Official Languages Committee on April 6th, 2017

[The Chair, Liberal, Denis Paradis]

Good afternoon, everyone. We will now resume our session in public.

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

Joining us today are representatives from the Fédération des associations de juristes d'expression française de common law inc., Daniel Boivin, president, and Rénald Rémillard, director general. We will then hear from Mark Power and Marc-André Roy, appearing as individuals.

Gentlemen, welcome to the Standing Committee on Official Languages.

Each panel will have about 10 minutes for their presentation. We will then move to questions and comments from the members of the committee.

We will begin with Mr. Boivin.

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

Thank you very much, Mr. Chair.

Ladies and gentlemen, thank you for welcoming us to address this issue, which is very important to the FAJEF.

As mentioned before, I am the president of the Fédération des associations de juristes d'expression française de common law inc., which brings together seven associations of French-speaking lawyers.

As you may know, the FAJEF works very closely with its network of French-speaking lawyers' associations. We also work with national legal organizations, such as the Canadian Bar Association and people from the francophone community, particularly with the Fédération des communautés francophones et acadienne du Canada (FCFA). Actually, the FAJEF is a member of the FCFA. We are also one of the founding members of the Réseau national de formation en justice, whose representatives appeared before you a few weeks ago.

In a few minutes, I will be pleased to answer your questions about the themes suggested by your committee for your study on the full implementation of the Official Languages Act in the Canadian justice system. In response to your questions, I will be able to talk about a related topic, the issues of access to justice and the promotion and use of the French language in the legal system.

In terms of access to justice in French, the problems and solutions were well defined in the 2015 report of the Commissioner of Official Languages. This report is still the reference document for the work that the FAJEF wants to accomplish in this area. That is why I would like to address access to justice in both official languages.

I will start my presentation by suggesting a new and very specific measure that we would like the federal government to adopt. This measure is related to access to justice in French and to the promotion of the access.

Here is the request in question:

That the House of Commons Standing Committee on Official Languages recommend that the federal government adopt the best approach to extend language rights to divorce so that all Canadians can have the right to divorce in the official language of their choice.

In the FAJEF's opinion, that's the next step. The fact that people around the table are surprised to hear that it is not possible to obtain a divorce in French across the country explains in itself why this is important for the FAJEF.

Clearly, in the past 20 years or so, access to justice in French has improved in Canada. A number of reasons explain that progress, including the fact that some provinces and territories have taken concrete, significant measures to improve access to justice in French. Those initiatives deserve to be highlighted. It is also important to note the government's leadership role in setting out, in part XVII of the Criminal Code, that all the accused under the Criminal Code have the right to stand trial in the language of their choice in all provinces and territories.

In fact, in provinces such as British Columbia and Newfoundland and Labrador, access to justice and to the courts in French is largely limited to this right in criminal courts. The fact that the federal government has given all Canadians the right to stand trial in the language of their choice and allocated the resources needed to protect this right has resulted in the promotion and implementation of a wide range of measures and resources for promoting judicial bilingualism and access to justice in French across Canada. We feel that, without this commitment and, of course, without other key decisions of the courts, such as the decision in Beaulac, access to justice in French would not have made such significant strides in the past 20 years.

It makes sense to focus on access to justice in French in the context of criminal law. After all, it is an important point of contact between citizens and the legal system. There are other areas, particularly family law, which has serious consequences for many Canadians. Actually, family law proceedings often leave indelible marks on the lives of Canadians.

The Divorce Act is a federal act, like the Criminal Code, and yet the right to divorce in French does not exist in all the provinces of the country. It does not exist in British Columbia, in Nova Scotia or in Newfoundland and Labrador.

In 2017, we think it is at least incongruous and inconsistent with the objectives of the Official Languages Act and the requirements of subsection 41(1) of the act for French-speaking Canadians to not be able to obtain a divorce in French in all the provinces and territories in Canada, a divorce that is in fact granted under a federal act.

Let me point out that the success of the project to expand access to justice in French also depends largely on the ability to operate as a network. I appeared before you a few months ago to talk about the importance of the network of lawyers' associations to connect the legal community and the francophone community. Right now, the existing networks could help increase access to justice in French in all the areas of law, including criminal law, family law and divorce, as I mentioned.

