Official Languages Committee on Nov. 21st, 2017

[Chief Justice Jacques Fournier, Chief Justice, Superior Court of Québec]

Of course.

My name is Jacques Fournier, and I am the Chief Justice of the Superior Court of Québec.

This is my third appearance before the Standing Committee on Official Languages. I met with you a year and a half ago. I also appeared nearly 20 years ago when your committee chair, Mr. Paradis, was chairing a similar committee. It was a joint committee, I believe. At the risk of sounding like a broken record, I will be saying the exact same thing I did then, in an effort to drive home the message.

Canada has a bijural legal system. Asserting that fact loudly and clearly, we enshrined it in legislation. We have a public law system that is based on common law. Under our federal legal system, judges at every level, including the Court of Appeal of Québec, Superior Court of Québec and Court of Québec, render excellent decisions. Of that, I am sure.

What the problem is, and has always been, is that the population of Quebec, including its judges, tends to be bilingual, whereas people outside Quebec are less likely to be bilingual. That is even truer among judges. That is not a criticism, simply an observation.

Judges render decisions in all areas of public law, federal law, criminal law, bankruptcy law, and so forth. When it comes to decisions rendered west of Quebec—from Ontario to the Rockies—and east of Quebec—in the Maritimes—it is as though an impenetrable curtain or screen separates the regions. Quebec case law is influenced by that of other Canadian provinces, especially in bankruptcy law and the all-important criminal arena. The reverse influence is not possible, however. Our case law is not portable. The wall separating Quebec from western and eastern Canada is impenetrable; Quebec's case law does not leave Quebec. Here, our way of thinking stems from our training as civil lawyers but influences our thinking in criminal matters and, clearly, bankruptcy law, because it is a form of private law. Our way of thinking is not portable and does not enrich Canada's body of law. Conversely, Canada's body of law does enrich ours.

For a multitude of reasons, I spent a lot of time studying what the Fathers of Confederation, the British parliamentarians, were trying to achieve when they wanted Canada to have a unique legal system. The idea was to achieve unity of thought across the entire country. Unity of thought, however, does not come from just one side of the fence. Ideas need to flow both ways in order to achieve mutual influence. That was what the Fathers of Confederation aspired to. Although it is still not the reality, it remains the aspiration.

My position has been the same for 20 years. Quebec's judges are capable of rendering excellent decisions. We saw a fine example of that at the Supreme Court. Quebec's decisions should benefit all of Canada, just as the excellent decisions of judges in common law jurisdictions benefit the entire country. What we want is reciprocity. As elected representatives, you hold that power in your hands. What we want to see is some form of reciprocity that will enrich Canada's judicial system.

That is the crux of my message for you today.

[The Chair, Liberal, Denis Paradis]

Thank you very much, Mr. Chief Justice.

We will continue with the President of the Quebec Bar.

[Paul-Matthieu Grondin, President of the Quebec Bar, Barreau du Québec]

Good afternoon.

Thank you, Mr. Chair.

Mr. Paradis, you were once the President of the Quebec Bar too. So was Mr. Fournier, who is now the Chief Justice of the Superior Court of Québec. So all three of us have the role of president in common.

Thank you for having me.

I have been President of the Quebec Bar since June 15, 2017. I was elected to head the Quebec Bar for a two-year term.

On April 4, 2017, you heard from my predecessor in this position, Madam President Claudia P. Prémont. Little has changed since her testimony. However, as a result of the invitation you sent me, I felt it important to briefly restate a number of the Quebec Bar's positions, and to add a comment about the future Chief Justice of the Supreme Court of Canada.

In terms of the bilingual nature of the Supreme Court of Canada and of the federally appointed judiciary, the Quebec Bar restates the right to be heard by a judge in either of the country's two official languages. This is a basic right that all Canadians must be able to enjoy without the need for an interpreter. It is a matter of the equal status of our official languages and of Canadians.

As for the appointment of a bilingual chief justice, in my opinion, there is a lot of talk about functional bilingualism. The best situation is for the chief justice to be able to read judgments in either of the official languages with no problem, understand both languages perfectly and be able to speak, or ask questions in either language.

In addition, since Canada is a country with a bijural tradition, the Quebec Bar believes that it would be appropriate for the next chief justice to be from the civil law tradition.

As for the obligation for legislation to be drafted and passed in both official languages, let me remind you of the Quebec Bar's position. Under section 133 of the Constitution Act, 1867, the National Assembly, just like the Parliament of Canada, must pass and publish its acts in both official languages. The federal Parliament could provide technical and financial assistance to Quebec in order to enable Quebec bills to be drafted and translated.

