Evidence of meeting #54 for Official Languages in the 42nd Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was quebec.

A recording is available from Parliament.

On the agenda

MPs speaking

Also speaking

Claudia P. Prémont  Bâtonnière du Québec, Barreau du Québec
Sylvie Champagne  Secretary of the Order and Director of the Legal Department, Barreau du Québec

12:05 p.m.

Liberal

The Chair Liberal Denis Paradis

The meeting is now public.

Pursuant to Standing Order 108(3), we are proceeding with our study on full implementation of the Official Languages Act in the Canadian justice system.

I would like to welcome to the Standing Committee on Official Languages our two witnesses from the Barreau du Québec: Claudia Prémont, head of the Barreau, and Sylvie Champagne, secretary of the order.

As a member of the Barreau, I am very proud to have you both here.

You will have 10 or so minutes to present the Barreau's position on the topic of study. After that, we will move into the question and answer portion.

Ms. Prémont, you may go ahead.

12:05 p.m.

Claudia P. Prémont Bâtonnière du Québec, Barreau du Québec

Mr. Chair and former president of the Barreau, vice-chairs, and ladies and gentlemen of the committee, good morning. It's a tremendous pleasure to be here to discuss this extremely important topic.

I would like to begin by thanking the committee for inviting the Barreau du Québec to be here and share its views on official languages in the judicial and legislative arena.

My name is Claudia Prémont, and I am the president of the Barreau du Québec. With me today is Sylvie Champagne, the secretary of the order and director of the Barreau's legal department.

The Barreau du Québec is the professional order representing some 26,000 lawyers in Quebec. It has a mandate, enshrined in law, to protect the public. That mandate includes protecting the public in their dealings with lawyers. To that end, the Barreau has a range of measures at its disposal. They include responsibility for admission to the profession, peer review and disciplinary oversight of members, and management of prosecutions against non-members for practising the profession illegally.

In a broader sense, the Barreau's mandate to protect the public also includes a significant social component that extends to all users of the justice system. The Barreau protects the public by safeguarding the rule of law and taking public positions on a range of legal issues, particularly the rights of vulnerable people and minority groups. It is with that background that the Barreau is pleased to participate in the committee's consultations today.

The Barreau is especially concerned by respect for language rights within the justice system. It is our view that the issue gives rise to three major areas of concern for Quebec. I will use the few minutes I have to summarize them for you, with the knowledge that you have seen our short brief.

The first concerns the bilingual proficiency of Supreme Court of Canada justices and federally appointed judges. The second pertains to Quebec's constitutional obligation to draft its legislation in English and French. The third involves the translation of its court decisions.

First, with respect to the bilingual proficiency of Supreme Court of Canada justices and federally appointed judges, the Barreau du Québec is satisfied with the new process announced by the Prime Minister for appointing Supreme Court justices and the bilingual requirement it sets out. It addresses many of the things we have been calling for over the past few years. The ability to be understood by a judge in English or in French is a fundamental right that guarantees the equal status of the country's two official languages. As far as the appearance of justice is concerned, it is extremely important for justice system users that the judge not need the help of interpreters.

I should point out that the Barreau du Québec spoke out on the issue in 2011, 2014, and 2016. The new process seeks judges who are functionally bilingual. In our view, that includes the ability to not only read and understand the language of the parties before the court, but also to ask questions in that language. We see it as crucial that judges have this level of bilingual proficiency so that they can converse and ask questions in the language.

Although we are very pleased with this change, we recommend that the Supreme Court Act be amended so that future governments are also bound to respect this requirement.

As you know, some jurists argue that, because the change will alter the makeup of the Supreme Court, a constitutional amendment is necessary. That would require the approval of seven provinces accounting for at least 50% of the population of Canada as a whole, as interpreted by the Supreme Court in the reference regarding Justice Nadon. This constitutional consideration merits special attention.

The Barreau defers to the expertise of Professor Sébastien Grammond, from the University of Ottawa's Civil Law Section. According to Mr. Grammond, Parliament has the necessary authority to enact legislation making bilingualism a condition for the appointment of Supreme Court justices, without the need for a constitutional amendment.