In conclusion, we believe that explicitly recognizing the right to divorce in French in all the provinces and territories in Canada, as well as the ongoing support of the national networks of lawyers, such as the FAJEF network, will generate positive results for francophone litigants. In addition, we believe that it would be a good use of the existing financial resources, because a number of necessary measures to guarantee the right to divorce in French have already been put in place by the Criminal Code and the Contraventions Act in some respects.

Those are some of my comments. I'm sure that I will be able to answer other questions.

[The Chair, Liberal, Denis Paradis]

Thank you very much, Mr. Boivin.

I will now give the floor to Mr. Power.

[Mark Power, Lawyer, Specialist in language rights, As an Individual]

Thank you, Mr. Chair.

Good afternoon. Thank you for your invitation. I am pleased and honoured to be here to talk about another topic of interest.

You should have received a document. It's a memorandum in English and in French. The first page outlines the four points that my colleague Mr. Roy and I will be presenting in the 10 minutes that we have. Toward the end, you will see an excerpt from a report by the Commissioner of Official Languages of Canada.

I will make two comments on the subject at hand, namely the full implementation of the Official Languages Act in the Canadian justice system.

The first comment is on the publication of judgments. That information is on page 2 of the document sent to you. The page numbers are in the top righthand corner.

First, the Official Languages Act requires that some, but not all, Federal Court judgments be in English and in French. This requirement depends on the importance of the judgment and the language chosen by the litigants. Section 20 is actually not well implemented. There is a problem with the translation of federal judgments, which is attributable first to a lack of funding in the federal legal system, and second to the ambiguity of section 20, specifically paragraph 20(1)(a). There is no consensus in the legal community or in the judiciary on the rationale for translating a decision. There are some quite surprising, tangible examples of that. I will be able to talk about it more when answering questions.

There is a second problem with the translation of judgments. A number of provinces provide no translation of the judgments rendered by their courts of appeal, superior courts, the Court of Queen's Bench or the Supreme Court, meaning the highest court. This measure would be very useful for promoting access to justice in French. In terms of part VII of the Official Languages Act, the funding could be increased so that the provincial courts of appeal and highest courts could translate more judgments.

Quebec had a program with $200,000 to translate some judgments into English. It is not too difficult to imagine how that could be reproduced elsewhere, in Ontario or Manitoba for instance. However, it no longer exists. Reinstating such a program would be a concrete and important measure to implement part VII of the Official Languages Act.

I will now turn to the second point, which is on page 5 of the document.

That's the role of the Commissioner of Official Languages of Canada. Initially, in the 1970s and 1980s, members of Parliament and senators talked about what is now the Official Languages Act. They wanted the Commissioner of Official Languages to play a more significant role before the courts. The Commissioner of Official Languages intervenes often, but he is seldom the main party leading the case.

Let's take a very concrete example. You surely travel more than I do. I go to Ottawa once a week. When I arrive at the airport in Ottawa, it is very difficult to be served in French at the security checkpoint. Half of the time, it's in English. I complain. Although Air Canada makes an effort, the service in French is not great, which may be a polite understatement.

Why should it be my job to complain every time to the Commissioner of Official Languages, to appear before the Federal Court and to initiate proceedings against Air Canada or the Canada Border Services Agency? Few do so. Those who do are basically the diehard guardians of French. Take Thibodeau v. Air Canada, for example. Mr. Thibodeau, who is a private citizen and a public servant living in Vanier, sued Air Canada. He won, then lost on appeal. He then took his case to the Supreme Court of Canada. The Commissioner of Official Languages intervened in the matter. The roles were reversed; it should be the other way around. When the problem is institutional, an institution with funds and a sizeable budget should lead the case. It's not an issue that an individual should have to resolve. That was your predecessors' intent, but it has not materialized.

The Official Languages Act should be amended to specify more explicitly, more clearly and more concretely when the Commissioner of Official Languages should appear before the courts, not only in the background as an intervener, but in the foreground, as a lead party. The details are in the document.

In closing, I would like to make two very short comments.

First, in terms of access to justice in French, it is especially important to know where the people who speak French are. There is also the issue of access to justice in English, but for the time being, I am most interested in francophones outside Quebec. To find out where the francophones are, we would need a better census. So there's a connection here with your other study. The fact that Statistics Canada does not allow people to give multiple answers to the mother tongue question affects much more than education; it also has an impact on access to justice.