As for the translation of judgments rendered by Quebec courts, I share the opinion of Chief Justice Fournier in large part. A large number of judgments are rendered in Quebec in matters common to all provinces and all territories of Canada, such as family law, criminal law, constitutional law, and commercial law. Unfortunately, that wealth of legal wisdom is available only to those who understand French. Genuine access to justice requires all legal and judicial documentation to be available in both of Canada's s official languages.

So we are asking for Canada's Department of Justice to work with the various stakeholders in Quebec, including the ministère de la Justice du Québec, the courts, and SOQUIJ, to provide financial assistance to develop a strategy that will enable French-language jurisprudence from Quebec to be translated and made known across the entire country.

Thank you very much, Mr. Chair.

[The Chair, Liberal, Denis Paradis]

Many thanks to both of you.

We are now going to take 25 to 30 minutes so that the committee members can comment and ask questions.

Mr. Généreux, the floor is yours.

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

Thank you, Mr. Chair.

Good afternoon, Mr. Fournier and Mr. Grondin.

We have heard from a lot of witnesses. We have also had people from your organization before us, Mr. Grondin. As you said, the money that SOQUIJ would like to receive in order to be able to translate more documents is a major factor. From what I understand from the Parliamentary Secretary to the Minister of Justice, 40% of the allocation will go to training and information. As the total budget is about $8 million per year over five years, it is not a budget in which we are going to find the money we need to achieve that objective.

Mr. Fournier, this is the third time in a number of years that you have testified before the Standing Committee on Official Languages. You feel that you are repeating yourself. Given the current government's action plan, is it your impression that you would still be repeating yourself if you were still in this position in 20 years?

In its desire to have an open and transparent process, the government's objective is to have as many bilingual judges as possible in Canada. I understand from your comments that, because judges in Quebec are bilingual, they are able to read and understand all the judgments written in English, but the opposite is clearly not the case, given that most of the jurisprudence in Quebec is in French only, and the English-speaking judges elsewhere in Canada cannot understand it.

In an ideal world, all judges in superior courts, and in the Supreme Court of Canada, would be bilingual and everyone would be able to understand documents in both languages. According to what you are saying, the reality is that it will be a very long time before that happens.

[Chief Justice Jacques Fournier]

You have grasped what I said exactly.

If I may, I will add a comment.

Not only do the judgments go unread by our colleagues in other provinces because of the language barrier, but the doctrine is not influenced either. You know that university professors teach what they understand, at least, we hope that they do. Quebec's production of jurisprudence has become a little marginalized. The first point in my remarks was that it does not influence Canadian jurisprudence; but it also does not affect the doctrine. The wheel keeps on turning: jurisprudence enriches doctrine and doctrine enriches jurisprudence.

The language barrier could be removed if the judgments were translated. I am not talking about translating the several hundred thousand judgments that might be rendered in the course of a year. An editorial committee would have to be able to determine which judgments are important in matters of federal law. We need to be able to translate more important judgments. What is being done now is minimal.

At the Supreme Court, clearly, the judgments are translated as a matter of course. The Federal Court proceeds in the same way. In Quebec, if we had an editorial committee, it would be able to identify any recent judgments that are seen to be important for the rest of Canada. It might be a matter of aboriginal law, for example, where there are a lot of challenges. That is an emerging field of law.

We render good decisions in Quebec, at least in my view. Unfortunately, those decisions have no influence on the rest of Canadian jurisprudence. The other way around, we are being influenced more and more by Canadian jurisprudence. Something in that situation is not working, if the intent was to have a bijural system.

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

Does the fact that the interpretation of the judgments is not available, or at least translated for Canada as a whole, have any repercussions on the jurisprudence of a constitutional nature? What undesirable effects does that have?

[Paul-Matthieu Grondin]

Not all cases have constitutional questions that go right to the top. So there actually can be repercussions for the rest of Canada. Moreover, a lot of people all over the country interpret the Constitution one way or another. We do a lot of interpretations here in Quebec. Chief Justice Fournier talks about doctrinal texts that are mostly written by people in universities. Those interpretations do not necessarily get to the rest of Canada. Of course, there may be bilingual people elsewhere in the country who read them. That said, some constitutional interpretations rendered in Quebec, either in judgments or in doctrinal texts, certainly do not make their way all across Canada.

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

Okay. Thank you.

[The Chair, Liberal, Denis Paradis]

Thank you, Mr. Généreux.

We now move to Mr. Arseneault, from New Brunswick.

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

Good afternoon, Chief Justice Fournier and Mr. Grondin.