As for other federally appointed justices, it is our view that bilingual proficiency is most certainly an asset, even a prerequisite, depending on the region where the judge will serve. Bilingual proficiency should not, however, be a prerequisite for judges in all regions. The reality of a judge in Saguenay is completely different from that of a judge in Montreal.

Now I will turn to the obligation to draft legislation in both official languages.

As you are aware, section 133 of the Constitution Act, 1867, requires Quebec's National Assembly to pass legislation in both official languages. Nonetheless, over the years, members of the legislative assembly have adopted the practice of voting for legislation drafted solely in French. Therefore, amendments passed by parliamentary committees are routinely not immediately available in English.

Bills are initially drafted by lawyers or notaries who are legislative drafters and then translated by translators who do not necessarily have legal training. As you can imagine, that causes problems. In some cases, the errors are grammatical, but in other cases, the discrepancies between the two versions may even lead to a completely different interpretation of the law. Users of the justice system must then turn to the courts for a ruling on the interpretation of the law. As we all know, the courts are overburdened right now, so that is not the best option. Every effort must therefore be made to rectify the problem as quickly as possible.

In particular, the Bar of Montreal highlighted numerous errors in the new Code of Civil Procedure of Québec. It is actually not that new anymore, having come into force in Quebec more than a year ago. A tremendous amount of work is under way to fix the differences between the French and English versions as quickly as possible.

It took more than 18 years to produce equally sound versions of the civil code in both English and French. Unfortunately, that's a reality we have no choice but to accept.

What can the federal government do to help? It can provide financial support to help efforts to ensure a more effective translation process going forward, especially as regards vital pieces of legislation such as the Code of Civil Procedure. We would very much like to see joint drafting used, although not necessarily for every bill. That would not be possible in light of the resources available. Nevertheless, efforts should certainly be focused on improving the process. We are currently working with the ministry of justice to that end. The financial support I spoke of, however, would obviously lead to results more quickly.

I will now discuss the translation of decisions.

We drew the attention of the Standing Committee on Official Languages to the problem on November 22. Vice-President of the Barreau du Québec Antoine Aylwin and Casper Bloom, the director of the Association of English-Speaking Jurists of Quebec, discussed the matter with the committee. The problem regarding the translation of decisions is this. Section 9 of the Charter of the French Language gives any party to a judgment the right to have that judgment translated into French or English at no cost, no matter which official language it was rendered in. Clearly, the court has the discretion to choose the language of the judgment. A party may then request that the judgment in their own case be translated. The vast majority of Quebec judgments are rendered in French. Some parties do request the translation of their judgment, although not in most cases. That means that the lion's share of our jurisprudence is in French and therefore has much less of an impact than it could were it translated. Courts in other provinces cannot understand it, so it is simply not consulted.

One of the issues we reiterate in our brief is the fact that the Société québécoise d'information juridique, or SOQUIJ, the ministry of justice, and Quebec's various courts—the Court of Appeal in 2003 and the Superior Court and Court of Quebec in 2005—came to an agreement to translate into English 1,350 pages of jurisprudence of Canada-wide interest. That is equivalent to 450 pages per court. Obviously, numerous statutes apply equally throughout the country, regardless of Quebec's civil tradition. Thanks to funding from the Department of Justice, between 2010 and 2012, SOQUIJ was able to translate 1,350 additional pages of Court of Appeal judgments. These were judgments chosen by the court for their national appeal.

It is important to understand that the lack of translation of judgments has a major impact on the visibility and influence of decisions rendered by Quebec courts.

I will give you some statistics. For example, the number of judges serving on the Court of Appeal of Quebec is similar to the number of judges serving on the Court of Appeal for Ontario. It should be noted that Ontario has the Divisional Court. Nonetheless, in 2015, the Court of Appeal of Quebec rendered nearly two and a half times as many judgments as the Court of Appeal for Ontario. In that same year, Court of Appeal for Ontario cases were cited more than 1,500 times by Canadian jurisprudence, while Court of Appeal of Quebec cases were cites only about 300 times. That is directly related to the fact that, currently, the lack of translation of judgments rendered by Quebec courts unfortunately prevents us from really having an influence, as I was saying at the outset.