As a final comment, I would like to point out that there are a number of issues with the Official Languages Act. Overall, it is a good piece of legislation, but it is old. It has not been amended for several decades and it is time to rethink it. Some of the issues we have raised today should be resolved not only through small amendments here and there, but an overhaul of the act in its entirety. There are issues everywhere—the census, services, part VII, access to justice in French—and they could be resolved if the act in its entirety were reviewed, rather than patched up with band-aids.

Thank you.

[The Chair, Liberal, Denis Paradis]

We have not heard you talk about the Supreme Court.

[Mark Power]

My colleague Mr. Roy is just as qualified as me, if not more so, to talk about that issue.

[The Chair, Liberal, Denis Paradis]

We're listening, Mr. Roy.

[Marc-André Roy, Lawyer, As an Individual]

Thank you, Mr. Chair.

Ladies and gentlemen, I will add two points to complete our presentation.

First, in terms of bilingualism in the Supreme Court of Canada, we clearly cannot oppose virtue. All judges appointed to the Supreme Court in the future should be able to fulfill their functions in both official languages without relying on simultaneous interpretation or translation services. For this reason, we are very pleased with the federal government’s measure to appoint judges in the future who are “functionally bilingual”—this is the term used by the government.

That said, the measure is not entrenched in any law or in the Constitution. It would therefore be relatively easy for a subsequent government, or for the same government if circumstances change, to abandon this practice and to appoint judges who do not sufficiently understand one of the two official languages, in most cases French. So it is really important that this measure be entrenched in legislation or in the Constitution.

As Professor Grammond noted at his appearance on March 7, it is very possible that the imposition of a language requirement that judges of the Supreme Court be able to fulfill their functions in both official languages could be implemented unilaterally by the federal Parliament. However, there is some doubt as to whether the federal Parliament may legislate alone by virtue of its power over federal courts under section 101 of the Constitution Act, 1867. It is also possible that this affects one of the Supreme Court’s essential features, thereby requiring the assent of seven provinces representing, in the aggregate, 50% of the Canadian population.

Since there is doubt, we agree with Professor Grammond that it would be very useful for the federal government to refer the matter to the Supreme Court for the final say. That would be a way of resolving the impasse. This would help prevent a situation like the case of Justice Nadon a few years ago, when the debate had been unintentionally personalized. There was in fact a challenge based on the appointment of a particular individual. So we think the way to avoid that and move forward would be to refer the matter to the Supreme Court.

That’s the first point I wanted to raise.

The second and final point I am putting forward is about the other judicial appointments.

The federal government appoints the judges of the federal courts. To that end, there are bilingualism rights under the Official Languages Act. However, the act is silent on all other judicial appointments made by the federal government in the courts, that is, the superior courts and appellate courts of the provinces and territories.

In our view, it is important to put in place rules, probably by amending the Official Languages Act, to establish quotas or, at the very least, guidelines to ensure that, when the government appoints judges to those courts, there is a sufficient number of judges capable of fulfilling their functions in both official languages. As a result, francophones' rights of access to justice would be upheld across the country.

We have identified five reasons why this would be useful.

First, federal laws, and the laws of New Brunswick, Quebec, Ontario, Manitoba and the three territories are enacted in both official languages. Judges must therefore be able to understand them in order to give full effect to the French version of these laws.

Second, under the Criminal Code, in accordance with the Beaulac ruling, the accused has a right of equal access to designated courts in the official language chosen. If there are not enough judges to respond to the request, we have a problem.

Third, many provincial and territorial regimes guarantee litigants' language rights before superior and appellate courts. If the federal government does not appoint those judges, that will not work.

Fourth, this may address the bilingualism issue at the Supreme Court of Canada. Appointing more bilingual judges or ensuring that there are bilingual judges in lower courts, superior courts and appellate courts will generate a larger pool of potential candidates for the Supreme Court.

Fifth, these rules would allow the federal government to meet the commitment set out in part VII of the Official Languages Act.

I would like to mention one last point before I end my presentation. If truth be told, the problem is not new. Since at least 1995, the Office of the Commissioner of Official Languages has been raising concerns about access to justice in courts presided over by federal judges.

