Official Languages Committee on May 4th, 2017

[François Choquette, NDP, Drummond, QC]

There are four questions instead of one. The idea is to have the option to evaluate language proficiency. That's still an option. Will that be done some day? We don't know.

It is like the big debate on GMOs right now: there is an option to indicate on the label that a product contains GMOs. However, in Canada, there is no indication on any product that it contains GMOs, but it is an option.

It's the same thing here: we say that there's an option to assess language skills. In the case of someone with university degrees in both French and English, there's already evidence of their bilingualism. That's a different story. If not, how can this self-evaluation process ensure that a person is bilingual?

That's what Mr. Fraser, the former commissioner, was telling me. So here we are with the same problem: judges who do not have the ability to provide bilingual service when they are supposed to be bilingual.

How can this process guarantee that judges are bilingual?

[Ghislaine Saikaley]

We have not seen the results yet, but as we interpret this evaluation process, it will have more questions and they might be more targeted. We understand that. If candidates respond that they do not have the required bilingual skills, they will not be evaluated. We will develop a system to evaluate people who say they are bilingual and then confirm their bilingual skills.

[François Choquette, NDP, Drummond, QC]

Do you know when this evaluation process will take place? It's under discussion and you are working on it with the Department of Justice, correct?

[Ghislaine Saikaley]

The people in that department are working on developing the process. I do not know whether they're going to consult us, but we'll certainly continue to follow up on the recommendations of our study.

[François Choquette, NDP, Drummond, QC]

I hope that they will consult you, given the tremendous work you have done, jointly with the three commissioners, and the report you have tabled.

[Ghislaine Saikaley]

We can definitely see that the first steps they have taken follow our recommendations. We want them to implement the other recommendations.

[François Choquette, NDP, Drummond, QC]

Thank you very much, Ms. Saikaley.

[The Chair, Liberal, Denis Paradis]

Thank you, Mr. Choquette.

We'll now turn to Mr. Arseneault.

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

Thank you, Mr. Chair.

Welcome, everyone. Thank you for your presentations. They are really important.

You referred to section 16 of the Official Languages Act. For the sake of the average person, let me clarify that this section states that every federal court, other than the Supreme Court of Canada, has the duty to ensure that the person hearing the case understands English or French without the assistance of an interpreter. This is what the section basically says. The Supreme Court of Canada is the exclusion in section 16.

Is that the exclusion you were referring to, Ms. Saikaley? Do you know the history of this exclusion? Why was this exclusion included in this section? At the time, what were the reasons that led the legislator to provide for such an exclusion?

[Ghislaine Saikaley]

Ms. Giguère, do you know anything about that?

[Pascale Giguère]

The Official Languages Act was revised in 1988. When we read the debates from that time, we see that some members of Parliament, mainly from western Canada, were apprehensive. They were afraid that, if the Supreme Court judges were required to be bilingual, given the small number of judges on the court, that would prevent some candidates from being appointed. That was a concern at the time.

Times have changed. A number of years have passed and things have evolved. There is now a pool of bilingual judges in superior courts, appeal courts and the legal profession, basically the places from where the Supreme Court judges are recruited. This pool is much bigger than it was in 1988. So this concern may no longer be relevant today.

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

Exactly.

That brings me to the following question. Is it possible to list all the lawyers graduating from francophone or bilingual law schools and to find out how these people are distributed across the country from coast to coast?

Since 1988, many people have been studying law in French. I myself am a former student of the Faculty of Law at the Université de Moncton, which is francophone. The University of Ottawa now teaches law in French. I think even the Université de Sherbrooke teaches common law in French. I don't know all the details, but I know there has been a rapid evolution. When I was studying at the Université de Moncton, there were students from practically every province. Those students' mother tongue was English and they came to study in Moncton. That must also happen in Ottawa and elsewhere.

Historically, I can understand the apprehension and fear of the people in the west of not having judges from their area at the Supreme Court because of the bilingualism requirement. However, I find the exception to be inconsistent, since judges in other federal courts must be bilingual. After all, there are federal courts in western Canada. Why is there an exception for the Supreme Court of Canada?

Well, let's move on from the fear and apprehension.

Are you familiar with how the supposedly bilingual lawyers have been distributed since the advent of law schools in French?

[Pascale Giguère]

I know the Ontario Bar collects that kind of information. I am a member of the Ontario Bar myself, and when I complete the declaration as a member of the Bar once a year, I have to provide my identity and specify my linguistic abilities.

As far as universities are concerned, I do not think they collect such data themselves. So the administrative body that governs the legal profession in each province is probably in the best position to collect that kind of information. The umbrella federation of all the provincial bar associations could perhaps ask them to collect that kind of data, but I do not think it's done systematically.

A few years ago, for a study they did, Mr. Power and Mr. Grammond collected data on the number of bilingual judges in each province. Those data may no longer be up to date, but they do exist.

It would actually be up to the bar associations governing the legal profession to collect those data.

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

My next question is about all the translators and interpreters who work for those courts. I wonder about services to litigants when the proceedings are not in their mother tongue. The answer is probably obvious.

If the judges working in those courts were bilingual from the outset, we would not need all those resources. We are talking about human resources and costs. Has anyone ever thought of calculating the savings if tomorrow morning there were only bilingual judges in those superior courts, including the Supreme Court?

[Ghislaine Saikaley]

I don't think anyone has done the math. It's a good question.

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

That's all.

[The Chair, Liberal, Denis Paradis]

Thank you, Mr. Arseneault.

We will now go to Linda Lapointe.

[Linda Lapointe, Liberal, Rivière-des-Mille-Îles, QC]

Thank you very much, Mr. Chair.

My thanks to the witnesses for being here with us this morning. This is very enlightening.

Earlier, you talked about the 2015-16 report of the commissioner of official languages, Mr. Fraser. Have we committed to implementing the recommendations on access to justice in both official languages? We are talking about improving the bilingual capacity of the superior courts. Have some recommendations been implemented?

[Ghislaine Saikaley]

Are you talking about the report on access to justice?

[Linda Lapointe, Liberal, Rivière-des-Mille-Îles, QC]

Yes.

[Ghislaine Saikaley]

We tabled it in 2013. We did not receive an answer.

[Linda Lapointe, Liberal, Rivière-des-Mille-Îles, QC]

You received no answer?

[Ghislaine Saikaley]

No, we received no answer from the previous government.

[Linda Lapointe, Liberal, Rivière-des-Mille-Îles, QC]

My understanding was that there was some improvement, if only in the evaluation of the two languages, wasn't there?

[Ghislaine Saikaley]

Yes.

Last fall, a new appointment process for superior court judges was announced, including the new questions on the form. The evaluation process is also supposed to be done. That's a first step.