Official Languages Committee on April 6th, 2017

[Daniel Boivin]

Criminal law is the best example.

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

In your opinion, we should address this.

Mr. Power, you are on a roll today; you want us to change the Official Languages Act entirely. In fact, you would like the government to tackle the entire act to completely overhaul it, or to at least make major adjustments to it.

No government has done that in the past 20 or 25 years. I do not know how many years it has been since it was done.

You say that the act is not necessarily obsolete, but it needs to be updated. Which elements of the current act seem most problematic to you?

[Mark Power]

I have two comments, Mr. Généreux.

It is unusual for the federal Parliament not to touch an important piece of legislation for more than 30 years. In taxation, there are annual changes.

Federal legislation on official languages is the result of the work of Lucien Bouchard, when he was secretary of state in Mr. Mulroney’s government, before he founded the Bloc Québécois. He did a good job.

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

Is that the last time the act was updated?

[Mark Power]

That was the last time. It's been a long time, Mr. Généreux. It is important to remember that there was no Internet at the time. However, it revolutionized services.

At the time, Mr. Bouchard and Mr. Mulroney did a good job. Times have changed now. At the very least, it would be worthwhile for some people to review the issue as a whole.

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

To make us understand that those changes were necessary, can you tell us what were the most significant changes that Mr. Bouchard made to the act at that time? That could remind us of the context. If you want, you can make a comparison with the changes we should make today.

[Mark Power]

I have never thought of the issue in that way. That's an excellent question.

Before that, the act was passed in the 1960s, during Pierre Trudeau’s time. The act did not grant any real power to the Commissioner of Official Languages. I agree with Mrs. Boucher. So there was no real right to federal services in French. In addition, the territorial application of the act was very limited.

Changes were then made. The 1960s version and the 1988 version are like night and day. That’s because society has changed and Canada has changed. The Canadian Charter of Rights and Freedoms, for example, was passed in 1982.

Today's Canada is no longer the same country it was in 1988. It is time to update this law.

Let me go back to your initial question. You asked what could be done in terms of access to justice. Language tests could be established for Supreme Court of Canada justices. As my colleague Mr. Roy suggested, this could also be done for the higher Court of Appeal.

In closing, I would like to say that another way of looking at this would be to set aside partisan considerations. For 30 years, all parties, whether the NDP, the Conservative Party or the Liberal Party, have introduced all kinds of small bills. Take Mr. Dion's bill on Air Canada services, or the Supreme Court bills introduced by the NDP or the Liberal Party. There have been all sorts of small bills that, in their own way, have all tried to change things that needed to change.

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

It was compensating, in a way.

[The Chair, Liberal, Denis Paradis]

Thank you, Mr. Généreux. I now have to give the floor to Mr. Lefebvre.

[Paul Lefebvre, Liberal, Sudbury, ON]

Thank you, Mr. Chair.

My thanks to the witnesses. Your comments and suggestions are clear. It is nice to hear concrete ideas.

I would like to come back to what Mr. Généreux said about promoting access to justice in French in minority communities.

What is happening in that area right now? What is the federal Department of Justice doing to promote access to justice in French?

[Daniel Boivin]

Working groups were formed in the wake of the 2015 report by the Commissioner of Official Languages. In that respect, it is clear that work is being done. This morning, Mr. Rémillard and I met with people from the Department of Justice so that they could update us on what is happening. There’s some progress.

[Paul Lefebvre, Liberal, Sudbury, ON]

So committees are meeting, fine, but what more would you like?

[Daniel Boivin]

There is a common factor to the difficulties we face: a lot of people are involved in the field of justice. We have chief justices on the one hand and provinces on the other. Although appointments are a federal responsibility, the administration of justice is in provincial jurisdiction. So there are a lot of bridges to build.

Some bridges were built a few years ago when there were problems in connection with the Contraventions Act. Committees were set up. Those bridges were imposed by the court when a tribunal indicated that the feds should be more proactive in terms of the Contraventions Act. Those bridges are still being built and agreements with those providing the services are still being reached. But people at municipal and provincial level, who are not necessarily under federal control, are often the actual primary interface with the public. That is a difficulty.

Another reason why the situation is difficult is that, as a community, we lack a solid network capable of assisting the Department of Justice. To move things forward, the department needs information on what is happening in the trenches. That need can be met by lawyers and their communities. In Ontario, it is not a major problem. The Association des juristes d’expression française de l’Ontario (AJEFO) operates in the province and is a very solid, active and reasonable organization. The fact remains that such is not the case everywhere.

[Paul Lefebvre, Liberal, Sudbury, ON]

In this study, we are asking ourselves how we could encourage the federal government to support access to justice in French. Perhaps you could suggest other concrete ways of doing that.

We often hear that there are delays in terms of access to justice in French. In Ontario, if people want a case to be heard in French, they have to expect delays. There are often not enough judges or prothonotaries, for example. A number of positions in the legal system cannot be filled in a reasonable time. But everything has to be in place at the same time if a case is to be heard in French.

