Official Languages Committee on Nov. 21st, 2017

[Sacha Baharmand]

Thank you for your question, Mr. Lefebvre.

I'd like to make one thing clear. When the parliamentary secretary refers to a $40-million envelope, he is referring to the current envelope, which covers the period from 2013 to 2018. We cannot discuss the next action plan and the Department of Canadian Heritage's horizontal initiative, which obviously includes a justice component, because it is still before cabinet.

That said, the department currently supports the training of those who work in the justice system and court personnel on a variety of levels.

For instance, some $600,000 a year is allocated to the Centre canadien de français juridique, in Winnipeg. It partners with provincial and territorial administrations precisely to help train their crown prosecutors, clerks, probation officers, and so forth.

The Réseau national de formation en justice is another organization that was established. The idea is to adopt a coordinated approach. You mentioned Collège Boréal. The department has given the college funding this fiscal year for a study aimed at identifying legal interpretation and court transcription needs. Those resources are in short supply across the country, so we are studying the situation as we speak.

[Paul Lefebvre, Liberal, Sudbury, ON]

Very good. Thank you.

I'm going to give the rest of my time to Mr. Vandal, since he had a few questions he wanted to ask.

[Dan Vandal, Liberal, Saint Boniface—Saint Vital, MB]

Thank you, Mr. Lefebvre.

I'd like to thank you, Mr. Mendicino, as well as the people who are with you.

As I understand it, when an individual applying for a judge's position identifies themselves as bilingual, you ask that person two further questions to determine whether they are in fact bilingual.

I'd like to know who determines whether a candidate is bilingual. Is it a committee?

[Marco Mendicino, Liberal, Eglinton—Lawrence, ON]

Yes.

If individuals self-identify, they are asked two additional questions.

First, the candidate is asked whether they are able to preside over a trial in the other official language. Second, they are asked whether they are capable of writing a decision in the other official language. The individual's answers are first assessed by an advisory committee. If the candidate is then appointed as a judge, the commissioner uses other assessment tools.

[Dan Vandal, Liberal, Saint Boniface—Saint Vital, MB]

What percentage of the individuals who come forward and get tested are tested further?

[Marco Mendicino, Liberal, Eglinton—Lawrence, ON]

As I mentioned, this is the subject of an ongoing collaboration between the minister, the commissioner and, obviously, the judicial advisory committees. When a candidate has been successfully appointed to the bench, there has been a dialogue between the minister and the commissioner for judicial affairs to develop new assessment tools to ensure that the level of official languages and bilingualism capacity remain at the high levels that we expect that to be at in order for Canadians to access justice in the official languages of their choice.

In practical terms, this can play out in two ways. One, there can be spot checks or audits. I've already mentioned that. Two, through role players such as the National Judicial Institute, which provides training to all judges, we can encourage ongoing training and continuing legal education in both official languages to keep those levels of bilingualism high.

[The Chair, Liberal, Denis Paradis]

Thank you very much.

It is now over to Mr. Clarke.

[Alupa Clarke, Conservative, Beauport—Limoilou, QC]

Thank you, Mr. Chair.

Mr. Mendicino, thank you for being here this afternoon.

I merely have a comment, but rest assured, it isn't partisan. I'm not quite sure where to begin, but here I go.

I wanted to repeat my NDP colleague's call for the names of any constitutional experts who advised your government in relation to its stance on Bill C-203.

I'd also like to point out that many political scientists and sociologists alike have studied this issue. It's a serious problem that has plagued Canada since 1982. Distinguished Université de Moncton Professor Donald Savoie demonstrated it quite clearly in his book Governing from the Centre. Working as an intern at the Prime Minister's Office, I saw the process in action—a process that puts Canada's democracy in great jeopardy. I am talking about the current concentration of power in Canada in the Prime Minister's Office and the Department of Justice. Together, the two entities assess every piece of proposed legislation to determine whether any part thereof could be challenged before the Supreme Court and deemed unconstitutional.

Although the practice is beneficial and legitimate, the problem is that it results in distorted public policy. The government should not rely on the interpretation of Department of Justice lawyers and constitutional experts that a piece of legislation could be deemed unconstitutional by a judge in the future. As lawmakers, we have the right to assert that a piece of legislation is sound and should move forward, despite what the constitutional experts might think.

