Official Languages Committee on Feb. 7th, 2023

[Patricia Lattanzio, Liberal, Saint-Léonard—Saint-Michel, QC]

I will be brief, Mr. Chair.

The amendment provides a great opportunity to promote and protect French outside Quebec. Even more important is equal access to justice, because it is a necessary service. I think this amendment will be very well received across the country. Here is an opportunity for the federal government to take into account this equal access to justice in both official languages when appointing superior court judges.

I would add that the Office of the Commissioner for Federal Judicial Affairs should provide the necessary language training for federally appointed judges.

[The Chair, Liberal, René Arseneault]

Thank you.

Ms. Ashton, you have the floor.

[Niki Ashton, NDP, Churchill—Keewatinook Aski, MB]

This amendment is closely related to Manitoba's reality, since the province has a large francophone community. Thanks to the work of francophone lawyers across the country, we know that the situation is quite serious, especially here in Manitoba. No judge can hear a case in French, which is obviously unacceptable. This is not theory, it is the reality here, and it must be changed.

I would like the team that is with us to clarify something. We want to make sure that this amendment casts a wide net, since access to the courts is so important. Proposed subsection 16.2(1) and section 16.3 are about the language proficiency of superior court judges, and proposed subsection 16(3) is about appointments to the federal courts.

Does the term “superior courts” also include the federal courts?

[Warren Newman]

According to the Department of Justice, in this context, it includes the federal courts. Reference is made to the Interpretation Act, which includes a broad definition of “superior court”.

[The Chair, Liberal, René Arseneault]

Thank you.

Is everything okay, Ms. Ashton?

[Niki Ashton, NDP, Churchill—Keewatinook Aski, MB]

The sound cut out a bit. If I understood correctly, it includes the federal courts? Is that indeed the case?

[Warren Newman]

Yes.

[Niki Ashton, NDP, Churchill—Keewatinook Aski, MB]

Okay. Very well, thank you. If is important to us that this be the case.

[The Chair, Liberal, René Arseneault]

Thank you, Ms. Ashton.

Mr. Beaulieu, go ahead.

[Mario Beaulieu, Bloc, La Pointe-de-l'Île, QC]

I am inclined to oppose this, as I believe it will have harmful implications. Mr. Newman will confirm or deny that. It's like requiring all federal court judges in Quebec to speak English, when there are about 9% English speakers in Quebec. We already have the opposite problem, sometimes—that is, we have difficulty accessing justice in French when there is an English-speaking judge.

I am under the impression that, although it is not clearly stated, this implies that all judges in Quebec are bilingual and therefore speak English. Did I understand this correctly?

[Warren Newman]

According to the wording, the importance of equal access to justice must be taken into account. Thus, there is still some discretion as to how many judicial candidates should be subject to the bilingualism requirement. Moreover, this refers strictly to the appointment of superior court judges, of course, and not to the courts whose appointments are the responsibility of the Government of Quebec.

[The Chair, Liberal, René Arseneault]

Mr. Godin, the floor is yours.

[Joël Godin, Conservative, Portneuf—Jacques-Cartier, QC]

Mr. Chair, I would like to ask Mr. Newman a question.

Ms. Ashton said that there may be a problem with access to courts in French in Manitoba. Bilingualism of judges is not mandatory. What is important is that Franco-Manitobans have access to justice in French. So wouldn't requiring judges to be bilingual in order to apply be limiting?

To address the needs Ms. Ashton mentioned, it is important to ensure that Franco-Manitobans have access to justice in French.

[Warren Newman]

In Manitoba, Franco-Manitobans, like other Manitobans, are guaranteed the ability to use both French and English in court. Everyone has the right to plead in their own language. We are talking about section 23 of the Manitoba Act, 1870, which is the equivalent for Quebec of section 133 of the Constitution Act, 1867.

The administration of justice in the provinces is within their own jurisdiction. This amendment proposes that, in the appointment of judges—including those of the superior courts in Manitoba, of course—the federal government should take the importance of equal access to justice into account.

This does not really address all the other structural needs that must be addressed to ensure that the courts truly operate equally, in French or in English. I believe, however, that this is not in itself the amendment's purpose.

