursue other purposes.

In my opinion, the bilingualism requirement for Supreme Court justices is not one of the areas that has been excluded from the jurisdiction of Parliament by the constitutional amending formula. Today, Parliament could still adopt an act establishing such a requirement. I would add, even for those who feel that sections 4, 5 and 6 of the Supreme Court Act have been “constitutionalized”, that there is nothing that prevents you from adding criteria, if those that currently exist are not amended.

Sections 97 and 98 of the 1867 Constitution state that the judges of superior courts must be appointed by the Bar of each province, but it is not specified that you have to have been a member of the Bar for 10 years. That condition was added by an act of Parliament, section 3 of the Judges Act, and to my knowledge no one is suggesting that that section is invalid because it adds a condition to the requirements contained in sections 97 and 98 of the Constitution.

The fact remains that the opinion I am expressing today is not shared by all constitutional law specialists. That is why it would be advisable for the federal government to refer this issue to the Supreme Court, so that it may clarify the consequences of its 2014 decision regarding Parliament's capacity to legislate on the Supreme Court.

We must understand that in this matter, the Supreme Court spoke in very general terms, and this may raise considerable doubts, for instance on whether Parliament may amend certain aspects of the court's jurisdiction. In fact, Parliament did so in 1991 and 1996. If we push the rationale too far, those amendments would be invalid.

Consequently, there are good reasons to ask the Supreme Court to clarify the scope of its 2014 ruling, as well as the limits of that famous area which is determined to be outside the jurisdiction of Parliament. I am also thinking of the issue of regional representation on the Supreme Court. Currently, nothing in the law discusses that, with the exception of Quebec, of course, but there are people nevertheless who have claimed that that has been constitutionalized.

I think that for all of these reasons, it would be advisable that the government ask the Supreme Court to clarify these issues.

Thank you.

[The Chair, Liberal, Denis Paradis]

Thank you very much, Professor Grammond. This is a timely issue.

We will now have the questions and comments period.

Mr. Généreux, you have the floor.

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

Thank you, Mr. Chair.

Mr. Grammond, thank you for being here with us today.

I am married to an anglophone with whom I discuss things in English, as well as in French. Some people I speak to could believe that I am bilingual because I manage relatively well in English. In my opinion, however, I am far from bilingual. I don't have the vocabulary that would allow me to discuss anything from nuclear energy to dogs, or many other topics. Obviously, there are topics about which I could not hold a conversation, because I don't have the necessary vocabulary.

At the Office of the Commissioner for Federal Judicial Affairs Canada, there is a brief form that asks people to answer four questions that basically ask them if, without further training, they would be able to read or understand court documents in French. For my part, I would answer “yes”, obviously. All of these questions are asked in English and in French. I could answer “yes”, because I can read the questions and understand them without additional training. I would be able to understand most of what is in English, even if that is not my first language.

That said, does the fact that I answered “yes” to these questions make me a bilingual person?

In the form, it says that in order to meet the linguistic requirements for potential judges, their working knowledge of both languages may be evaluated. That is what it says in the documents we were given. If that is the only means used to determine if a lawyer is bilingual enough to become a judge, I have some serious misgivings.

Are there much more complete procedures used to analyze the quality of the French or English of the candidates before they are appointed?

[Prof. Sébastien Grammond]

I know that there are ways to assess the linguistic competency of people. I'm not a specialist in these evaluation methods. I think this is a matter for translation or education specialists.

I believe I understood that in the context of the process you mention, questions are put to the candidates, and that the government, through the Office of the Commissioner for Federal Judicial Affairs, reserves the right to have them undergo tests. I don't know if that was ever done, but I expect that it was not necessary for certain candidates, given their experience. In the case of someone who has diplomas from both an anglophone university and a francophone one, it may have been deemed unnecessary to go further, given the circumstances. I don't know what policy the Office of the Commissioner for Federal Judicial Affairs adopted in such cases. It could be useful to administer various types of tests.

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

Let me be the devil's advocate. Earlier you referred to interpreters in one particular case. I imagine that was in the context of one of your representations before the court. You said that the interpretation did not render what you had said. You also mentioned that the interpreters were very qualified, and could provide quality interpretation, and so on.

Human beings are what they are, with their imperfections and, in many cases, perfections. People who are really specialized in interpretation go easily from one language to the other. But despite their considerable experience and competence and fluency, these people cannot translate the submissions in question.

Given these facts, how can we ask a judge or lawyer to understand exactly what is said in French or in English?

Does such a capacity even really exist?

[Prof. Sébastien Grammond]

Of course. I think we must make a clear distinction between the various points raised in your question. You said that even the best interpreter doesn't get the job done. However, the interpreter is asked not only to understand what was said, but also to immediately express exactly the same idea in another language, which is extremely difficult.

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

Isn't the judge able to do the same thing?

[Prof. Sébastien Grammond]

No, I don't think so.

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

No?

[Prof. Sébastien Grammond]

The idea is that the judge must be able to understand without the help of an interpreter. I think it's entirely possible.

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

Sorry, but when a lawyer argues a case before the Supreme Court judges, shouldn't the judges be able to do the same thing as an interpreter?

[Prof. Sébastien Grammond]

No. When I listen to someone speaking English, I don't translate what the person is saying into French in my head. I understand the person in their language.

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

In their language.

[Prof. Sébastien Grammond]

When I argue cases before the Supreme Court, I'm sure the bilingual anglophone judges understand me and know exactly what I'm saying. I'm sure of this. I understand it's accepted that perfection doesn't exist and that I'll argue cases before people who won't necessarily be called “perfectly bilingual”. However, I think—

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

Sorry, I'll stop you—

[The Chair, Liberal, Denis Paradis]

Mr. Généreux, I have to move on to the next turn. Maybe you can let Mr. Grammond finish responding.

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

You said that perfection doesn't exist and that I should understand this.

[Prof. Sébastien Grammond]

I meant that, when I speak to the Supreme Court judges, I'm sure they understand both languages and fully understand my legal arguments.

I have major problems when someone doesn't understand what I'm saying in the language I'm speaking. I don't like the fact that the person must rely on an interpreter who, despite their best intentions, makes significant errors when translating what I'm saying. I have a great deal of difficulty accepting this.

[The Chair, Liberal, Denis Paradis]

Thank you.

Mr. Arseneault, you have the floor.

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

Mr. Grammond, thank you for meeting with us. We have only six minutes, and time is going quickly.

What do you think is the easiest way to immediately ensure the Supreme Court of Canada judges are bilingual?

[Prof. Sébastien Grammond]

I think we've been saying it for a long time. We must adopt legislation that makes bilingualism a requirement or condition for appointment.

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

Okay.

In light of the Nadon case, would the government be able to adopt legislation without having to amend the Constitution?