If your government is really so concerned about constitutionality, why would you not submit a reference question to the Supreme Court on the bilingual capacity of judges? That would be the least you could do to ensure fewer distortions in our public policy and legislative authority.

As I see it, you should be taking the opposite approach, doing as you did when you were in the opposition. In other words, you should vote in favour of the bill and let Canadians decide whether there is any cause for a Supreme Court challenge, and let the judges, themselves, explore the matter in their expert writings.

Why, then, would you not refer the question to the Supreme Court in order to ascertain the opinion of the actual judges, beyond the government-paid experts at the Department of Justice?

[Marco Mendicino, Liberal, Eglinton—Lawrence, ON]

Thank you for your question.

First of all, as I told our colleague, we evaluate the merits of every private member's bill brought forward by members of the House.

We will evaluate them on the basis of their merits. While I appreciate your question, I have to dispute the contention that there has been any politicization when it comes to our appointments process. We have gone to great lengths to ensure the appointments process is open, transparent, and merit based. The quality of the appointments that we have seen to the superior court has been universally supported. That is I think in large part because of the great improvements we have made to the appointments process.

With regard to bilingualism, I think you will agree that the statistics bear out that we have made progress, both at the Supreme Court, through the appointment of Malcolm Rowe, who is functionally bilingual, and in superior court.

[Alupa Clarke, Conservative, Beauport—Limoilou, QC]

Sir, I'll reiterate my point in English, because I did not talk about politicization in the nomination process.

I was talking about the fact that in the Prime Minister's Office, the Privy Council Office, and the Ministry of Justice there is what we call the “charter-proof process”, which is very bad for democracy in Canada, because you let lawyers who are not elected members in Canada decide on the future of what could be a law and what to introduce or not introduce in a law. That creates policy distortion in this country. We should never let any lawyers in this country decide if a law will someday in the future be deemed anti-constitutional by a judge who may not even be sitting right now.

That was my point. We should not let non-elected people decide and distort legislative action in this country.

[Marco Mendicino, Liberal, Eglinton—Lawrence, ON]

If I could just—

[Alupa Clarke, Conservative, Beauport—Limoilou, QC]

Concerning the nomination process—

[Marco Mendicino, Liberal, Eglinton—Lawrence, ON]

Monsieur le président, if I could clarify, I want to assure my colleague—

[Alupa Clarke, Conservative, Beauport—Limoilou, QC]

You talk about constitutional experts. They are creating policy distortions in this country.

[Marco Mendicino, Liberal, Eglinton—Lawrence, ON]

Well, I just want to clarify that there is a process in place by which we debate laws. Those laws are debated at committee, in the House, and in the Senate, and then they come back to the House for final passing—

[Alupa Clarke, Conservative, Beauport—Limoilou, QC]

But that's not why your government has refused the law.

[Marco Mendicino, Liberal, Eglinton—Lawrence, ON]

Once in force, having received royal proclamation, they're enforced. They're there to be challenged. Sometimes they are challenged, and we have an independent judiciary who we place great faith in to evaluate and test the constitutionality of those laws, so I—

[Alupa Clarke, Conservative, Beauport—Limoilou, QC]

But we should not, sir. We should put the trust in Canadians to contest the law if they think it's anti-constitutional. Look, most of the Conservative Party voted against that law, so I'm alone on this one right now, but I'm telling you seriously that letting constitutional experts be at the centre of government—read Donald Savoie—creates humongous democratic problems in this country: policy distortion, lack of trust in us from the people, and a lack of courage and leadership in terms of the Canadian electorate.

Concerning your nomination process, sir, it's all good and transparent, etc., but it's not forged into the law, and the next government can say that it is going to the trash bin. I will ask you this: is bilingualism at the Supreme Court of Canada a principle that you agree with?

[Marco Mendicino, Liberal, Eglinton—Lawrence, ON]

Absolutely, but that isn't a contentious issue.

[Alupa Clarke, Conservative, Beauport—Limoilou, QC]

Do you want your principle to be enshrined and to stay for the next government, which will be Conservative?

[Some hon. members]

Oh, oh!

[Paul Lefebvre, Liberal, Sudbury, ON]

In another 20 years.

[Marco Mendicino, Liberal, Eglinton—Lawrence, ON]

We were doing so well on the non-partisanship thing.

[Some hon. members]

Oh, oh!

[Marco Mendicino, Liberal, Eglinton—Lawrence, ON]

I take it seriously. Trust me.