[The Chair, Liberal, René Arseneault]

Mr. Godin, go ahead.

[Joël Godin, Conservative, Portneuf—Jacques-Cartier, QC]

Mr. Newman, I have another question for you.

The right to access the courts in both official languages is enshrined in the Canadian Charter of Rights and Freedoms. The obligation to provide these services is covered in section 1. This section does not ensure that French-speaking judges will meet the needs. Manitoba is given as an example, but it could be any province or territory.

Is it necessary for a judge to be bilingual in order to be able to meet the specific needs of francophones in Manitoba?

[Warren Newman]

Again, I would venture to answer that question, which I would prefer to avoid doing, out of caution.

In constitutional terms, you mentioned the Canadian Charter of Rights and Freedoms. The provision that concerns courts is section 19, which is limited to courts established by the Parliament of Canada, as well as those established by the New Brunswick legislature. The guarantee for Manitoba comes from another constitutional statute, as I have mentioned. That is the Manitoba Act, 1870. These guarantees are equivalent in terms of jurisprudence. The Manitoba language rights reference confirms that.

So a constitutional right to use either language exists in Manitoba, New Brunswick, the federal government and Quebec. In part III, in particular, the Official Languages Act attempts to supplement this constitutional minimum for the use of either language by adding a series of other rights.

However, one cannot necessarily predict that the situation will improve in every province. Some collaboration is also needed at the provincial level.

[The Chair, Liberal, René Arseneault]

Thank you, Mr. Newman.

Ms. Ashton, you have the floor.

[Niki Ashton, NDP, Churchill—Keewatinook Aski, MB]

Thank you.

I just wanted to talk about the reality here at home and about why we support what is in this amendment.

This enables us to have a framework for validating judges' language proficiency. It enables us to provide language training. A judge can say that they are bilingual, but this is about verifying that through an evaluation. It is also a matter of providing courses, so that judges can preside over courts in French. Currently, this is not the case in Manitoba. We do not have judges presiding over courts in French.

I would also like to make it clear that Manitoba has a strong desire to welcome francophone immigrants. That desire is really clear within the francophone community. That said, the last thing we want as parliamentarians is to welcome a good number of immigrants and tell them that in Manitoba they will have access to all the rights available to Canadians, except the right to access justice in their language.

In theory, they all have that right under the act, but in reality, there are no judges presiding over courts in French. I know that in some cases people have to force themselves to stand trial in English, which is obviously unacceptable.

This is a clear message that francophone lawyers in Manitoba are sending.

I hope that we can support them in what they are saying through this amendment.

[The Chair, Liberal, René Arseneault]

Mr. Godin, go ahead.

[Joël Godin, Conservative, Portneuf—Jacques-Cartier, QC]

Mr. Chair, I will continue on the same topic as Ms. Ashton.

I think the priority should be the appointment of francophone judges in Manitoba. In my opinion, this is the key to solving the problem that Canadian citizens, and particularly those in Manitoba, are experiencing.

[The Chair, Liberal, René Arseneault]

Mr. Beaulieu, go ahead.

[Mario Beaulieu, Bloc, La Pointe-de-l'Île, QC]

Section 12 of the Charter of the French Language states the following:

12. A person to be appointed to the office of judge shall not be required to have knowledge or a specific level of knowledge of a language other than the official language unless the Minister of Justice, after consultation with the Minister of the French Language, considers that the exercise of that office requires such knowledge and that all reasonable means have been taken to avoid imposing such a requirement.

Do you think this amendment conflicts with that section of the charter?

[Warren Newman]

No, as this section of the Charter of the French Language covers the appointment of judges by the Quebec government to the Court of Quebec. It does not cover the appointment of judges to the Quebec superior courts or to the Quebec federal courts. This is actually being challenged in the Court of Quebec.

In this case, the role of the Minister of Justice is relevant to the appointment of judges by the Quebec government, not the federal government. Thus, there is no conflict or incompatibility.

[The Chair, Liberal, René Arseneault]

Thank you, Mr. Newman.

Ms. Lattanzio, go ahead.