Debates of March 19th, 2010

Supreme Court Act

[Yvon Godin, NDP, Acadie—Bathurst, NB]

Madam Speaker, I want to thank the hon. member for Madawaska—Restigouche.

I will try not to speak too fast. That is what happened at the Supreme Court; someone was speaking very fast. The Chief Justice of the Supreme Court asked him to slow down since the interpreters could not keep up and someone was being judged. I just wanted to mention that. I think we should bear that in mind because the Supreme Court is the last court in the land to which an individual has recourse.

The Conservatives are saying that they respect both official languages. Take for example the Olympic Games. All week they have been making statements in the House of Commons to the effect that the Olympic Games were held in both official languages and that everything went well. No one is criticizing the Olympic Games themselves, but there was something missing culturally speaking. However, the Conservatives never talk about that. Even the Minister of Canadian Heritage and Official Languages publicly apologized for this. He thought it was a shame. For a week we have been listening to the Conservative Party say in the House of Commons that it respects both official languages. If it truly respects the equality of the two official languages of the country, French and English, then this is a good opportunity to prove it. When the Federal Court has to be bilingual, when the Federal Court of Appeal has to be bilingual, then the Supreme Court of Canada, the highest court in the land, has to be bilingual as well.

If the Conservatives vote against the bill, this will prove that they do not support bilingualism in Canada, they do not support the two official languages and they do not support the two founding peoples of this country. This will be a test for the Conservatives and they will have to make a choice.

[Richard Nadeau, Bloc, Gatineau, QC]

Madam Speaker, I thank my colleague from Acadie—Bathurst, who is working very hard for Acadians and all his constituents as well as for ensuring that French is respected both within New Brunswick and across Canada.

The hon. member knows that I am a sovereignist, a separatist, with a Franco-Ontarian background who has lived in Saskatchewan. I have lived more years outside Quebec than in Quebec. How am I supposed to feel like at home in this country if the Supreme Court, the highest court in the land, does not even respect the fact that I should be able to be heard and understood by the judges sitting on that court?

[Yvon Godin, NDP, Acadie—Bathurst, NB]

We are in 2010, Madam Speaker. It is about time this issue was resolved.

Just yesterday, I had to raise the question about the judges that will be appointed in New Brunswick. They expect to have two judges who speak English only. That is what happened last time, and that is contrary to the law. There is no equality anymore. For example, should New Brunswick appoint judges who speak English only, francophones will have their own court, where proceedings will be in French, but they will have to wait a year before being able to go to court. That is not right.

Here is another example. Mr. Doucet, who pleaded cases at the Supreme Court, referred in French to Mr. St-Coeur. But this name was translated as Mr. Five O'Clock by the interpreters. Come on. This can no longer be tolerated.

[James Lunney, Conservative, Nanaimo—Alberni, BC]

Madam Speaker, with all due respect, I would like to remind my colleague, the member for Acadie—Bathurst, that unlike the Olympics, in order to be understood, it is not the speed of speech that is essential. But more practically, it is to be understood that is paramount.

To start, I would like to make something clear. On this side of the House, we have implemented a number of measures to protect and advance the issue of bilingualism in this country. I believe that languages can be used as a bridge or as a wall between peoples. In the House, these languages are often used both ways. I think that we need a lot more bridges.

After I was elected, I started studying to better communicate in French. However, I must admit that for an anglophone, it is a rather daunting task.

Today, in the House, we are debating a private members' bill from the member for Acadie—Bathurst, Bill C-232.

Bill C-232, An Act to amend the Supreme Court Act (understanding the official languages), would amend the Supreme Court Act to require that, as a condition of appointment to the Supreme Court of Canada, a candidate understand both English and French without the assistance of an interpreter.

I would like to repeat that the government is committed to enhancing the vitality of English and French linguistic minorities in Canada, and fostering the full recognition and use of both English and French in Canadian society. Let me assure everyone that we are equally committed to maintaining the highest quality of judicial appointments to ensure that our judiciary continues to enjoy the respect and confidence of all Canadians.

