Official Languages Committee on Nov. 21st, 2017

[The Chair, Liberal, Denis Paradis]

Pursuant to Standing Order 108(3), we are continuing our study on the full implementation of the Official Languages Act in the Canadian justice system.

It is our pleasure this afternoon to welcome Mr. Marco Mendicino, who is the Parliamentary Secretary to the Minister of Justice and the Attorney General of Canada as well as Mr. Sacha Baharmand and Mr. Stephen Zaluski.

Gentlemen, thank you very much for being here with us today.

I imagine you know the rules. You have about 10 minutes to make your presentation. Afterwards we will do a round table to hear the questions and comments of the committee members.

Mr. Mendicino, you have the floor.

[Marco Mendicino, Liberal, Parliamentary Secretary to the Minister of Justice and Attorney General of Canada]

Thank you, Mr. Chair.

Dear colleagues, I am pleased to be here today.

I will begin by saying that all Canadians have the right to fair and equitable access to the justice system. That system should be able to meet their needs in the official language of their choice.

The right to access justice in both official languages is crucially important. Today, I would like to present a status report on the important progress made by our government to promote that right.

Let me say at the outset that I am proud of the work that the minister and our government have accomplished thus far. We have made significant progress since taking government by renewing the judicial appointments process, increasing the number of bilingual judges on our courts, keeping better statistics and being more transparent so we can track progress, and providing better training for all actors within the justice system so we can improve our bilingual capacity in our courts.

Building on these initiatives, our government has announced a new action plan, whose objective is to strengthen the bilingual capacity of the superior courts across the country. This action plan, introduced by the Minister of Justice on September 25, 2017, includes seven main strategies.

First, as part of the renewed judicial appointments process launched in October 2016, applicants are required to complete a comprehensive questionnaire in which they must indicate whether, without further training, they possess the ability in English and French to read and understand court materials, discuss legal matters with colleagues, converse with counsel in court, and understand oral submissions.

In addition, the action plan now requires that candidates who self-identify as bilingual must respond to two additional questions, namely: one, can you preside over a trial in the other official language?; and, two, can you write a decision in the other official language?

In addition to that, we have augmented the degree of transparency by encouraging the commissioner for federal judicial affairs to disclose those portions of the questionnaire that touch on bilingualism and official languages capacity.

The action plan proposes measures to the federal judicial advisory committee and to the commissioner for federal judicial affairs which they should adopt to improve the information gathered in candidates' questionnaires, strengthen the assessment of candidates' second language skills, and gather more information on language skills.

The second strategy introduced by the action plan concerns the commissioner for federal judicial affairs. The commissioner will continue to play his primary role, which is to support the federal judicial advisory committees, in addition to managing the nomination process on behalf of the Minister of Justice.

As for the action plan, the commissioner for federal judicial affairs will have the mandate of carrying out language assessments, or of conducting random assessments of candidates.

The commissioner will also make recommendations to the Minister of Justice concerning an objective linguistic assessment tool, also for the purpose of strengthening the nomination process.

Third, the commissioner will examine the current language training program for judges, including the improvement of the practical component based on linguistic competency in hearings.

Fourth, with a view to further implementing the measures set out in the action plan, the minister has asked the commissioner to make training and information on the linguistic rights of litigants available to her judicial advisory committees.

Fifth, the minister has likewise requested the Canadian Judicial Council to develop training for judges on the linguistic rights of litigants, to be delivered through the National Judicial Institute.

The sixth strategy calls for the Department of Justice to work with all jurisdictions, as well as the courts, to develop the means for assessing existing bilingual capacity of superior courts. Here, the government believes that the chief justices remain best placed to inform the minister of the needs of their courts, and it is for this reason that she engages in a constructive dialogue with them and her provincial counterparts.

And finally, seventh, the government also commits to consulting the provinces and territories in order to better identify and understand their needs and co-operate with them.

This initiative will also require co-operation with NGOs, that will share with us the challenges faced by litigants from official language minority communities who require equal access to the judicial system.

Together with our government's previous efforts to enhance the bilingual capacity of the superior courts, we believe these seven components of the action plan are working and, Mr. Chair, the results are telling.

The most recent statistics from the commissioner for federal judicial affairs reveal that between October 2016 and 2017, 997 applications for superior court were submitted. From that number, 300 candidates possessed all four official language skills, according to their questionnaires. More importantly, 24 of the 74 judges appointed indicated that they possessed all four abilities, meaning that fully one third of all new superior court appointments in the last year are bilingual. The results are considerably stronger in bilingual priority jurisdictions such as northeastern Ontario—71%—and Montreal, where 100% of all the appointments in the last year were bilingual.

