Official Languages Committee on April 6th, 2017

[Marc-André Roy]

We recommend a reference. The first step is to make sure that the process is being done properly, to avoid a disaster like the Justice Nadon affair. One specific example was used to contest and overturn an appointment. We want to avoid a similar problem and all the implications of politics and respect for the courts that it caused.

[François Choquette, NDP, Drummond, QC]

I understand, and the sooner the better.

[Marc-André Roy]

Yes.

[The Chair, Liberal, Denis Paradis]

Mr. Choquette, would you let me chime in, just for a moment?

[François Choquette, NDP, Drummond, QC]

By all means, Mr. Chair.

[The Chair, Liberal, Denis Paradis]

Gentlemen, you are constitutional lawyers and you are recommending a reference. If the Official Languages Act were to be amended, would it be constitutional or not? As constitutional experts, what is your opinion?

[Marc-André Roy]

I read Professor Grammond's arguments in March with interest. At first sight, I share his opinion. There is a very good chance that the federal Parliament can act alone. That said, everything revolves around what is considered an essential characteristic of the Supreme Court. Unfortunately, it is very hard to predict what the courts will decide. Having an opinion as a constitutional expert is one thing; it is quite another thing to predict which way the Supreme Court will lean. There seem to be very good arguments on both sides of the debate. That is why we have to proceed carefully in this matter.

[The Chair, Liberal, Denis Paradis]

Thank you, Mr. Roy.

Mr. Choquette, you may continue.

[François Choquette, NDP, Drummond, QC]

Thank you, Mr. Chair.

My next question deals with the famous report by the official languages commissioners, dealing with access to justice in both official languages. I say “commissioners” because it was done in partnership with other commissioners.

One of the recommendations in that report was to set up an evaluation process for appointing higher court judges that would be the same everywhere.

The current government has changed the formula a little. In order to assess the level of bilingualism, they propose a more detailed self-assessment using a questionnaire. Is that enough or should they be going further?

What do you think, gentlemen?

[Daniel Boivin]

The FAJEF's view is that the bilingualism self-assessment is a step in the right direction, but it is not enough. There must be an evaluation. In the system, people declare themselves to be bilingual too often. They are certainly bilingual enough to be able to communicate in both official languages in a social setting. But it is another thing entirely to be able to hear witness and fully understand evidence, because that requires very specific language knowledge.

These days, the Supreme Court hears the most complex and technical of cases, ones that have not been able to be resolved elsewhere. So the judges are called upon to resolve extremely complex matters. In that context, litigants must constantly be wondering whether the judge understands them when they use the technical and precise terminology of a complicated principle. It's a question I often ask myself in my area of practice. That is why it is essential to be able to measure the true ability of already sitting judges who call themselves bilingual, as well as the ability of those who are seeking judges' positions that are designated bilingual.

[Mark Power]

It is not only perfectly normal, it is responsible to require certification to confirm that those who think or say that they can do something actually can do it. As an example, I am not allowed to drive an 18-wheeler on the highway without a license, and that is a good thing. I have to prove to the state that I am capable of driving at 100 km per hour. I have no business being a member of the Royal 22nd Regiment if I cannot express myself well enough in French for my shell to go where my fellow soldiers tell me it is supposed to go. Likewise, I should not be a federal public servant providing front-line services if I do not have an exemption or the highest classification for service.

Self-assessment does not work. I go much further on this than the FAJEF, whose position is too moderate and probably too generous towards the government. Here's why.

I do not want to be a judge, but if I did, I would fill in the form that every judge has to complete. Here is one of the questions on language:

Without further training, are you able to understand oral submissions in court in:

English:

French:

It makes no sense that candidates for the Court of Queen's Bench in Alberta or the Supreme Court of Nova Scotia do a language self-assessment. I really want Justices Rowe, Rothstein et al to meet a parliamentary committee, but it is too late. We are not going to test anyone's language ability on CPAC once a candidate has been officially announced. We do it with public servants and with members of the Royal 22nd Regiment, and we should also do it with judges, whether at the Supreme Court of Canada or elsewhere.

[The Chair, Liberal, Denis Paradis]

Thank you, Mr. Choquette.

Over to you, Mr. Arseneault.

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

I am going to continue along these lines. I do not want to go round in circles because Mr. Choquette asked very good questions. But I would like to make a comment. When I go to buy a stamp, the clerk at the post office counter must be bilingual. But, in 2017, the person defending my rights does not need to be able to understand me in order to be able to stand up for me as I claim my language rights. That is what you are explaining to us today.

You suggested referring the matter to the Supreme Court. Is there a logical way in the short term, without being too aggressive and causing too much collateral damage, to make sure that the government, this government and governments to come after each new election, are required to appoint bilingual judges to upper courts? We have to have something more than the government's good intentions. Is it possible to pass legislation quickly and easily? Could we make some kind of amendment to an act that already exists?

[Marc-André Roy]

There is one thing that can be done: we could have legislation on language evaluations. We may not be able to amend the Supreme Court Act, as Mr. Choquette's bill proposes, for example, to require the appointment of bilingual judges. But we could require an evaluation for each candidate whose name is put forward for appointment by the government. In that way, we are assured that the government will at least make decisions based on facts. It does not go as far as we would like, but at least it goes part of the way.

