Official Languages Committee on April 11th, 2017

[The Vice-Chair, Conservative, John Nater]

Let's continue.

Joining us this afternoon are two witnesses: Michel Doucet, full professor and director of the International Observatory on Language Rights at Université de Moncton; and Caroline Pellerin, director of Infojustice Manitoba.

You will each have 10 minutes to give your presentations.

Ms. Pellerin will start us off.

[Caroline Pellerin, Director, Infojustice Manitoba]

Ladies and gentlemen, my presentation will focus on access to justice in both official languages. I will speak to the practical side of access to justice and leave the theory to my colleague. Specifically, I will address access to justice in French in Manitoba.

I am the director of Infojustice Manitoba, a legal resource centre in Winnipeg. Infojustice Manitoba is the initiative of the Société franco-manitobaine, a not-for-profit organization that advocates for the Franco-Manitoban community, looking after its well-being and lobbying for full respect of its rights. Infojustice Manitoba was established to promote access to justice in French in Manitoba.

Infojustice Manitoba is funded through the access to justice in both official languages support fund. In 2013, the federal government incorporated two pillars into the fund, information and training. Infojustice Manitoba is funded through the information pillar because we work to raise awareness and promote information and training in relation to language rights and access to justice in Manitoba.

Legal resource centres are part of a national initiative to promote access to justice in both official languages. Canada has a number of other legal resource centres, in Nova Scotia, Ontario, Saskatchewan and Alberta. Depending on the province's linguistic landscape, some legal resource centres are designated as bilingual, while others provide service mainly in French. Since Manitoba has anglophone legal resource centres, Infojustice Manitoba provides service solely in French.

As you know, despite existing statutory and constitutional obligations, Manitoba, like other provinces and territories, still falls short when it comes to ensuring access to the courts and legal information in French. That is why Infojustice Manitoba strives to ensure that legal information available in English is equally accessible in French.

A significant proportion of Manitoba's population is aging, while another sizable segment is made up of newcomers to Canada. These individuals have special needs when it comes to French-language legal services. Manitoba's francophone population is made up of mainly two groups: seniors who are usually more comfortable speaking French and immigrants who are not fluent in English.

Legal aid Manitoba provides bilingual service, but most of the individuals who have a legal issue are not eligible. Consequently, they have to represent themselves in court and deal with their legal issue with little to no French-language information. In the absence of French-language service, people have to access services in English or rely on a third party to help them navigate the legal system in English.

It is important to note that access to justice is more than just being able to speak French in court; most of the time, it involves being able to obtain advice and information in the official language of your choice. Most cases do not go to court and are settled thanks to legal advice or information provided to litigants. It is therefore essential that individuals be able to obtain legal advice and information in French if they are to have access to justice in French.

Infojustice Manitoba provides French-language services not just to Franco-Manitobans, but also to those who choose to speak French. Infojustice Manitoba works with a number of English-language legal resource centres in the province, including the Legal Help Centre and the Community Legal Education Association. Through these collaborative efforts, Infojustice Manitoba is able to reach all Manitobans and truly promote the use of French in Manitoba's legal system.

Despite the creation of a French-language legal resource centre, a serious imbalance still exists in Manitoba, in terms of legal information available in French versus English. We are therefore calling on the federal government to make a commitment in the next official languages action plan to support projects that promote French-language legal information in the provinces and territories.

Thank you. I would be happy to answer any questions you have.

[The Vice-Chair, Conservative, John Nater]

Thank you very much.

Mr. Doucet, you have 10 minutes for your presentation. Please go ahead.

[Michel Doucet, Professor, Director, International Observatory on Language Rights, Université de Moncton, As an Individual]

Thank you, Mr. Chair.

I would like to thank the committee for having me today and giving me the opportunity to address bilingualism in Canada's justice system. I had prepared a presentation, but after listening to the previous witnesses, I decided to take an a cappella approach. In other words, I am going to proceed without accompaniment, straying from my presentation to address some of the issues raised by the group representing Quebec's jurists.