Before I became a member of Parliament, I practised as a lawyer in Acadia. As you know, New Brunswick is an officially bilingual province. You said earlier that there are two opaque walls to the east and the west of Quebec that prevent your neighbours from reading what you write. Curiously, in my case, the situation is quite the opposite. When I began to practice law in French, Quicklaw had only just appeared, the Internet was not yet up to the task, and we were not able to get data. So, to be able to read decisions in French, I went and read those from Quebec, including the ones on criminal law and bankruptcy law.

I am very familiar with the situation. It is true that English Canada does not know the legal legacy and evolution of Quebec society, even though it is a part of Canada. That is a major shortcoming. Things really have to be put right. So I would like to ask you a practical question.

What happens with court of appeal decisions in Quebec? Does the province of Quebec require your decisions to be translated simultaneously, even before they are made public?

[Chief Justice Jacques Fournier]

No. However, let me give you the example of the reference to the Quebec court of appeal of the federal plan for a national securities commission. It was a few years ago now. Knowing that the decision was going to be published nationally, the court of appeal delayed the publication of its judgment so that it could have two official versions. That is not institutionalized as a practice. With major cases, decisions of the Quebec court of appeal are not automatically published in both languages at the same time. There is no requirement to do so.

For us, the language of the judgment is generally determined by the identity of the person who loses the case. That is what we are taught. If one party speaks French and another party speaks English, we are going to be asked to write the judgment in the language of the losing party. That is so in the superior courts and also in the court of appeal. Judgments are not automatically published in both languages.

Let me take this opportunity to pass on a fact to you. Today, when I met with some people from the ministry, I found out that all the translation would be handled by SOQUIJ. That means that someone is actually able to take charge in a project like this. Clearly resources are limited in Ottawa, but they are to an even greater extent in the provinces. We need budgets to—

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

Chief Justice Fournier, let me interrupt you to point out that I come from a small province that is not very rich, but that manages to do it. I understand what you are telling me. It is a reality. However, I have a hard time understanding that, in a big province like Quebec, judgments from the court of appeal cannot be made available simultaneously in both languages, especially when one party speaks English and the other party speaks French. I have a hard time understanding that.

Are you exerting any pressure on the provincial government to study the ways in which the other provinces operate and to find out how decisions can be rendered in both official languages in Ontario?

[Chief Justice Jacques Fournier]

Mr. Arseneault, we have a really hard time exerting pressure to get funding. The number of translations done is very limited. Exerting pressure so that all judgments can be translated is like banging your head against a brick wall.

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

I was not talking about all judgments. I was talking about those from the court of appeal.

[Chief Justice Jacques Fournier]

Do you know how many court of appeal judgments we have in the province of Quebec?

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

Pro rata, I would say that it would be the same number as in New Brunswick. Except that, in New Brunswick, the judgments are bilingual.

[Chief Justice Jacques Fournier]

The answer is 1,600 judgments.

I admire the way New Brunswick goes about it. So please don't blame me.

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

I am not blaming you.

[Chief Justice Jacques Fournier]

The fact remains that, given the number of appeals here, we cannot require it; it will not work.

However, I have been waving the flag for years, saying that what we have to do is find a way to export the great product we make here, at least in the fields of public and federal law.

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

Specifically, what are you asking our committee for today in order to solve the problem?

[Paul-Matthieu Grondin]

Can I answer that question?

The budgets we have previously requested for SOQUIJ could help us a lot. Then a committee made up of chief justices, or of judges of a certain court, and others involved, could determine which judgments are of interest and should be translated.

The reality is that some judgments are procedural in nature. We do not want to translate for the sake of translating, but we do want to translate everything that can leave a durable legacy. Our requests are reasonable. We must be clear on that.

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

Do I still have time, Mr. Chair?

[The Chair, Liberal, Denis Paradis]

You have one minute.

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

Okay.

Some representatives of the QCGN came to testify before the committee not so long ago. They told us that there really was a major concern in terms of jurisprudence.

Don't put that flag down, Mr. Chief Justice. Keep waving it.

I feel that you really have to go and see what is being done elsewhere. I remember that, when I was a student, we met with some lawyers from Louisiana. I come from a province where we practice English common law in French. But it is the opposite in Louisiana; they still practice civil law. It is a hybrid system, in that they practice civil law and common law, but in English. That's our world turned upside down. In my opinion, it makes a lot of sense to see what is being done outside Quebec, so that some reasonable solutions can be found.

You talked about 1,600 decisions coming from the Court of Appeal, but the volume is not the same in New Brunswick. You cannot compare 1,600 decisions to about 200 decisions in New Brunswick.