Official Languages Committee on May 4th, 2017

[The Chair, Liberal, Denis Paradis]

Good morning, ladies and gentlemen.

Pursuant to Standing Order 108(3), we are continuing our study of the full implementation of the Official Languages Act in the Canadian justice system.

Madam Commissioner, welcome to you and your team. I assume that, first, you will introduce the people accompanying you. Next, we will listen to you for about 10 minutes, then we will proceed with a round table.

We'll follow the same procedure in the second hour, but on the topic of air transport.

Go ahead, Ms. Saikaley.

[Ghislaine Saikaley, Interim Commissioner, Office of the Commissioner of Official Languages]

Thank you, Mr. Chair.

With me today are Pascale Giguère, the director and general counsel for the Legal Affairs Branch, Mary Donaghy, the assistant commissioner for the Policy and Communications Branch, and Jean Marleau, the acting assistant commissioner for the Compliance Assurance Branch.

Good morning, Mr. Chair and honourable members of the committee.

Thank you for inviting me to speak to you today as Interim Commissioner of Official Languages. I would like to take this opportunity to remind you that my team and I are always available to answer questions from parliamentarians, even during this time of transition for our office.

Your study on access to justice is of the utmost importance, and I would like to thank you for allowing me to share with you two important issues on this matter.

My comments concern the posting of Federal Court decisions and access to the justice system.

On the matter of Federal Court decisions, former commissioner Graham Fraser tabled a report to Parliament last fall on his investigation into the Courts Administration Service. This report followed his April 2016 report to the Governor in Council.

The problem concerns the posting of decisions on Federal Court websites, which is often not done in both official languages at the same time. In fact, it can take many months for a decision to be published in the other official language.

We started our investigation into this situation in 2007. Ten years later, complaints are still coming in. The Courts Administration Service is of the opinion that the publication of decisions on websites falls under Part III of the Official Languages Act, which governs the administration of justice.

The institution maintains that Part IV of the act, which sets out federal institutions' language obligations in terms of communications with the public—which we consider to include Internet communications—does not apply to Federal Court decisions because of the principle of judicial independence.

While we recognize the importance of this principle, we believe that publishing Federal Court rulings falls under part IV of the act. We also believe that it is the public's right to have access to justice in both official languages. That is directly compromised when rulings of federal courts are not published simultaneously on their websites in both official languages.

Numerous discussions with the Courts Administration Service have failed to resolve the dispute. Our 2015 final investigation report concluded that the Courts Administration Service was still infringing the Official Languages Act.

Because the institution did not act on his recommendation, then-Commissioner Fraser submitted a report to the Governor-in-Council and recommended that this ambiguity be resolved, either by tabling a bill or by applying for a reference to the Supreme Court of Canada.

Following the Justice Minister's decision not to respond to this recommendation, Commissioner Fraser tabled a report to Parliament.

To resolve this impasse, the legislation needs to be clarified. I hope that the committee will see fit to recommend that the government draft a bill to clarify the language obligations of the federal courts regarding the posting of decisions.

Access to justice is a fundamental right for everyone. Despite the provisions of the Criminal Code that recognize the right of all Canadians to be heard in the official language of their choice anywhere in the country, approximately two million Canadians from official language minority communities are running into problems trying to exercise this fundamental right. We are seeing the same situation in civil proceedings, where provincial or territorial laws recognize the right to be heard in either official language to various degrees.

Many of the obstacles are described in the 2013 study on access to justice that former Commissioner Fraser published in cooperation with his provincial counterparts in Ontario and New Brunswick. The study looked at the appointment process of superior court judges and the language training provided to them. It concluded that the process does not guarantee a sufficient number of judges with the language skills needed to hear Canadians in the official language of the linguistic minority without delays or additional costs.

This conclusion was based on two main findings.

First, there is no coordinated action to determine the needs of superior courts in terms of bilingual capacity or to ensure that a sufficient number of bilingual judges is appointed to these courts.

Second, there is no objective evaluation of the language skills of superior court judiciary candidates. Until recently, the only criterion for the superior court judiciary was a single question on the application form asking candidates whether they were able to conduct a trial in either official language. This self-evaluation was never verified objectively.

The study presented 10 recommendations to rectify the situation and stressed the importance of establishing a coordinated approach by the federal Minister of Justice, the provincial and territorial ministers of justice, and the chief justices.

The previous federal government did not address the recommendations of our study.

However, during the last year, we have noticed some progress. I would like to draw your attention to the changes the federal government made in October 2016 to the appointment process of superior court judges.

The new nomination form now includes more specific questions on candidates' language skills, and the new process includes the option of evaluating candidates' language skills. When the new process is fully implemented, the Minister of Justice will have access to the results of these evaluations when discussing a court's needs with a chief justice or when making recommendations for appointments to the bench. These changes are concrete measures that address some of the recommendations issued by Commissioner Fraser in his study.

This recent progress reflects an increasing awareness in the legal community with regard to access to justice in both official languages. However, there are still many other issues to overcome before we can say that we have achieved real equality of access.