From the outset, I want to debunk the myth that bilingualism in the justice system exists on a nationwide level. It is true that section 18 of the Canadian Charter of Rights and Freedoms recognizes both language versions of Canadian statutes as equally authoritative. It is also true that every individual has the right to access justice in the official language of their choice when dealing with any court of Canada. Another truth is that section 133 of the Constitution Act, 1867, guarantees the same thing, as does section 23 of the Manitoba Act, 1870. All of these provisions recognize the right to a bilingual justice system, except that, at times, the Canadian legal system operates as though only one official language existed. That is the case in Quebec, as the committee heard earlier, as well as in a number of other provinces. In other words, bilingualism does not reside in our justice system, but, rather, a sort of linguistic duality does.

Many lawyers and judges interpret federal statutes passed in both official languages simply by reading only one language version, meaning, the English version in certain provinces. Many judges who interpret federal statutes and even provincial ones, in New Brunswick's case, can understand them in only one language. They never consult the other version, the version of the statute passed in French. Any jurist operating in the context of judicial bilingualism knows full well, however, that both versions of the same statute are very often not consistent and that, in order to understand a statute with two equally authoritative language versions, being able to read and compare the two is paramount.

That is something I often find troubling when analyzing how certain provisions were interpreted on the basis of only one language version. At some point, we run the risk of contributing to a legal movement where the law does not say the same thing and is not applied uniformly, depending on the language version referred to.

That is why I think it is important to appoint more bilingual judges, not just in Quebec, but also across the country.

Equally important is educating those in the legal community on judicial bilingualism, beginning with law faculties. That is necessary in order to ensure that participants in Canada's justice system truly have access to judicial bilingualism and the ability to express themselves in the official language of their choice without the risk of being put at a disadvantage because of that language choice.

Moreover, much of the discussion earlier focused on the translation of decisions. I wholeheartedly agree with what my colleagues said about the need to have more Canadian court decisions translated into the other official language. On that front, as well, however, the importance of two equally authoritative language versions comes into play: when a decision is translated, it is quite possible to wind up with a translated text that does not entirely match the original.

I just wrote a book on language rights in New Brunswick, and I included clear examples of court decisions where the English and French versions did not match. In order to realize that a discrepancy exists, however, having the skills to read and understand both language versions is essential.

When you're trying to achieve bilingualism across the justice system, it's worrisome for the interpretation of the law to rely on a language version of a decision that does not fully match the original decision.

It is imperative that we better educate lawyers, judges, and all those who work in Canada's court administration system on the reality of judicial bilingualism in Canada, beginning, as I said, with the country's faculties of law.

That brings me to my next point, the bilingual proficiency of justices on the Supreme Court of Canada.

I am extremely pleased with the steps the government is taking to ensure that judges appointed to the Supreme Court going forward are functionally bilingual. Like my fellow witnesses who spoke earlier, I would go further, however. I think it's essential to set out the requirement in legislation.

On many occasions, I, myself, have argued cases in French before Supreme Court justices who were not able to follow the discussion. When a unilingual English-speaking judge listens to a submission in French, when the bench and the lawyer engage in a quick exchange, when French technical jargon is used, and when the parties speak very quickly—as I'm probably doing now—I can appreciate how difficult it becomes for interpreters to follow the discussion.

The situation is not the same in Canada's Parliament. There, parliamentarians have access to interpreters, and even though they may leave out or misinterpret something an MP or minister said, the impact is probably not as serious as it is in court, where every single word matters.

I had trouble sleeping one night, so I turned on the TV and started watching CPAC, which was airing legal proceedings. As I listened to the simultaneous interpretation of counsel's submission, I thought to myself that the lawyer was in trouble, because the interpreter frequently used the expression “cannot follow”. In other words, the interpreter wasn't able to follow the proceedings or was not necessarily translating what the lawyer was saying. I realized that I was that lawyer. When things like that happen, you ask yourself some serious questions and wonder whether you are doing your client a disservice by arguing their case in their language before a judge who cannot understand the language being used without the assistance of an interpreter.