Does anyone keep track of the delays? Here in our world, we are missing a lot of data. We are told that we have to invest more money, but how can we be assured that the services are really going to improve?

[Daniel Boivin]

That is a very good question. In fact, one of the problems is that chief justices want to know exactly how many requests there are. But quantitative analysis has to consider so many factors that, statistically, the data have little validity. Actually, you can make those figures say anything you like.

That is why the Commissioner of Official Languages went to a qualitative analysis, rather than a quantitative one. He conducted interviews with people like myself, people working in the trenches, that is, to determine the nature of the obstacles, not to try and quantify the consequences of those obstacles.

[Paul Lefebvre, Liberal, Sudbury, ON]

Thank you.

Mr. Power, Mr. Roy, do you have an answer to my question?

[Marc-André Roy]

I quite agree with everything that Mr. Boivin said, but I would like to add that it is difficult to get a handle on the problem quantitatively. First, we need more judges. As a result, we cannot count all the people who became discouraged by our lack of judges and who never asked for for justice services in French.

That is why more appointments are needed. So the act will have to be amended or restructured and the report from the Commissioner of Official Languages will have to be implemented. We also have to make sure that services in French, or in the minority language, are actively offered by court administrations, not just by judges. So we have to work with provincial governments to make sure that that is done.

[Paul Lefebvre, Liberal, Sudbury, ON]

In your brief, you state that things are not perfect at the federal level in terms of judgments being published, and even that a number of them are not translated.

I have two questions.

Do you know who the translators working for the Department of Justice are? Does the translation bureau do those translations?

Then, do we have an idea of the budget for translating those judgments?

This week, we had representatives from the Quebec Bar here with us. The President told us about the challenges in Quebec. Previously, they received the $200,000 you mentioned, but that was eliminated, which greatly reduced the ability to translate the judgments.

Can you give us more details about what happens at federal level?

[Mark Power]

I am sorry, Mr. Lefebvre, I do not have specific answers to those questions.

However, I repeat that what we need is for the service to be actively offered, which means appointing more judges. If more bilingual judges are appointed, people will come forward and ask for services in their own language.

It is the same with the judgments. Let me give you an example. In 2008, when Mr. Harper prorogued Parliament in order to trigger an election, it led to a 2010 Federal Court judgment called Duff Conacher, et al. v. Prime Minister of Canada, et al. At the time, the Canadians most interested in the matter, according to the polls, were those in Quebec. In Quebec, it was being followed more than anywhere else. But the Federal Court judgment was published in English only, with a note that the French version would follow. That makes no sense, Mr. Lefebvre.

[Paul Lefebvre, Liberal, Sudbury, ON]

I don’t understand. All Federal Court of Appeal judgments are published in both languages, are they not?

[Mark Power]

No, Mr. Lefebvre, I am sorry, but that is not so. Look at page 2 of our document. It’s in 10-point type, you need good eyesight to read it, but we included the wording of section 20 of the Official Languages Act, Mr. Bouchard’s and Mr. Mulroney’s act, which specifies the circumstances under which translation is done. It is not done all the time.

[The Chair, Liberal, Denis Paradis]

Thank you very much, Mr. Lefebvre.

We now move to François Choquette.

[François Choquette, NDP, Drummond, QC]

Thank you, Mr. Chair.

My thanks to all the witnesses for shedding some very important light on the matter.

Still, I wanted to point out that you have been working on bilingualism for Supreme Court justices for a long time, Mr. Power, Mr. Roy. You have written some excellent documents, including one in French, published in Erudit, whose title has been translated as “On the possibility of being understood directly, orally and in writing, in Canadian courts without the assistance of interpretation or translation services”. There is another document in English. Those documents clearly highlight the need to appoint bilingual judges to the Supreme Court first and foremost. Moreover, you systematically dismantle the arguments made by some who maintain that there are no bilingual judges in British Columbia or Newfoundland and Labrador. My congratulations for that.

So you welcome the Liberal government's new policy on appointing judges to the Supreme Court, but you are of the opinion that it is not enough. Is that what you are saying, Mr. Roy?

[Marc-André Roy]

We welcome the measure because it assures us that, in a foreseeable future, the next judges will be appointed under standards of bilingualism. We feel that the government is acting in good faith, that it will move forward, and that it will adopt the practice in the foreseeable future. However, it remains wholly possible that a subsequent government may quite simply abandon the practice.

That is why we are recommending this, for now. First of all, we must make sure that we understand the formula that applies. In other words, we have to determine whether Parliament can act alone or whether it must proceed using the amending formula in the Constitution. In that way, with that change, we will make sure that the judges are required to be bilingual.

[François Choquette, NDP, Drummond, QC]

Is it your recommendation that the current government, in this mandate, introduce a bill to amend the Official Languages Act, or should it refer the matter to the Supreme Court for it to determine whether Parliament can act without having to amend the Constitution?