Also, Mr. Chair, look at the new chief justice of the Alberta Court of Queen’s Bench, Justice Mary Moreau, who was involved in numerous landmark cases involving language rights prior to her appointment to the bench and has since contributed to a bench publication on the language rights of the accused.

As you can see, much has been accomplished. More is required. With this committee's help and thoughtful deliberation, we will get there.

In conclusion, the action plan proposes important new measures for gathering information, training, and co-operation among many stakeholders. We are happy about the fact that this plan corresponds also to many recommendations made in the 2013 study of the federal Commissioner of Official Languages, conducted in partnership with his Ontario and New Brunswick counterparts.

We look forward to reading your report, and we appreciate the diligent study you are undertaking. I look forward to your questions.

Thank you, Mr. Chair.

[The Chair, Liberal, Denis Paradis]

Thank you very much for your excellent presentation, Mr. Mendicino.

We will begin our round table with Mr. Bernard Généreux.

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

Thank you, Mr. Chair.

I thank the three witnesses for being here today.

We started this study some time ago. Several witnesses told us that funds were insufficient for everything having to do with conveying information and training, particularly that of judges, but also training for court personnel.

Has any money been earmarked in your plan for the training of court clerks, for instance, and all those who are a part of the internal justice system organization?

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

I want to thank my colleague for his question. It is so important to have the necessary resources and funds to make progress in attaining the objective of access to justice in both official languages.

What I can tell my honourable colleague is that currently under the action plan we have an envelope of $40 million over five years. In that envelope, there are two pillars. One is informational. The other is with regard to providing training to all the role players within the justice system.

I want to assure my colleague that in both of those components the government is working closely with our provincial and territorial counterparts to ensure they have the resources and the support necessary to augment access to justice, so that anyone coming before the courts can have access to justice in the official language of their choice.

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

Forty million dollars over five years is $8 million a year for all of the provinces. It seems to me that that is not a lot of money to train all of the personnel so that people may have access to justice in both languages throughout Canada. I find this sum very small.

My next question, which is just as important, concerns self-assessment. Table 6 of the report we received from the Library of Parliament provides linguistic statistics. Among the 997 people who applied, 300 had the four required skills. I imagine that these results are not only from self-assessments. We know that the people who want to become judges must at a certain point provide a self-assessment. However, we were told several times that this self-assessment was not ideal. The assessment should be very definite, and be done according to very specific criteria. I were to assess myself to determine my level of bilingualism I would probably give myself a 9 out of 10, but that would not necessarily mean that this complies with reality.

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

Regarding current and future investments, we are inviting our provincial partners to make submissions at this time.

We are committed to listening to those submissions as we plan for future investments when it comes to improving and strengthening our official languages capacity in our courts.

With regard to your question on whether or not applicants are self-identifying, certainly within the last year through our renewed judicial appointments process, the questionnaire does offer the opportunity for candidates to self-identify as being bilingual or having the capacity to communicate in both official languages. I touched on that in my remarks. The statistics I provided highlighted the number of individuals who met all four of the criteria, which we use primarily to assess whether somebody has a sufficient capacity in both official languages, so that when we appoint them we can confidently say that they are bilingual.

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

As a government and Department of Justice, at what point are you really able to assess the information provided by the self-assessments?

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

We must cooperate with the commissioner on the one hand, but also with the advisory committees on the other.

We work very closely with both the judicial advisory committees and the commissioner for federal judicial affairs to, one, ensure that there are spot checks and a verification of the accuracy of the answers that are provided in the questionnaires. What we are looking for is an alignment between the answers that are given and what we can discern from the due diligence that is conducted by the judicial advisory committees.

Once they are appointed, it doesn't end there. We have worked very closely with the commissioner to encourage the provision of more spot checks and more training. I alluded to that in the course of my remarks. We are hoping to see new assessment tools that centre around levels of proficiency, so that the level stays very high.

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

Thank you.

[The Chair, Liberal, Denis Paradis]

Thank you.

Ms. Lapointe, you have the floor.

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

Thank you, Mr. Chair.

Welcome to you all. It is a great pleasure to welcome you here today.

Mr. Mendicino, you said earlier that the funds were for information, which must surely include translation, as well as the training of those who are appointed. You also said that you work with the provinces. In this regard, I would like to know what the federal government is doing to further access to justice in English in Quebec.

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

First, our minister and the Minister of Justice of Quebec have a good relationship. The dialogue is always constructive, particularly as regards improving access to justice in both official languages in the superior courts.