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

To make sure this is on the record, could you tell us how this can be done?

[Marc-André Roy]

There are many ways to accomplish this. An amendment to the Official Languages Act could be proposed.

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

So we could take action through the Official Languages Act.

[Marc-André Roy]

Yes.

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

Okay, perfect. Thank you.

I'm sorry for moving along quickly, but I have a lot of questions. There are so many exciting topics involving language rights.

Mr. Boivin, please allow me to address something a little more technical. I am from the generation of lawyers that lies somewhere between flint and the Chinese abacus. Quicklaw software was released in my last year in law. It is a way of consulting case law electronically. This appeared when the computers did not work well, and their motors ran for a long time.

I remember that it was a problem in New Brunswick. As much as possible, we had the documents translated. Before that, we waited for the book of case law, which was bilingual in New Brunswick. You probably remember the old black binder that arrived. Every six months, we waited to update one of these books.

Then came Quicklaw, specifically. There are others, now. However, these people who provided case law through the Internet or websites were not subject to the Official Languages Act. We often saw decisions that were presented to us on these sites in only one language.

Earlier, you were talking about the emergence of the Internet from an official languages perspective. It's a problem, even in a province that translates its decisions and makes them simultaneously in both languages, as is the case in the New Brunswick Court of Appeal, for instance.

How can we ensure that the people who produce case law on the Internet do so in both languages?

[Daniel Boivin]

The whole issue of tools needed to practise law that come from the commercial world is a big problem for francophones in minority situations, because the commercial market is not big enough to justify the expense. The problem is partly resolved by the gradual replacement of commercial databases with non-profit databases.

The database that is being used more and more now is being developed by CanLII. All of the provincial bar associations are participating in the process to encourage information exchange rather than make profits. Of course, nothing is free, but at least agreements are made with non-profit organizations that are not only interested in trying to make money with the legal community.

We could talk at length about certain software programs that help in family law or that offer models of wills and estates, for example, but that are not available at all outside Quebec where there is a francophone market.

It is important to support these projects through funding to community organizations. At the moment, for example, there is a project in Ontario that helps the AJEFO and the Centre for Legal Translation and Documentation to select important cases from the Ontario Court of Appeal for dissemination in both languages. Projects like this can at least begin to build case law.

Of course, as with any field, the more terminology is constructed, the easier it is to produce decisions in both languages, since legal experts and jurilinguists do not need to reinvent the wheel.

Of course, having an obligation under legislation would be ideal. In the meantime, we will be able to make projects by giving funding to existing community organizations and networks.

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

Thank you very much.

I'm going to change the subject.

Mr. Power or Mr. Roy, I understand that the Official Languages Act of New Brunswick is automatically revised every 10 years. I think it was a good idea to put that provision in the legislation. So, every 10 years, the government in place, regardless of the party in power, has a duty to revise and update the act based on the development of society.

[Mark Power]

That's right. About 15 years ago, the Court of Appeal of New Brunswick ruled that some sections of the Official Languages Act of New Brunswick were invalid. At the time, Mr. Lord was the province's premier. So he had one year to rewrite the Official Languages Act of New Brunswick, which he did.

Before that review, the act hadn't been amended since Mr. Robichaud's era. It was outdated. One of the things that Mr. Lord did was to include a section that stated that the Legislative Assembly of New Brunswick had to review its act every 10 years.

The same is true in the Northwest Territories, in Nunavut and across Canada. In fact, a similar process is set out for areas other than language. So it is normal for a parliamentary assembly to regularly review important texts. It is done for official languages elsewhere, at other levels of government. It is done in taxation. It should also be done for Canada's Official Languages Act.

[The Chair, Liberal, Denis Paradis]

Thank you very much.

We are going to give the floor to Mr. Généreux for a final intervention from him.

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

Thank you, Mr. Chair.

My question is more for Mr. Power or Mr. Roy. I don't know whether Mr. Boivin will be able to answer as well.

I received a letter yesterday from the president of the Bas-Saint-Laurent-Gaspésie-Îles-de-la-Madeleine bar association, Clément Massé. He shared two of his observations in his letter. First, he talks about the appointment of judges, which he thinks moves much too slowly. His second observation concerns the new federal government-designed form to put forward a Supreme Court nominee. This form represents the new way of doing things for the current federal government.

We are talking here about access to justice in both English and French across Canada. However, in Quebec, lawyers working in rural or regional settings are much less likely to be involved in litigating or defending cases before appellate courts, superior courts or federal courts of first instance, such as the Federal Court or the Tax Court of Canada. The form in question clearly indicates that nominees must have relevant experience before these bodies to eventually be appointed judges in superior courts. In fact, Mr. Massé considers that this is potentially discriminatory.

What is your opinion on this? Have you had an opportunity to consult the form?

[Mark Power]

Yes, I have it in front of me. I'm not sure how to answer your question. I'll try, but perhaps Mr. Boivin or others would like to try to round out the answer.