The Government of Canada recognizes the importance of supporting and assisting the development of official language minority communities. To that end, in June 2008, the government announced the “Roadmap for Canada's Linguistic Duality 2008-2013”, which is an unprecedented government-wide commitment with a budget of $1.1 billion based on two pillars: the participation of all in linguistic duality and support for official language minority communities in the priority sectors of health, justice, immigration, economic development, and arts and culture.

The composition of the court, including the number of judges, is established by the Supreme Court Act, which provides that at least three of the justices must come from Quebec. The recognition of the civil law tradition of the province of Quebec makes it necessary that there be representation of Quebec judges on the court reflective of the bijural traditions of Canada.

However, it is important to recognize that the court has historically also reflected the regional composition of our country. The current practice is one which is based, by statute and historical practice, on the recognition of Canadian legal pluralism, as well as the regional diversity in the appointment process.

As a matter of long-standing practice, the composition of the Supreme Court of Canada has reflected regional representation with three judges appointed from Ontario, one judge from Atlantic Canada, one judge from the Prairies, and one from British Columbia. Given its status as the final court of appeal for all Canadian jurisdictions, it is of key importance that the government be in a position to draw upon qualified jurists from all regions of the country when making appointments to the Supreme Court of Canada.

The effect of Bill C-232 would be to have linguistic considerations override the central consideration of merit by reducing the pool of otherwise highly-qualified candidates in some regions of the country where there may be fewer lawyers and judges capable of hearing a case in both official languages without the assistance of an interpreter.

To date, the government has made over 300 judicial appointments to Canadian courts. We are proud of each and every one of those appointments since they reflect the tangible embodiment of the principles of legal excellence and merit. The government will continue to make future appointments on this basis.

The overriding consideration in all judicial appointments is legal excellence and merit. Further criteria include proficiency in the law, judgment, work habits, writing and communication skills, honesty, integrity, fairness and social awareness. While bilingualism remains an important criterion considered in the nomination process, it is not, and should not be, an overriding factor in the appointment of judges to our highest court.

Our current process allows the government to take into account the bilingual capacity of candidates and to address the need for access to justice in both official languages. We are committed to ensuring that the federal judiciary's linguistic profile provides equal access to justice in either official language.

I would also point out that before making an appointment, consultations with the chief justice of the relevant court are taken into consideration to determine the court's needs, including linguistic capacity. The chief justice is well positioned to understand the needs of the communities served and to identify particular needs where vacancies arise. We also welcome the advice of any group or individuals on considerations which should be taken into account when filling current vacancies.

To ensure a rich pool of bilingual judicial candidates, the government continues to invite the French-speaking jurist associations and French-speaking communities to identify and encourage individuals, with the necessary qualifications, to apply and to share their recommendations with the Minister of Justice.

While we fully agree that linguistic ability is an important factor when a specific need is identified, merit remains the central and overriding consideration in making judicial appointments. The government is committed first and foremost to appointing the best qualified candidates. The government will continue to appoint excellent and committed candidates reflecting gender balance, cultural diversity and bilingual capacity.

The Supreme Court of Canada plays a fundamental role in our democratic society, particularly as the ultimate guardian of the values enshrined in the Canadian Charter of Rights and Freedoms. It is important that its members be jurists of great distinction and ability. For that reason, every care is taken to ensure that the best persons, by knowledge, experience and social awareness, are chosen to fill vacancies in the court.

The appointments to the Supreme Court over the past 130 years have proven to be successful in producing judges of the highest calibre for the court. Among the qualifies sought in potential candidates are outstanding intellectual capacity, superior ability in judgment writing, the capacity for innovative thinking on emerging legal issues, and sensitivity to the diverse values enshrined in the charter.

The eminent constitutional scholar, Peter Hogg, has offered the following description of the professional capacities and personal competencies of a Supreme Court of Canada judge as follows:

1. He [or she] must be able to resolve difficult legal issues, not just by virtue of technical legal skills, but also with wisdom, fairness and compassion.

2. [She] must have the energy and discipline to diligently study the materials that are filed in every appeal.

3. He must be able to maintain an open mind on every appeal until he has read all the pertinent material and heard from counsel on both sides.

4. [She] must always treat the counsel and the litigants who appear before [her] with patience and courtesy.