In addition, we do work that is ongoing with a number of associations whose purpose and mandate is to really ensure that language minority rights are observed wherever you are in the country. If it means ensuring that there is better French access in parts of Ontario—and I know that my colleague Monsieur Lefebvre would be able to speak quite passionately and personally about that—then we're prepared to make those investments, and the same would hold true in Quebec.

As I mentioned, we're seeing the fruits of those investments bear out. We see that in Montreal 100% of all appointments made there are truly bilingual. I think all members of the committee can take that as concrete evidence that we are making good progress to enhance access to justice in our superior courts.

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

Thank you.

As our colleague was saying earlier, we began this study some time ago. People have told us a few times that some people had trouble accessing services in English in Quebec correctional establishments.

Was this brought to your attention?

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

I'm aware that this has been raised as a concern. Obviously we would work very closely with Minister Goodale and his department to ensure that not just Public Safety but every institution and every branch is living up to the commitment of the charter, which is that any individual can access all federal institutions in the official language of their choice.

I don't know if one of my learned colleagues would like to add some detail to that, but I was made aware that it was raised as a concern.

[Sacha Baharmand, Counsel, Official Languages Directorate, Public Law and Legislative Services Sector, Department of Justice]

Thank you, Parliamentary Secretary.

The department is working actively to provide access to justice to the English-speaking community of Quebec. The department provides approximately $1 million a year to fund various projects, such as Éducaloi, the Paul-André Crépeau Centre for Private and Comparative Law, and the Quebec Community Groups Network. The department recently provided around $140,000 to the Quebec Community Groups Network to have it work with the new Association of English speaking Jurists of Quebec, to organize a large forum for the purpose of putting together a profile of the community with regard to the English-speaking population's access to justice in English. This forum should take place next March. It will certainly provide information on the department's intentions for 2018-23.

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

Thank you very much. I am happy to hear it.

Earlier, we talked about judges and the fact that there were many candidacies. In fact, almost 1,000 people applied, and only 300 were deemed to have the four necessary linguistic skills.

Do you have ways of ensuring the level of bilingualism of these candidates? Do you intend to do an assessment?

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

I believe the answer is yes.

Absolutely. We want to continue to have the assessment tools in place to ensure that people who are self-identifying as having a bilingual capacity are truly living up to that level of proficiency. I mentioned that before.

One thing that I do want to mention to this committee, which I think is also a positive indication of a culture shift, is that the number of people who are self-identifying, stepping up to apply to our superior courts, and saying that they have the ability to offer legal services in both official languages is a signal that we're seeing great progress, great strides, in adhering to the principles and the values in the charter. Indeed, I think this continues to be important, so these numbers bear out a positive story.

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

Thank you very much.

[The Chair, Liberal, Denis Paradis]

Thank you very much, Ms. Lapointe.

Mr. Choquette, you have the floor.

[François Choquette, NDP, Drummond, QC]

Thank you, Mr. Chair.

I thank all three of you for being here today to help with our study.

I will read an excerpt from a letter we received:

The Liberals' rejection of the private member's bill on the bilingualism of Supreme Court justices was all the more surprising and disappointing in light of the fact that during the last election campaign, the Prime Minister presented the Liberal Party of Canada as the party of bilingualism, and also given that in the past, the party had supported a similar bill.

And I should in fact add that this happened on three occasions.

This letter was signed by nine very well known academic authors who are among the most eminent specialists on the matter.

My question follows up on this shocking quote. What constitutional specialists or experts told you that a constitutional amendment would be necessary for my bill to be implemented? Could you send their observations and recommendations to the committee?

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

First, I want to thank my colleague for all of the work he did on this bill.

I know that this is a topic that is close to your heart. It is an important objective for all Canadians.

Our government has committed to ensuring that all Canadians have access to justice in the official language of their choice. The measures our government has taken up till now, including the recent appointment of Justice Malcolm Rowe to the Supreme Court of Canada, show that our government takes this policy very seriously.

[François Choquette, NDP, Drummond, QC]

Thank you, Mr. Mendicino.

I don't have much time, and I still have three or four questions for you, so I'd like to ask you to answer with yes or no. Will you send the names of the constitutional experts and their comments to the committee?

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

I simply want to ensure that there is progress with these appointments.

[François Choquette, NDP, Drummond, QC]

The appointment of Malcolm Rowe was a very good thing. I am convinced that the next nomination will also be very good. That is not the issue.

Could you send the list of experts to the committee, as well as their observations and recommendations?