To improve access to the Canadian justice system and increase federal courts' ability to render decisions that are available in French and in English, Budget 2017 proposes to allocate $2 million over two years, starting in 2017-18, to the court administration services. I want to specify that this pertains to the Federal Court of Appeal, the Federal Court, the Court Martial Appeal Court of Canada and the Tax Court of Canada. Once again, the Superior Court of Quebec and the Court of Appeal of Quebec are unfortunately not covered by those measures.

In that respect, we are asking the Department of Justice Canada to collaborate with various Quebec stakeholders, including the Quebec justice department, courts and the SOQUIJ, and to provide financial assistance to develop a strategy that will help encourage the translation of judgments. I think that we all have an interest in that being done. Quebec has an interest in its jurisprudence being known, but it is also extremely positive for the rest of Canada to have access to the cases of Quebec courts.

Thank you.

12:20 p.m.

Liberal

The Chair Liberal Denis Paradis

Thank you very much, Ms. Prémont.

We will begin right away with Mrs. Boucher.

Mrs. Boucher, I believe that you have some brief comments.

12:20 p.m.

Conservative

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

Yes, Mr. Chair, I have two quick questions.

I want to thank the witnesses for being here.

I am from Quebec, and I am appalled that it has taken 18 years for us to have an adequate translation of the Civil Code.

As a province, does Quebec also have the power to require that a response to a particular file be provided in both official languages? That is the first thing I would like to know.

Moreover, you mentioned that a professor had said that bilingualism was constitutional and that the Constitution would not have to be amended for that. However, different things are being said elsewhere. I would like to hear your opinion on that; it is very important. Differing opinions within government are normal. I am in favour of Supreme Court judges being bilingual, but people would have to agree on the constitutionality of that obligation.

Could you please comment on that?

12:20 p.m.

Bâtonnière du Québec, Barreau du Québec

Claudia P. Prémont

I will answer the first question and let Ms. Champagne answer the second one.

As I understand your first question, you are wondering what the Government of Quebec is doing about translating statutes.

12:20 p.m.

Conservative

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

Yes.

12:25 p.m.

Bâtonnière du Québec, Barreau du Québec

Claudia P. Prémont

The Government of Quebec has had some pretty vigorous debates with the Barreau de Montréal. We may join the parade if, by some misfortune, we do not manage to agree, but we seem to be on the right track for the time being.

The Barreau de Montréal has clearly said that it would attack the process by arguing that it is unconstitutional. Discussions were held and, in late 2015, the Department of Justice made commitments. As those commitments have not been completely fulfilled, discussions have been renewed.

Recently, a committee made up of representatives of the Barreau du Québec, Barreau de Montréal and the Department of Justice met to discuss improving the process. We know very well that the constitutionality of a process will not be decided in a committee. However, we asked ourselves what practical and concrete solutions we could adopt in the short term to improve the process and potentially avoid this debate on the constitutionality of the process as we know it in Quebec.

So commitments have been made, including the commitment to hire anglophone civil lawyers to translate statutes. We are not talking about professional translators, but about anglophone civil lawyers. That could improve the outcome. That idea has been put forward. It has not been fully addressed, as it has to go through the Treasury Board, as well, but the Department of Justice has made a certain commitment.

A commitment was also made to hire jurilinguists on an ad hoc basis, in cases of important pieces of legislation. However, co-drafting is currently not planned owing to the province's resources.

12:25 p.m.

Liberal

The Chair Liberal Denis Paradis

Ms. Champagne, perhaps you could complete the answer.

12:25 p.m.

Sylvie Champagne Secretary of the Order and Director of the Legal Department, Barreau du Québec

Yes, I will provide some answers to the second question.