5. He must be able to write opinions that are well written and well reasoned.

6. [She] must be able to work cooperatively with [her] eight colleagues to help produce agreement on unanimous or majority decisions, and to do [her] share of the writing.

Canada can take pride in the quality of its judicial system and in the steps its taken to ensure its citizens have access to justice in either official language. The Supreme Court of Canada is a model of institutional bilingualism, which reflects the intent of Parliament that our national institutions be bilingual while not requiring bilingualism from each individual Canadian.

The government remains committed to ensuring quality and impartiality under the law. An important way to ensure such equality and impartiality is to continue to be guided by the principles of merit and legal excellence in the selection and appointment of judges to Canada's provincial, superior and federal courts and to the Supreme Court.

The risk of overriding merit for the sake of bilingualism is unnecessary. The goal of ensuring the rights of Canadians to be heard and understood in the language of their choice is already being fully met by the court. The court provides all of its services and communications in English and French. In addition, every individual who appears before the court is free to use either English or French in written and oral pleadings.

Ongoing language training is available to all members of the court. High quality interpretation and translation services are available during hearings before the court and all judges have the assistance of at least one or more bilingual law clerks.

The current composition requirements of the Supreme Court of Canada Act, together with the historical practice of regional representation, allows us to preserve our important commitment to legal pluralism--

[The Acting Speaker, NDP, Denise Savoie]

Order. Resuming debate, the hon. member for Madawaska—Restigouche.

[Jean-Claude D'Amours, Liberal, Madawaska—Restigouche, NB]

Madam Speaker, I am very happy to rise in the House this afternoon to express my support for Bill C-232, which was introduced by my colleague from Acadie—Bathurst.

Since I became a member of Parliament nearly six years ago, this member and I have sat together on the Standing Committee on Official Languages. We may not always see eye to eye, but we always work to the same end when it comes to bilingualism. We also promote bilingualism so that it plays an active role in Canadian society.

Today, the end is finally in sight for this bill my colleague introduced in the House, and I hope it will be passed in the near future.

My colleague from Bourassa introduced a similar bill, but it died on the order paper when the Conservative government hastily called an election in the fall of 2008.

This bill does not try to tell all Canadians that they have to be bilingual. That is not the purpose of the bill. But under this bill, all Canadians have the right to be heard in their own language in the Supreme Court. That is a huge difference. It is not imperative that all Canadians be bilingual, but we want every individual or lawyer who appears before the Supreme Court of Canada—the highest court in the country—to be able to use the language of his or her choice.

More and more, Canadians are realizing the importance of bilingualism, even though no one is required to be bilingual.

My colleague from Acadie—Bathurst named several organizations that support his bill. I will not repeat all their names, for I want to talk about something else. I would like to mention one, however, Canadian Parents for French. I say hats off to this group of anglophone parents who want to ensure that their children can receive an education in their second language. This will help them develop their bilingual skills in the areas of education, work and their social lives in general. This kind of organization or community group understands the importance of bilingualism. We must be able to continue supporting them.

Supreme Court judges sit on the highest court in the land. If someone is not satisfied with the Supreme Court ruling, we cannot tell them to plead their case to another court at a higher level. That is impossible, because that court is the highest court. Accordingly, we must provide adequate services to citizens who appear before it. To do so, we cannot forget certain things when trying a case.

For instance, my colleague from Acadie—Bathurst gets carried away now and again, but that is his nature. He uses expressions that are unique to him. In a speech, however, the expressions are just as important as the vocabulary one uses. Before a court, people speak passionately to get their point across. A judge's perception can be very different if simultaneous interpretation is used. Once again, it is not that the simultaneous interpretation is bad. On the contrary, it is an excellent service.

However, as we all can appreciate, defendants and their lawyers may talk so quickly that their way of speaking and the words they use could have completely different meanings for a francophone judge and an anglophone judge. Accordingly, judges must be able to speak and understand both official languages, so that defendants can be guaranteed that they can make themselves understood before the Supreme Court. If it does not work, at least they will have the satisfaction of knowing they took their case as far as they could.

They will have to take comfort in that fact that they were able to make their point fully without getting the impression that interpretation worked against them.