For that reason, I strongly support the idea of amending the Official Languages Act by removing the provision in section 16 that exempts Supreme Court justices from the language proficiency requirement. The Official Languages Act requires that all federal court judges be able to understand the proceedings in the official language chosen by the parties without the assistance of an interpreter. The same requirement applies to New Brunswick court judges. I believe the exception for Supreme Court justices should be eliminated.

What's more, a provision should be added to the Supreme Court Act making bilingual proficiency a standard requirement for judges, given that they will have to interpret statutes with two equally authoritative language versions. I don't think there is any risk of such a provision posing a constitutional problem. That is completely different from the situation in the Judge Nadon case, which dealt with the makeup of the bench. For that matter, I would be willing to answer any questions you have on the subject. In this situation, we are not dealing with the composition of the Supreme Court but, rather, with the language proficiency of its judges.

I agree with what my colleague Sébastien Grammond told the committee back in March, at a meeting I was also supposed to appear at. He indicated that it would be advisable for the federal government to refer the issue to the Supreme Court of Canada to dispel any doubts.

I will conclude my remarks with a few words about French-speaking jurist associations. My fellow witness talked about legal information, and earlier, Mr. Bergman was discussing the funding of such associations. New Brunswick's association of French-speaking jurists will soon submit, to the committee, a brief explaining the funding problems these organizations currently face. The association filed a complaint, under part VII of the Official Languages Act, with the Commissioner of Official Languages, who sided with the association. The commissioner's office asked the Department of Justice to meet with the association's representatives to discuss its core funding, a request the department has thus far ignored.

I think I will stop there and leave it to committee members to ask any questions they have about what I have said.

Thank you.

[The Vice-Chair, Conservative, John Nater]

Thank you, Mr. Doucet and Ms. Pellerin.

We will begin our first round of questions with Mr. Généreux.

You have six minutes. Please go ahead.

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

Thank you, Mr. Chair.

I thank the witnesses for being here today.

Mr. Doucet, your position is similar to that of Mr. Grammond. We are not against virtue, and we all think that judges should be bilingual when they are appointed. What I hear today leads me to think that the bill should have extended the bilingualism requirement to all judges without exception.

[Michel Doucet]

That would be ideal.

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

Indeed.

According to the government, to be considered a bilingual judge, you have to be functionally bilingual. According to the government's definition, a functionally bilingual judge can understand arguments in the other language, but does not need to speak it.

Personally I think that there is a fundamental difference between someone who is functionally bilingual, and someone who is perfectly bilingual.

Is it that much harder to find perfectly bilingual judges in the anglophone provinces of Canada than to find functionally bilingual judges, that is to say judges who can speak English and French in a functional way? Do you see a dichotomy there?

You just explained that there is an issue because judgments are not exactly the same in English and French, nor are they always translated, understood or interpreted in the same way. We must also take into consideration the oral interventions that take place at the outset between the parties, the lawyers and the judge.

I have trouble understanding why we want the law to require that judges be functionally bilingual and not perfectly bilingual.

Do you also see a problem there?

[Michel Doucet]

Absolutely; I see a problem.

I also think that one of the issues currently is that a judge's linguistic competence is not really evaluated before his nomination. It is, rather, a self-assessment. I could talk to you about a situation that occurred recently in New Brunswick, but I won't go any further.

I do believe that a justice of the Supreme Court of Canada should be able to understand the exchanges, participate in discussions with the lawyers, and read the documents in both languages. So his or her linguistic capacities need to be evaluated. It is not enough to be conversationally bilingual. The judge must be sufficiently bilingual to understand a legal debate without the help of translation or simultaneous interpretation. I think that that level of bilingualism needs to be evaluated.

Some have said that it is difficult to find judges that satisfy that requirement in the different provinces. However, I have argued cases in several Canadian provinces, and I was often surprised to realize that in provinces where people believed there were none, there were judges who had that capacity. Take for instance the recently appointed Judge Rowe, who is from Newfoundland and Labrador. At a certain point, several people told us that it was impossible to find a judge or a lawyer who was perfectly bilingual in that province. And yet we found one, Judge Rowe.

