Official Languages Committee on April 11th, 2017

[Stephen Thompson]

In our literature review, what our research was looking at was not just about courts and lawyers. It is a problem when we talk about access to justice, because the first thing people do is invite lawyers to talk about it.

Of course, access to justice means alleviating poverty. It means giving people access to non-traditional justice mechanisms and conflict resolution mechanisms. It means remediation. It means taking a look at some of the barriers to people accessing those mechanisms, such as gender, and in our case, linguistic barriers. There are gender barriers, age barriers, and means barriers, so it's a very wide question.

Again we get back to the fact that because there is no common definition, we can talk about the parts that we think are in it, but I could keep talking all day about factors, because there are no bounds to the definition.

[Julie Dabrusin, Liberal, Toronto—Danforth, ON]

Okay.

Monsieur Bergman.

[Michael Bergman]

I would like to take a stab at this. First, I'd like to remark that you and I have something in common. I am from Montreal. I live in Montreal and I practise in Montreal, but I'm also a member of the Law Society of Upper Canada and have pleaded in Toronto, Ottawa, Kingston, Brampton, and other parts of Ontario in every level of court, as well as every level of court in Quebec.

Access to justice has become a cliché. Let's back up a bit and address part of what the cliché tries to encapsulate.

Not so long ago, all the laws of Canada, of the federal Government of Canada, fit in my bookcase on one shelf. Now I would need a bookcase that reaches the ceiling—

[Julie Dabrusin, Liberal, Toronto—Danforth, ON]

Or a good computer.

[Michael Bergman]

—or a computer. That's just to give you an example in paper.

The rules by which our society is organized have become extraordinarily complicated and manifold, so that every individual in this country, at some point during their daily life, in some way encounters justice. They may not articulate it that way, but they interface with the rest of the world based on a series of elaborate rules that didn't exist in a previous era.

In fact, in a previous era, you could argue that the average person had very little to do with justice. They lived their lives in slow motion. Today, it's not the same. Access to justice recognizes that every Canadian, every day, in some way is touching the justice system. That is not just a formal system, it is any informal group of rules.

[Julie Dabrusin, Liberal, Toronto—Danforth, ON]

I'm going to jump in, because I'm quickly running out of time and I want to get in one more question for you.

I would think that as a lawyer you would be well positioned to answer this. There is a private member's bill, Bill C-203, that is being discussed as well. What is your thought about the constitutionality of that proposed bill in light of the Nadon reference?

[Michael Bergman]

There are many difficult problems that stem from the Nadon decision itself, and they are conceptual problems.

With the greatest of respect, I do not personally agree with the Nadon decision. Frankly, it is a decision that had a certain moment in time, but it does not look at the long-term policies necessary to build on the constitutional requirements of what we need for a sane and proper Supreme Court or other tribunal.

I think that anything that amends Nadon, that ameliorates that, that recognizes there is a broad diversity of jurists who may be able to work within the system and does not become bound to what, by this time, is an ancient understanding.... Probably, if we asked the people who were concerned 100 years ago, they would say that was not what they ever intended.

[The Vice-Chair, Conservative, John Nater]

Thank you very much.

Mr. Arseneault, the floor is yours for six minutes.

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

Thank you, Mr. Chair.

Welcome, Mr. Bergman and Mr. Thompson.

Mr. Bergman, for years, I was a member of the Association des juristes d'expression française du Nouveau-Brunswick, which has exactly the same ambitions as your new organization. I am fortunate because that organization was already around in New Brunswick when I became a lawyer. So it was easy for me to request that language rights and access to justice in French in New Brunswick be respected. Congratulations for all the volunteer work that you and your colleagues do in Quebec to that end.

That said, I was surprised to hear what you said today. This is the first time I have heard that Quebec judges are not bilingual. Given the number of presentations we've heard so far, I may be wrong, but my understanding was that the problem is that there has been no publication or translation of legal documents in English. However, in the oral proceedings in court, judges are able to understand and speak both languages. But you're telling us that this is not the case.

[Michael Bergman]

Based on my experience, outside greater Montreal, that's the reality, period. Within greater Montreal, it depends. Some judges are perfectly bilingual, while others say they can listen and understand, but in order to talk to us and say what they mean, they have to speak French. That's the problem. The litigant speaks English and the judge listens in English; the judge speaks French, the litigant listens in French. The intertwining of the languages makes it difficult for the parties to understand what is happening in the case.

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

Okay.

In my small, officially bilingual province of New Brunswick, we also have judges who are unilingual anglophones. It does happen. However, our interpretation system is very efficient. Having practised law in similar cases, I don't see a concern in that sense.

Why doesn't Quebec have legislation that allows for or requires simultaneous interpretation of trials conducted in both languages?

[Michael Bergman]

In Quebec, in provincial courts—not federal ones—there is none. It's zero. The Charter of the French Language has no provisions for interpretation such as the one you have here, in this room, simultaneous, automatic and paid for by the government.

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

Are you talking about Bill 101?

[Michael Bergman]

Yes.

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

I'm not from Quebec, but I have an idea.

[Michael Bergman]

Not just Bill 101, it's the system.

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

Okay.

I'm asking you a question as a federal member of Parliament. Our committee's role is to try to see how to help our society progress.

What request can you make to us, as federal members of Parliament, to find an answer to your problem in Quebec courts, which are under provincial jurisdiction?

[Michael Bergman]

We are asking for a funding program to make interpretation possible in each courtroom and courthouse, the way it is in this room and in the Federal Court and the Supreme Court.

Perhaps this is very expensive for Canada, but Canada needs a program like that. Every time there is a civil trial—it's a different story for criminal trials—there needs to be an interpretation service in the courtroom. With 21st century technology, it could be available. It is only a question of investment.

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

I'm just looking at courtrooms here. Access to justice includes prisons, police officers, and so on, but right now I'm just looking at courtrooms, without forgetting the other aspects.

Has your organization, which is brand new, started the dialogue with the provincial government to find out whether there is any openness to that effect?

[Michael Bergman]

Not yet. I have to say that we are like a baby learning to walk. As I said in my presentation, we receive only $77,000 for three programs, for six weeks, which will end in a few weeks. Those are simply programs trying to set up the basics, that's all.

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

Does the $77,000 come from the feds?

[Michael Bergman]

It comes from Justice Canada.

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

That's really interesting. Good luck.

Mr. Thompson, are you a jurist, a lawyer, too?

[Stephen Thompson]

No.

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

I would actually like the opinion of someone who is not a lawyer.

Your organization has been around for a long time. We have often met its representatives here. They are well organized and well informed.

I will repeat my question by asking you how could lawmakers ensure that bilingual, truly functionally bilingual, judges are appointed to the Supreme Court of Canada. What does your organization suggest?

You can say it in English if you want.