We have argued that the words used will be translated. My family name is D'Amours. It would be translated as Alove by those who can translate. That is not the same; it might be someone else's name. The purpose of this example is to show that this sort thing can make a difference when in court. I can completely change the meaning of a sentence or expression.

Bill C-232 introduced by my colleague does not require every Canadian to be bilingual and undergo training in both official languages. It provides that a citizen or lawyer will be able to plead a case before the highest court in the land in the language of their choice, knowing that the people in front of them understand what they are saying.

We are not talking about introducing a fourth, fifth, sixth or seventh language at the Supreme Court. We are talking about this country's two official languages: French and English. Both French and English-speaking people in my riding expect me to address them in their own language. People expect that much of a private member. They expect it even more when they go before the highest court in the land. They expect that they will be addressed in their own language and that the final judgment will be made on the basis of the message that was conveyed.

The Conservatives can say they are making an effort regarding the bilingualism of judges. The Supreme Court judge who replaced Justice Bastarache is bilingual, but this cannot just happen from time to time; it has to happen every time, with an emphasis on the word “every”.

I do not know why the Conservatives are against Supreme Court judges being bilingual. Very few people are against my colleague's bill. However, my colleague has realized that a number of members opposite are against the bill. We see that they are out of touch with reality.

[Royal Galipeau, Conservative, Ottawa—Orléans, ON]

My colleague is grandstanding.

[Jean-Claude D'Amours, Liberal, Madawaska—Restigouche, NB]

Madam Speaker, the Conservative member opposite may be tired of grandstanding, but he should have more respect for the matter we are discussing because it is extremely important.

[Marcel Proulx, Liberal, Hull—Aylmer, QC]

Especially coming from a francophone.

[Jean-Claude D'Amours, Liberal, Madawaska—Restigouche, NB]

And a francophone from outside Quebec no less, who should understand that francophones outside Quebec are also entitled to be served in their language, especially in the highest court in the land.

I am getting worked up, which might make things more difficult for the interpreters. It is insulting to hear such comments. We have to keep fighting to make the Conservatives understand the reality of things.

Bill C-232 introduced by the hon. member for Acadie—Bathurst, requiring Supreme Court judges to be bilingual, is a good move for a good cause.

[Richard Nadeau, Bloc, Gatineau, QC]

Madam Speaker, I will be speaking today about Bill C-232, An Act to amend the Supreme Court Act (understanding the official languages).

The Bloc Québécois supports the principle of Bill C-232 for the following reasons.

This bill seeks to make the understanding of French and English without the assistance of an interpreter a requirement for judges appointed to the Supreme Court. The Official Languages Act provides that English and French have equality of status and use. It is the right of any citizen to use French or English before Canada's courts, based on fundamental linguistic rights and the Official Languages Act, which already recognizes the importance of being understood without the assistance of an interpreter before federal tribunals such as the Tax Court of Canada, the Federal Court and the Federal Court of Appeal. Furthermore, simultaneous translation can create problems because it does not allow adequate reaction time to interrupt someone, to ask questions, whether for the justice, the lawyers or even the individuals subject to trial who have a right to be able to understand all the nuances and subtleties of each language

For all these reasons, we support this bill.

The Constitution and the Official Languages Act state that English and French are the official languages, and that they have equality of status and equal rights and privileges as to their use in all institutions of the Parliament and the Government of Canada. Under the Constitution and the Official Languages Act, there is full and equal access in both languages to Parliament, to the laws of Canada and to courts.

The Official Languages Act provides the details and conditions for access to the courts in both official languages. Under the law, federal courts other than the Supreme Court of Canada—at this time—have the duty to ensure that any officer who hears proceedings: is able to understand English without the assistance of an interpreter, if English is the language chosen by the parties for the proceedings; is able to understand French without the assistance of an interpreter, if French is the language chosen by the parties for the proceedings; is able to understand both languages without the assistance of an interpreter, if both English and French are the languages chosen by the parties for the proceedings.

As recognized by the Fédération des associations de juristes d'expression française de common law, a member of the Fédération des communautés francophones et acadienne du Canada, Canada's Official Languages Act recognizes the importance of being understood before federal tribunals without the assistance of an interpreter. The same law should apply to the Supreme Court of Canada. Ironically, the Officially Languages Act currently excludes the Supreme Court from these conditions, even though it is the highest court in the country.