More recently, in 2013, the Commissioner of Official Languages of Canada published a joint report with the Commissioner of Official Languages for New Brunswick and the French Language Services Commissioner of Ontario, which raised a number of issues and provided recommendations. The report essentially proposed that the federal government and the provinces work together to determine the needs for judges capable of fulfilling their functions in both official languages. It also proposed that a process be implemented for the systematic assessment of language capabilities and of language training needs to ensure that those obligations are met. The report has not been implemented and, to my knowledge, has not received a response. It would be a good idea to take action. The first pages provide a summary of the report, and you will find the summary of the recommendations in the appendix to our document, that is, the last two pages. Points 2.1, 2.2 and 2.3 deal with the collaborative approach between the federal government and the provinces, and point 5.1 deals with establishing an assessment process.

That concludes my presentation. I am ready to answer your questions.

Thank you.

[The Chair, Liberal, Denis Paradis]

Thank you very much, Mr. Roy.

We will start with Mr. Généreux and Mrs. Boucher, who will be sharing their time. They have six minutes.

We’ll start with you, Mrs. Boucher.

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

I’ll just ask a quick question, because I have to leave.

I'd like to go back to what you said earlier, Mr. Power. Would you be in favour of the Commissioner of Official Languages having more powers? In my opinion, he has none.

[Mark Power]

Yes, of course, he should have more powers, but—

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

Could the Office of the Commissioner become a separate entity? In other words, do you believe that the commissioner can be independent, somewhat like an ombudsman, but with respect to official languages?

[Mark Power]

Mrs. Boucher, I think he is independent, and he's already an ombudsman.

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

However, he does not have much power.

[Mark Power]

He still has some powers. The essence of my remarks is that the commissioner, or the next commissioner, should make greater use of his current powers and that it would be desirable for the House of Commons and the Senate to better regulate this discretionary power, to first force him to do more.

Second, if he does more, he of course needs more money, which means that his budget must also be increased.

Mrs. Boucher, in addition to intervening in court, commissioners have several other ways of exercising their power. Some federal commissioners have the power to issue orders, for example, and others have the power to rule on cases or to force the use of arbitration. So it's not just a question of going to court, although it would be much better if they could do more. In my opinion, at the risk of repeating myself, it is unfortunate, if not ridiculous, that someone like Mr. Thibodeau should have to represent himself in court with the commissioner behind him when it should actually be the other way around.

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

It should be the other way around, yes.

[The Chair, Liberal, Denis Paradis]

Thank you, Mrs. Boucher.

Mr. Généreux, go ahead.

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

I would like to continue with the same topic, but I will come back to it later if I have time.

Mr. Boivin, earlier, Mr. Samson jokingly said that we could get married in both languages. However, since I'm not divorced, I did not know that we could not get divorced in both languages. Please note that I have not attempted to do so either.

You suggest that the committee recommend that the government promote greater access to justice in both official languages for those who wish to divorce. Clearly, we are not promoting divorce as such, but how do you see this? We're basically talking about access to justice, and you're telling us that all other areas of the justice system, including criminal law, are well covered, unlike divorce law. That's my understanding. Before you comment on that, have I understood correctly that this is not possible in New Brunswick either?

[Daniel Boivin]

No. It is possible in New Brunswick.

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

It is possible in our province.

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

Okay. I should have talked to Mr. Arseneault about it instead.

[Daniel Boivin]

Under part VII of the Official Languages Act as it applies to the promotion of access to justice, the federal government should take the necessary measures to ensure that citizens have access to justice in their own language in any area they need. However, in the case of divorce proceedings, this is not possible in some territories and provinces.

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

If people have access to justice in their language in other areas of activity, why is it that they do not also have access to this human right in the territories you named earlier? In fact, it is not a human right. I don't know what area of law it falls under. That said, how come they do not already have access to it?

[Daniel Boivin]

Civil litigation in provinces generally falls under provincial jurisdiction. Family law and the Divorce Act fall under federal jurisdiction. Several aspects of family law do not deal with divorce, but when it occurs, it falls under federal law.

The power of Parliament to legislate in its own areas could do for divorce what the federal Parliament has done for criminal law, meaning that when justices hear someone under that federal power, they will have to provide the service in English and in French.

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

So there are precedents in other areas that could be applied to this as well.