Official Languages Committee on May 30th, 2017

[Prof. Daniel Jutras]

I think that we share the same view, but in terms of skill in both languages, I am suggesting a range. It’s not binary; it is not just yes or no. For example, I am trying to learn Italian these days and it is not easy. I am not at all bilingual with Italian but I am with English. It is difficult to measure. It is difficult to measure that ability in terms of a legislative exercise or a legal challenge.

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

Let me interrupt you. Going by the tests we have been shown, the questions the candidates are asked, you don’t need a very good knowledge of the other language to answer them.

[Prof. Daniel Jutras]

I think that is important. Measuring bilingualism is done by tests. Language experts can measure it through tests, but I am not sure that an appointment as important as justice of the Supreme Court should be decided by an individual’s degree of bilingualism. The possibility of rising to the Supreme Court being determined by failing a test that is now given to public servants, to senior federal public servants, is a little alarming.

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

Learning a language is automatically an ongoing process, actually.

[Prof. Daniel Jutras]

Exactly.

The important thing for me—and this is what we mean by “functional bilingualism”—is that you have sufficient command of both languages to do the job. It is always measured functionally, that is, in the context of the task to be done.

In my opinion, a high degree of skill in both languages is required. I have described to you a little bit of what is involved. You have to read complex texts. You have to interact with very intelligent people in another language, which requires advanced skill in both languages.

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

Let us suppose that Supreme Court judges have to talk about nuclear power or end-of-life conditions. The terminology in each area, either about electricity or anything else, is extremely complex and involves specific vocabulary.

Earlier, you were talking about the quality of the translators and interpreters working on the Hill. Even if the judges were completely bilingual, we would still need their services.

[Prof. Daniel Jutras]

Yes.

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

The entire government and legal apparatus absolutely needs them.

[Prof. Daniel Jutras]

Exactly. I believe that service must be available. The worst-case scenario we can think of is a non-bilingual judge not wearing an earpiece for fear that someone might notice, because wearing the earpiece would mean that he is not bilingual and does not have the required skills. That situation would be a little unfortunate.

That said, I want to go back to something I said and that I really believe. There are important considerations with appointments, whether it is representing the diversity of the population of Canada, or anything else. Choices always have to be made because no one has all the required qualities. So there is a priority order. In my opinion, one of the essential qualifications, other than legal knowledge, is bilingualism. It is an operational ability. It allows the court to function. I say and I repeat, the court is working at the moment, even though there have been unilingual judges in recent years. There are nine sitting judges. No judge ever ends up sitting alone and not understanding a word of what is going on. That does not happen. There is always a certain level of understanding.

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

Let me ask you a question. Imagine that we had legislation that required all Supreme Court justices to be bilingual. Do you believe that we could one day also ask all parliamentarians to be bilingual? Could we get to that point because of the requirement we imposed on the Supreme Court?

[Prof. Daniel Jutras]

Quite frankly, I don't think I can answer that question. You know your job, and all its political ramifications.

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

I just opened a door and I can shut it again right away.

[The Chair, Liberal, Denis Paradis]

Thank you very much, Mr. Généreux.

We now move to Paul Lefebvre.

[Paul Lefebvre, Liberal, Sudbury, ON]

Thank you, Mr. Chair.

Mr. Jutras, thank you very much for being here with us. I have read your bio and I congratulate you on your achievements.

A number of aspects intrigue and interest me. As you know, access to justice in both official languages is critically important, at least for me. When we go to court, we have to know that the judge in front of us can understand us in the language of our choice, especially at the Supreme Court of Canada, the highest court in a bilingual country.

Your career took you to the Supreme Court, You worked with Chief Justice Beverley McLachlin as—

[Prof. Daniel Jutras]

I was executive legal officer.

[Paul Lefebvre, Liberal, Sudbury, ON]

…executive legal officer in the Supreme Court. You said that, when the judges meet for their discussions, everything goes on in both languages. In your experience, and so that we understand clearly, if someone comes to the Supreme Court and presents a brief in French when there is a unilingual anglophone judge—because there have been some in the past, even during the years when you were there—there is no translation—

[Prof. Daniel Jutras]

There is no official translation structure.

[Paul Lefebvre, Liberal, Sudbury, ON]

So they cannot ask the translation service to translate the brief for them?

[Prof. Daniel Jutras]

Frankly, in all honesty, I do not know. I did not work in the judges' internal offices. I do not know how they access the information.

[Paul Lefebvre, Liberal, Sudbury, ON]

The justices of the Supreme Court meet every day to discuss judgments—I have seen the table they sit at; it is really something. How do we know that the content of a case presented in French is discussed in French when there is a unilingual English judge at the table?

[Prof. Daniel Jutras]

I do not know. Once again, when they sit around that table, it is them alone. No one else is in the room. So I do not know. I will say that, in recent years, there has certainly been a change there. I have seen other situations when judges are having conversations among themselves and they switch between English and French because a lot of judges speak French now. The Quebec judges all speak English, of course. That is interesting, actually. One cannot imagine a unilingual francophone judge being appointed to the Supreme Court. That is something else to consider.

[Paul Lefebvre, Liberal, Sudbury, ON]

Certainly.

[Prof. Daniel Jutras]

I was recalling the conversations because, clearly, when a judge is unilingual English, it is more difficult to have a conversation in French about a case submitted in French.

[Paul Lefebvre, Liberal, Sudbury, ON]

The critical question is whether francophone litigants who come to the court will be understood by someone. Of course, they should have access to translation and interpretation service. I agree with you, those services are excellent. However, with simultaneous interpretation, it is more difficult to understand the argument being made. In my view, that puts litigants at a disadvantage, especially at the Supreme Court of Canada.

[Prof. Daniel Jutras]

It’s both symbolic and practical.

If you are interested in the symbolic aspect, whether it is actually real on the ground or not does not matter. If you’re concerned about the symbolic aspect, we have to fix it.

Being concerned about the concrete and practical aspect means wondering whether there can be any misunderstanding that would prevent an individual from having access to justice. Personally, that does not worry me much.

There are nine judges around the table. You work in Parliament, have interpreters and are on a parliamentary committee. There may be people in the House of Commons who are not perfectly bilingual. I imagine that is the case. Sometimes interventions are made in French and they are translated. If one of your colleagues said that what someone had said was frightening, you would say that was not exactly what they said. This is exactly what happens in court.

There are nine judges around the table and they talk to each other. The possibility that a unilingual English-speaking judge who heard a case in French writes the judgment and makes a fundamental error is zero. Let’s be honest, it’s impossible.