There are several schools of thought on the bilingualism issue—on whether Parliament can amend the Constitution Act or whether a constitutional amendment is required. The reference regarding the Supreme Court Act did not make it possible to make a clear decision in that case.

This is a fundamental question for accessibility to justice. In fact, the Supreme Court is the court of last resort for all Canadians, including those who speak French. If it is really impossible to decide the dispute between the two schools of thought, it would be important to bring this issue before the Supreme Court of Canada, so that it can set the record straight on the matter. In other words, it should determine whether bilingualism is part of what we call the other essential characteristics that are protected by the Constitution.

Once we obtain that answer, we could either amend the Supreme Court Act to include that obligation or begin discussions, once again, to amend the Constitution Act.

For the Barreau du Québec, it is essential for Supreme Court justices to be bilingual to ensure the public's trust and protection.

12:25 p.m.

Liberal

The Chair Liberal Denis Paradis

Mr. Généreux, you have time for a single question.

12:25 p.m.

Conservative

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

I knew that I would lose out. That's okay, as you have partially answered my question.

I understand that the Barreau has adopted Mr. Grammond's position, which supports the idea that judges should be bilingual. It is important to recognize that Mr. Grammond is not necessarily infallible. You have made a decision, which I assume is very informed.

I have an issue with functional bilingualism. Unfortunately, I missed the meeting where the committee heard from people who provide training. I was unfortunately unable to listen to them. However, I make a very clear distinction between someone who is perfectly bilingual and someone who meets the functional bilingualism requirement. Unless I am mistaken, you determine if someone is bilingual on a functional basis. Once again, the interpretation of what being functional in French or in English means can vary widely.

What is your position on that issue, which is very specific to functional bilingualism?

12:25 p.m.

Bâtonnière du Québec, Barreau du Québec

Claudia P. Prémont

I can answer that question.

In reality, the important thing is not to know what the Barreau's position is on functional bilingualism, but to determine how we will define it. We believe that judges must be bilingual. A bilingual judge is able to read, write and converse in English and in French. They must be able to communicate.

12:30 p.m.

Conservative

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

According to what I remember, Mr. Grammond said that it was not really important for the judge to be able to speak English or French, but I am not sure if I understood correctly. I feel that the position he expressed was problematic.

12:30 p.m.

Bâtonnière du Québec, Barreau du Québec

Claudia P. Prémont

We have clearly expressed that position. We have sent it in writing to the Federal Minister of Justice.

12:30 p.m.

Liberal

The Chair Liberal Denis Paradis

Thank you.

Ms. Lapointe, go ahead.

12:30 p.m.

Liberal

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

Thank you, Mr. Chair. The other side was using up a lot of time.

12:30 p.m.

Liberal

René Arseneault Liberal Madawaska—Restigouche, NB

Mr. Généreux always stretches the limits.

12:30 p.m.

Liberal

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

I would like to continue talking about bilingual judges.

You said that Supreme Court justices should be able to speak, write and converse in both languages. Do you think it would be acceptable for them to only be able to read and understand?

12:30 p.m.

Bâtonnière du Québec, Barreau du Québec

Claudia P. Prémont

When it comes to the Supreme Court, the Barreau's position is that it would not be acceptable. We see that in hearings. Some judges are able to read French and English, but when it's time for the judge to put questions to a francophone litigant, anglophone judges unfortunately say a lot less than francophone judges. That seems extremely important to us.

Perhaps Ms. Champagne would like to add something.

12:30 p.m.

Liberal

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

I would actually like to ask you how you would assess a judge's level of bilingualism.

12:30 p.m.

Secretary of the Order and Director of the Legal Department, Barreau du Québec

Sylvie Champagne

That is the experts' job. After all, there are hearings for judges' presentation.

12:30 p.m.

Liberal

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

So people would not define themselves as bilingual. It would have to be verified.

12:30 p.m.

Bâtonnière du Québec, Barreau du Québec

12:30 p.m.

Secretary of the Order and Director of the Legal Department, Barreau du Québec

Sylvie Champagne

We feel that it would in fact have to be verified.

12:30 p.m.

Liberal

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

Okay.