Thank you.

I am ready to answer any questions you may have.

[The Chair, Liberal, Denis Paradis]

Thank you, Madam Commissioner.

We will now go immediately to our round-table.

Bernard Généreux, you have the floor.

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

Thank you, Mr. Chair.

I would like to thank the witnesses very much for being here this morning.

In the current study, we are dealing with two extremely important things. Unfortunately, I have the impression that there is one element that tends to take precedence over the other. I am talking about the appointment of bilingual judges to the Supreme Court. I believe that the issue of access to justice in both official languages in Canada is as important as, if not more so, than the appointment of bilingual judges. Perhaps I should say that the two subjects are of equal importance. The matter of appointing judges is often raised, while in reality the biggest work to be done is to make justice accessible in official language minority communities. My first set of questions will touch on that, because I really think we need to get a little more involved.

So far, the witnesses we have received felt that one of the major issues was financial resources. Indeed, there is not enough money to have common law and civil law decisions translated and made available in all the provinces. Such translations would make it possible, for example, to make case law accessible to everyone, across Canada.

We talk about having equal access to justice in both official languages in Canada, but we are far, far from it. Has there been an analysis or a study that could induce the government or governments to inject the necessary funds? Has anyone assessed how much money would be needed to make a practically instantaneous translation of the judgments so that they are accessible across the profession?

[Ghislaine Saikaley]

I am not aware of any particular study, but that is the subject of our report to Parliament on the Courts Administration Service. We have received many complaints that the courts are making decisions available in one language only to the public and that they are not available in the other language for several months or even several years. For us, that's a big problem.

For its part, the Courts Administration Service indicates that, for judicial independence reasons, a judge may render a decision in one language, and then the decision is translated. We do not consider this equal access to justice. Section 20 of the Official Languages Act provides that decisions, in certain cases, must be rendered in both languages, including when the proceedings have been conducted in both languages, and if it is a decision is of general public interest. According to the courts, very few of these decisions fall into this category, which means that the judges render them only in one language, and then they are translated.

We think the problem goes beyond translation; it affects the interpretation of legislation.

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

As I recall, representatives of the QCGN and the president of the Quebec Bar told us that the province and the federal government do not provide the necessary funds to have the judgments translated. We are giving a somewhat derisory amount, for example $300,000 or $500,000, which is paltry compared to the tens of millions of dollars that it would cost to translate all judgments.

Do you have a coercive way of encouraging the government to translate the judgments or to ensure that governments at all levels are providing the necessary funds for that?

[Ghislaine Saikaley]

No, we have no coercive way to do that, which is why we tabled this report in Parliament. We made recommendations and there was no follow-up. One reason for it was that the money isn't there to translate the judgments. As for us, unfortunately, we only have the power to make recommendations. That's why we have turned to Parliament.

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

Money is one aspect of the problem, but in the testimony we heard, people also mentioned the slowness of the system. According to them, the mechanisms for translating judgments are not in place. Apart from money, there is no willingness to see the system handle the translation of judgments. Witnesses noted that the fact that Quebec jurisprudence, in particular, was not used in English Canada because it was not translated had a negative effect. Indeed, in a number of courts at all levels across Canada, there would be a fundamental advantage to being able to use Quebec jurisprudence, just so as not to be cumbersome, among other things.

There should be ways of encouraging the government to invest in the translation of judgments. According to the witnesses we heard from, even the justice system doesn't seem to recognize the importance of putting forward translation to help the justice system.

[The Chair, Liberal, Denis Paradis]

Thank you very much for your comments, Mr. Généreux.

Go ahead, Mr. Lefebvre.

[Paul Lefebvre, Liberal, Sudbury, ON]

Thank you, Mr. Chair.

I would like to thank the witnesses for being here.

I'm a lawyer, and I live in a minority community, in Sudbury, Northern Ontario. I studied at the University of Ottawa in French. So this is of particular interest to me.

In your comments, you said that the nomination form for judges had changed. I found that the questions were clearer. I think the minister will be able to make a much more informed decision than before in determining whether they have the necessary qualifications.

Aside from that, there are challenges to overcome. On page 5 of your presentation, it says: “... there is no coordinated action to determine the needs of superior courts in terms of bilingual capacity or to ensure that a sufficient number of bilingual judges are appointed to these courts.”

Could you tell us who decides which regions need bilingual judges? Take Ontario, for example. Isn't it the Minister of Justice who says that this region needs bilingual judges. I would like to know who decides. Is it the chief justice of the court, a local group or the Department of Justice that decides which areas should have a bilingual judge?

[Ghislaine Saikaley]

It's the chief justices—

[Paul Lefebvre, Liberal, Sudbury, ON]

It's the chief justices of the province, right?

[Ghislaine Saikaley]

Correct. They must specify their needs.

In the 2013 study, we proposed that a process be put in place to ensure that the chief justices and the Department of Justice address these issues and determine the needs and resources required.

[Paul Lefebvre, Liberal, Sudbury, ON]

Is this dialogue taking place currently?