The Bloc Québécois thinks that this should change, which is why it supports Bill C-232, currently before the House.

We keep hearing that Canada is our country. But we can appear before a Supreme Court judge and they are not required to understand French, our language. This would not happen if Quebec were a sovereign nation. This is one of the main issues.

The original bill, introduced in the 39th Parliament, which required Supreme Court judges to understand both official languages, got a number of reactions and received considerable support, in particular, the support of the Quebec National Assembly. On May 21, 2008, all the members present at the Quebec National Assembly unanimously adopted a motion that stated:

That the National Assembly of Québec affirm that French language proficiency is a prerequisite and essential condition for the appointment of Supreme Court of Canada judges.

The Premier of Quebec said:

Knowledge of French is important, very important. It is not a choice. And the message we are sending today to the federal government is that it is not optional—

He added that this motion was a “requirement”.

To know a language is to know a culture, a reality. And those who are called on to interpret that reality and make decisions that will have a very important impact on our lives have to know that reality through our language.

—open federalism must ensure that judges appointed to the Supreme Court by Ottawa know Canada's two official languages.

The Standing Committee on Official Languages also looked at the issue of comprehension of the two official languages by Supreme Court judges during the 39th Parliament.

In its fourth report, which was released in May 2008—I was there—it “recommends that the government ensure that the judges that they appoint to the Supreme Court are bilingual”, in other words, that they speak French and English.

I should note that the Conservative members of the Standing Committee on Official Languages refused to support this motion, which was similar to Quebec's motion. That is deplorable. Some of those Conservatives were Quebec francophones who renounced their own language. And that is terrible.

The Canadian Bar Association decided to take a stand in favour of requiring that future Supreme Court judges be bilingual. The association supports a merit-based process for appointing judges, but believes that bilingualism should be one of the selection criteria.

In May 2009, Commissioner of Official Languages Graham Fraser came to testify before the Standing Committee on Official Languages, which was then looking at the issue of access to justice. I will quote from what he said:

Every Canadian’s right to use English or French in Canadian courts is one of the basic language rights set out in our constitutional framework.

To ensure that all litigants have true access to the superior courts in the official language of their choice, it is essential that these courts have a sufficient number of bilingual judges at their disposal. The appointment process must therefore ensure the bilingual capacity of superior courts. Otherwise, access to justice in both official languages is compromised...

To date, the federal government’s responses to the recommendations of my predecessors and the House of Commons and Senate committees have been timid and largely inadequate.

...

On the eve of the 40th anniversary of the Official Languages Act, it seems to me that knowledge of both official languages should be one of the qualifications sought for judges of Canada’s highest court. Setting such a standard would prove to all Canadians that the Government of Canada is committed to linguistic duality. I find it essential that an institution as important as the Supreme Court of Canada not only be composed of judges with exceptional legal skills, but also reflect our values and our Canadian identity as a bijural and bilingual country.

Access to justice is one of the cornerstones of our judicial system. The insufficient bilingual capacity of the superior courts and courts of appeal of the provinces and territories means that a significant segment of the Canadian population is being denied the right to access justice in the official language of its choice.

...A review of the appointment process is essential to ensuring equal access to justice in both official languages.

[Jean Crowder, NDP, Nanaimo—Cowichan, BC]

Madam Speaker, I am very pleased to speak in support of the member for Acadie—Bathurst's bill, Bill C-232, which is very important for the House to debate. I also acknowledge the tireless work that the member for Acadie—Bathurst does in defence of official languages and for being such an excellent watchdog when the government fails in its duty to uphold the official languages of this country.

I am an anglophone from western Canada. It is interesting that two members from western Canada are speaking about the bill today. One is opposed, but I am very much in favour.

I will talk a bit about why it is so important. First, the legislation provides a clear signal for all levels of the judiciary in our country. When legislation is introduced in Parliament, it comes to us in both official languages. We know it is absolutely our right in the House to be heard in either language of our choice.

As you rightly pointed out, Madam Speaker, sometimes we provide some challenges for the interpreters here. Whatever language we choose to speak, sometimes our passion about a particular subject will have speak very quickly and it does not allow the interpreters to keep up with the speed of our speech. That deprives the members, who listen in that other language of their choice, of their right to hear what the member has said.