And so it is possible, but training has to start very early. That is why I referred to law faculties.

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

I absolutely want to discuss the accessibility of judicial positions. Bilingual lawyers could potentially have access to the bench.

I don't know if you are aware of the new judge selection process, but in the new form it says that candidates must have argued cases before this or that court, for example before the Superior Court in the case of Quebec.

Of course Canada is a vast country that comprises several regions. This week, the president of the Bar of Bas-Saint-Laurent-Gaspésie-Îles-de-la-Madeleine, Mr. Clément Massé, wrote to me as well as to several other members from that region about the process used to select judges. He said that the lawyers who practice in the regions plead in various types of courts, but not necessarily in superior courts or courts of higher instance. Consequently, they will not necessarily meet the requirements in the new process.

I don't know if you are aware of that situation. It must be the same thing in New Brunswick and throughout the country. When lawyers practise in the regions—and I don't want to call them regionalists or regional—they have fewer opportunities to plead before higher courts.

Have you heard about this?

[Michel Doucet]

This not something I have seen in New Brunswick. Candidates must have at least 10 years of experience as members of the Bar. Most of the lawyers who have that kind of experience have pleaded at least once or twice before superior courts. We are talking here about trial courts.

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

We know that everything is wonderful in New Brunswick. René Arseneault lets us know often.

[Michel Doucet]

Oh, no!

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

When it comes to the justice system, everything is absolutely perfect in New Brunswick. I see that you do not entirely agree. We are starting to get to know Mr. Arseneault. He always makes things sound better than they are, and does more than the client requires.

That said, I am going to put that aside for the moment, because I absolutely want to go back to the funding.

Ms. Pellerin, you spoke about funding to help organizations provide information and training. You also spoke about that, Mr. Doucet, as did Mr. Bergman before you. Do you have some idea of how much money it takes to do that in Canada, or by province? I expect that it has to be done in a balanced and fair way.

[Caroline Pellerin]

I'll limit my comments to Manitoba. I don't necessarily know what funding the other provinces, such as Ontario, receive.

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

How much do you receive from Justice Canada?

[Caroline Pellerin]

We received approximately $300,000 to set up the legal information centre.

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

And is that amount renewed annually?

[Caroline Pellerin]

No, that was for the period from 2013 to 2018. We began our activities somewhat later, so that amount covers the period from 2016 to 2018.

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

So you have $300,000 at your disposal for a period of approximately three years. That amounts to about $100,000 a year.

[Caroline Pellerin]

Correct.

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

Do you spend a lot of time providing information?

Do you receive funding from elsewhere, such as from the province?

[Caroline Pellerin]

For the time being, we only receive federal funding. Of course, we hope that the Manitoba Law Foundation will grant us a small sum. For the moment, those are the two bodies that can provide funding to us.

[The Vice-Chair, Conservative, John Nater]

Thank you very much.

Mr. Arseneault now has the floor.

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

Thank you, Mr. Chair.

Ms. Pellerin, Mr. Doucet, thank you for being here, for sharing your knowledge, and for providing us with more information about the challenges the justice system faces.

I would like to take advantage of this public forum to congratulate you. Mr. Bergman was telling us earlier about his volunteer work. What I want to say is addressed to all of you as well. All of the pro bono work you do for the good of society and your respective communities, without expecting anything in return, is worth more than gold or diamonds. Thank you very much.

I have a question for Mr. Doucet.

Mr. Bergman, who testified this morning, told us about a new organization in Quebec, the Association of English-speaking Jurists of Quebec. Acadians in New Brunswick have a similar organization, the Association des juristes d'expression française du Nouveau-Brunswick, the AJEFNB. Mr. Doucet, I think you are the founder, or one of the founders. If I remember correctly, the association has existed for more than 25 years.

We were talking about funding. The Manitoba association receives funding to provide information, but for the Association des juristes d'expression française, what are the challenges in Canada, generally speaking?