Official Languages Committee on May 11th, 2017

[Prof. Benoît Pelletier]

If that is so, it will also be the case with the directives currently being issued by the Prime Minister of Canada. Using non-legislative and non-constitutional means, he is indicating that Supreme Court judges must be appointed if they have a certain level of functional bilingualism. If that is the case, indigenous peoples will be penalized.

I have seen the comments from indigenous leaders, in particular from the Chief of the Assembly of First Nations. I have to tell you that I have no solution for them.

We have to remember that official bilingualism is part of the Constitution of Canada and it is perfectly normal that Supreme Court judges should have to be comfortable in both languages. But I have no solution for their particular case.

I know that Senator Murray Sinclair and National Chief Perry Bellegarde have warned the government of the danger that indigenous peoples will be adversely affected by a measure to impose bilingualism.

Honestly, I have no particular solution to suggest.

[The Chair, Liberal, Denis Paradis]

Mr. Samson, you have the floor.

[Darrell Samson, Liberal, Sackville—Preston—Chezzetcook, NS]

Thank you, Mr. Chair.

Mr. Pelletier, I first want to tell you that it is a pleasure to see you again. I heard a speech you gave a decade or so ago at the Fédération nationale des conseils scolaires francophones. The speech, which dealt with the ways to support the relationship between Quebec and minority communities, was much appreciated. I want to recognize your leadership once more and to thank you.

The situation involving the Supreme Court judges affects the two founding peoples. The three judges from Quebec have to be able to speak both languages, of course. So do the other six judges. So we can say that the playing field is level.

I also want to congratulate Justice Rowe. If my information is correct, his knowledge of French was not very advanced two or three years ago. He has really concentrated his energy on learning and mastering the language, and he has succeeded. That's a concrete example. I will now ask my question.

If you were Prime Minister, which option would you choose, and why?

[Prof. Benoît Pelletier]

I would choose to amend the Official Languages Act. That seems to me to be easiest and clearest under the circumstances. The Supreme Court itself renders decisions recognizing that bilingualism is a fundamental value of Canadian society and supporting the idea of moving towards the equality of both languages, not just in theory, but also in practice.

So, if we are actually supposed to move towards the equality of the two official languages, imagine if bilingualism is not required from those who want to be appointed to the Supreme Court of Canada. It seems to me that it contradicts the Supreme Court's own jurisprudence.

[Darrell Samson, Liberal, Sackville—Preston—Chezzetcook, NS]

So your choice would be to amend the Official Languages Act.

[Prof. Benoît Pelletier]

Yes.

[Darrell Samson, Liberal, Sackville—Preston—Chezzetcook, NS]

That could result in other amendments to the act.

[Prof. Benoît Pelletier]

Yes.

[Darrell Samson, Liberal, Sackville—Preston—Chezzetcook, NS]

Do I have a little time left?

I would like to let my colleague ask a question.

[The Chair, Liberal, Denis Paradis]

You have a minute left.

[Leona Alleslev, Liberal, Aurora—Oak Ridges—Richmond Hill, ON]

In search of the Canadian compromise, what would your opinion be of a mixed Supreme Court bench, where not all judges were bilingual? What impact would that have on perhaps changing the Official Languages Act—or in that case, would we need to look at the Supreme Court Act? Does it have to be all or nothing?

[Prof. Benoît Pelletier]

I think it has to be, because if one judge is not bilingual, then there will be a clear indication or signal sent to the lawyers that in order to be well understood by the judge, they have to speak English. Among the judges themselves, there will be one language used, and that will be English. I think it's a question of justice with regard to the citizens and with regard to all of those people who send their cases to the Supreme Court of Canada, whose cases are heard by the Supreme Court of Canada. It's also a question of justice among the justices of the Supreme Court themselves. Again, if there is one judge who does not speak French, then English is going to be the common language.

[Leona Alleslev, Liberal, Aurora—Oak Ridges—Richmond Hill, ON]

Would it be possible to amend the Official Languages Act to make it not all, but partial?

[Prof. Benoît Pelletier]

I don't see how it could be done without legislating the status quo.

[The Chair, Liberal, Denis Paradis]

Thank you very much.

Mrs. Boucher, you have the floor for three minutes.

[Sylvie Boucher, Conservative, Beauport—Côte-de-Beaupré—Île d’Orléans—Charlevoix, QC]

Thank you, Mr. Chair.

Good afternoon, Mr. Pelletier. It is an honour for us to meet you. Thank you for helping us better understand the nature of the Constitution. Sometimes, we can get lost in it.

The bill has been on the agenda for a good number of years. I was parliamentary secretary for official languages a while ago and, yes, Mr. Godin, I voted against the bill for many reasons.

As a follow-up to what we heard earlier, I have always had a little difficulty in explaining bilingualism too. Being fluently bilingual is one thing, understanding another language is another thing, and speaking that language is something else again.

In my view, bilingual judges must not only understand the language, but must also speak and understand legal language. Just now, when the people from KortoJura came to testify, I appreciated hearing them say that, when we ask judges to be bilingual, they first of all need to understand legal language.

I am reasonably bilingual. If I was at the Supreme Court as a lawyer, or if I became a judge, I am not sure that I could handle legal language in English as well as in French. That is where I have a little difficulty. Personally, I always had a hard time understanding why there would be no more need for interpreters. French has a number of variations, depending on where the speaker comes from.

I am from Quebec, and, when I hear Mr. Samson speaking, I am not sure I always understand what he is saying.

Ah, ah! I mean that in the nicest way.

That said, how can we go about enshrining in legislation the fact that we agree that judges must be bilingual without touching the Constitution, but including the legal nature of the language, which seems to me to be increasingly important in the light of the testimony we have gathered?

[Prof. Benoît Pelletier]

Two things. First, if someone wants to convince you that mandatory bilingualism would affect an essential characteristic of the Supreme Court, turn the question around. Ask them if being unilingual is an essential feature of the Supreme Court.

[Sylvie Boucher, Conservative, Beauport—Côte-de-Beaupré—Île d’Orléans—Charlevoix, QC]

That is a good point.

[Prof. Benoît Pelletier]

Clearly, the answer is no. However, unilingualism is what people want to change.

[Sylvie Boucher, Conservative, Beauport—Côte-de-Beaupré—Île d’Orléans—Charlevoix, QC]

Yes, that's true.

[Prof. Benoît Pelletier]

There you go.

So, basically, when you ask which situation would be changed, the answer is unilingualism. I will never be convinced that unilingualism is an essential feature of the Supreme Court of Canada. Believe you me, a Supreme Court judge will never be convinced of that either.

If there were a reference to the Supreme Court of Canada, I am convinced that it would declare, as I did—I can say that with no pretension because, in any event, my analysis was based on the judgment of the Supreme Court itself—that making bilingualism a requirement on the Supreme Court does not require a constitutional amendment.

Second, as for the rest, judges have to understand oral and written language. Must they then, on top of that, be able to speak in French? I can say that it would be desirable. However, if that were to become a political obstacle, a deal-breaker, an amendment to section 16 of the Official Languages Act could, at very least, represent a compromise.

[The Chair, Liberal, Denis Paradis]

Okay, thank you very much.

[Sylvie Boucher, Conservative, Beauport—Côte-de-Beaupré—Île d’Orléans—Charlevoix, QC]

Thank you.

[The Chair, Liberal, Denis Paradis]

Thank you, Mrs. Boucher.

Mr. Pelletier, thank you very much for this extraordinary conversation between yourself and the members of the committee. It was very enlightening. Thank you again on behalf of the committee.

[Prof. Benoît Pelletier]

Thank you.