Many of us in the House have had experiences where, either because of the noise in the House or the rapidity of our speech, we have been unable to have our words heard by members who listen in another language. That very challenge is why it is incumbent, when we talk about Supreme Court justices, that the justices are fully fluent in both of our Canadian languages, English and French.

People who have their cases heard before court in whatever language of their choice should have a comfort level that the justices are able to understand in whatever language the case is presented. It seems fundamental to me, and Canadians agree, that we do have two official languages.

I want to digress just a little for a moment and talk about why this is so important. By taking it out of the realm of talking about English and French and putting it into another realm, I think it may be easier for people to understand why it is absolutely essential that we honour the Official Languages Act and recognize that people have the right to be served in their language of choice at all levels.

It is probably no surprise to many members of the House that I will talk about indigenous languages. Members may not be aware that in 1989 the Assembly of First Nations declared March 31 as National Aboriginal Languages Day. I will use some other people's words to talk about why that is so important.

Last year in the Yukon legislative assembly, Mr. Cardiff rose in recognition of National Aboriginal Languages Day. He said:

It is said that language is culture. A person's culture is expressed most clearly in the process of their language use. Thinking patterns, values and actions are all underlaid by language expression. Daily use of the language means that the culture is strong and that it is passed on.

Mr. Edzerza's mother language is Tahltan, but he unfortunately grew up without the ability to speak it. He talked about the impact of his language and culture on growing up. He said:

—the Council of Yukon First Nations did a Yukon regional health survey, called Reclaiming the Well-being of Our People. The survey results showed 87 percent of those surveyed said loss of their language had a very negative impact on their lives today, and 91 percent of youth and children rate that knowing their traditional language is very important to them.

He goes on to say:

In 1994, Elder Percy Henry gave a powerful message to all people about language when he said...“A car with no gas can't go. A tree with no branches can't grow. So as native people who have lost their language, part of us is gone. Your spirit is strong; your fire inside of you is strong; you have it all when you speak your own language.”

That speaks very powerfully in our country. Both francophones and anglophones, if they should end up in a Supreme Court justice situation, need to be understood.

Many of the nuances being presented in an argument, even if it is not around a justice issue, can be lost in interpretation.

In speaking about the importance of language, I want to refer to the comments of an expert in the area. Graham Fraser, the Commissioner of Official Languages, said:

--it seems to me that the knowledge of both official languages should be one of the qualifications sought for judges of Canada's highest court. Setting such a standard would prove to all Canadians that the Government of Canada is committed to linguistic duality. I find it essential that an institution as important as the Supreme Court of Canada not only be composed of judges with exceptional legal skills, but also reflect our values and our Canadian identity as a bijural and bilingual country.

We have heard some arguments in this House, although not many, that appointments to the Supreme Court bench should be based on merit.

Where I live in Nanaimo--Cowichan, there is a very strong francophonie association. French immersion courses are oversubscribed. People on the west coast are very interested in being fluently bilingual, being able to speak both English and French, because that is what our country is about.

I would argue that by establishing that Supreme Court justices will be bilingual, we will be sending a very clear message that when people enter law school and have some ambitions to being appointed to the bench, they will take the responsibility to learn both English and French in order to be considered for that kind of appointment.

Graham Fraser indicated:

If Parliament were to pass this bill, it would send a powerful message to Canada's law schools that mastering both official languages is a prerequisite for full mastery of the law, and for qualification for the most important and prestigious positions in the Canadian judiciary.

Canadians are very intelligent people. If bilingualism is a job requirement to be a Supreme Court justice, they will understand that they must be fluent in both English and French. I encourage all members of this House to support the member for Acadie—Bathurst's very fine piece of legislation and vote yes on it.

[The Acting Speaker, NDP, Denise Savoie]

The hon. member will have two minutes left when this bill returns.

The time provided for the consideration of private members' business has now expired, and the order is dropped to the bottom of the order of precedence on the order paper.

It being 2:30 p.m., this House stands adjourned until Monday next at 11:00 a.m., pursuant to Standing Order 24(1).

(The House adjourned at 2:30 p.m.)