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.