[Ghislaine Saikaley]

There seems to be progress. Our discussions with people from the Department of Justice suggest that they want to look at the recommendations we have made, but we haven't seen anything concrete yet.

[Paul Lefebvre, Liberal, Sudbury, ON]

The fact that in some areas there is a single judge who is able to hold a trial in French is somewhat frustrating. Demand is high. This judge is sometimes called upon to serve municipalities in various regions. No doubt, that was the role assigned to that judge, but I have some concerns.

How does the chief justice make these decisions? Who provides the data that the chief judge needs to make those decisions?

[Pascale Giguère, Director and General Counsel, Legal Affairs Branch, Office of the Commissioner of Official Languages]

I can tell you about the information we collected in the study. We looked at this specifically. We interviewed the chief justices of all the superior courts in the provinces covered by the study. All provinces were not covered, but some Atlantic and western provinces, and Quebec and Ontario, of course, were.

The chief justices told us that exchanges with the Minister of Justice usually took place when an appointment was imminent. Chief justices are asked what their needs are, but they have to be sensitive to linguistic needs. Sometimes the minority community can better identify the barriers or the needs, as you said earlier. For example, in one area, a bilingual judge may retire and another judge has to be appointed to replace him or her. The study spoke of the need to maintain contact between minority communities in the legal system, associations of francophone lawyers outside Quebec and chief justices, who are consulted by the Minister of Justice so that the latter knows in a timely manner what the needs are, when an appointment is imminent. Since not all chief justices are necessarily bilingual, the perspectives of the communities are sometimes necessary so that their needs are made known.

[Paul Lefebvre, Liberal, Sudbury, ON]

In northern Ontario—Sudbury, specifically—one of the bilingual judges has retired, and his position has been moved to meet a need in southern Ontario. This position has not been replaced in Sudbury. Situations like this bother me. That's why I was curious about how this system worked. Thank you very much for bringing your study, your findings and your comments.

The conclusion of your presentation document, which is certainly justified, reads as follows: “However, there are still many other issues to overcome before we can say that we have achieved real equality of access.”

Since there are a few minutes left, could you elaborate on that?

[Ghislaine Saikaley]

Of course, the appointment of judges isn't the only issue. There are issues at all levels of the justice system, be it the lack of interpreters or the lack of staff capable of providing an active offer of service in both official languages at the courthouse. All players are involved, in fact. The judges are only one part of the puzzle. Our study has focused only on the appointment of judges, but anything that supports the judicial function deserves to be considered through this lens.

[Paul Lefebvre, Liberal, Sudbury, ON]

That's sort of why the committee decided to study those issues.

Thank you.

[The Chair, Liberal, Denis Paradis]

Thank you very much.

Mr. Choquette, the floor is yours.

[François Choquette, NDP, Drummond, QC]

Thank you, Mr. Chair.

My thanks to the witnesses for being here today and for their testimony.

Access to justice in both official languages was a very important issue for former MP Yvon Godin, who sat on this committee as an NDP representative and whom I'm replacing in that capacity. He made it his cause and worked very hard on the issue. He introduced two bills on the bilingualism of Supreme Court judges, bills that were supported by former commissioner Fraser over the years.

Right now, there is a debate about a policy the Liberals have adopted on the appointment of bilingual judges. Of course, a policy is a very welcome first step, but we would like to see the bilingualism requirement for Supreme Court judges included in a bill.

Have you heard murmurs of this debate among constitutional experts, in terms of determining whether such a requirement would be constitutional or not? Mr. Fraser, the previous commissioner of official languages, never talked about this issue. Is this an issue that your team has addressed? What solution would you propose?

[Ghislaine Saikaley]

Of course, I have followed the committee's discussions on this issue, including the testimony of Professor Grammond, who is an expert on constitutional law. I heard his answer that it did not seem to be a problem. He suggested that the government ask the Supreme Court of Canada directly, which is an excellent suggestion. I agree with Mr. Grammond.

The other way to ensure that Supreme Court judges are bilingual is to remove the exception under section 16 of the Official Languages ??Act. This option could be faster and more effective.

I was very pleased with the government's announcement of the new process for Supreme Court judges; I'm all in favour of it. I believe that Canadians should be able to be heard and understood in their language before the highest court in Canada without the need for the judges to have an interpreter.

It is understood that I continue to support Bill C-208.

[François Choquette, NDP, Drummond, QC]

Thank you very much.

Congratulations on the activity that you organized to mark the 150th anniversary of legislative and judicial bilingualism on March 5. The work you have done is very much appreciated. A number of people were there to reflect on judicial bilingualism.

When I met Mr. Fraser for the first time, I remember that he had shown me the document you referred to earlier, which he had produced with his two provincial counterparts. He told me that it was his priority and that he would like something to come of it.

You talked about it earlier when you said that there had been progress. I asked other people, but they seemed to say that the progress was rather tentative.

Basically, it's still a self-evaluation process, but instead of one question, there are four or five.

[Ghislaine Saikaley]

There are four questions.