:
Good morning, everyone. There are some new faces, so I'll explain that the Quebec Community Groups Network is a not-for-profit organization that represents Canada's English linguistic minority communities, which we refer to collectively as the English-speaking community in Quebec. There are just over one million Canadians in our community, and as I said, our official language minority community is located in Quebec.
Good morning, Mr. Nater, Mr. Donnelly, and members of the House of Commons Standing Committee on Official Languages. I'm sorry, I didn't know wasn't going to be here.
We're very pleased to be here today to provide evidence in the committee's study of the full implementation of the Official Languages Act in the Canadian justice system. We're also happy to be joined at the table by the Association of English speaking Jurists of Quebec. I'll be very brief in our opening remarks to allow Michael Bergman to introduce the association and its future plans.
Our community is very excited about the promise of an organic access-to-justice capacity. Please note that the QCGN has submitted a detailed brief that provides commentary on the topics under the committee's consideration. I'll outline the brief's main points now and will look forward to answering your questions.
Just to touch on a few points on the Supreme Court of Canada judicial appointment process, the QCGN supports a process for appointing Supreme Court of Canada justices that is transparent, inclusive, and accountable to Canadians. Incidentally, we have also supported, and will continue to support, legislation that would make functional bilingualism without the aid of an interpreter a requirement for appointment to the Supreme Court of Canada.
There are two principal reasons that we support a bilingual capacity in all Canadian courts, and a bilingual superior court and court of appeal judiciary. First, where rights exist, there must be a systemic capacity for justices to hear cases and render decisions in both official languages. Second, the language skills of judges at this level must be sufficient to ensure stare decisis in the evolution of Canadian law. Maître Bergman can expand on this point.
We have three thoughts on access to justice. First, possessing rights and having a bilingual judiciary is of limited value if the infrastructure surrounding access to justice is not able to operate to provide services in both official languages. Second, we need a shared definition for access to justice, especially when discussing and developing evidence-based public policy. Finally, we need stable programming seed money from Justice Canada to help develop the association.
We are very concerned about the application of the Official Languages Act in Canada's correctional system. A recent visit to the Correctional Service of Canada's federal training centre in Laval was troubling. We witnessed prima facie violations of the act that we have every reason to believe are systemic in nature and therefore likely affecting English and French minority inmates in other institutions. Our concerns are detailed in our brief and may warrant a separate visit to the committee.
It is now my pleasure to introduce Maître Michael Bergman from the Association of English speaking Jurists of Quebec.
:
Thank you very much, Stephen.
Thank you for the opportunity to address the committee this morning.
I am a firm believer that an organization that has more than three words in its name is extremely important. Therefore, you have two very important witnesses before you.
The association first came to life in August 2016. We are a johnny-come-lately, as they say en bon anglais. Our colleagues in the rest of the country, lawyers and jurists of the francophone language, have long had associations to advocate, lobby, and research on behalf of their communities. The English-speaking community in Quebec has only recently become organized in this regard, partly because of the nature of that community.
Colleagues of mine, a number of lawyers and I, co-founded the association less than one year ago. We recognized that there's a serious problem with access to justice in the English language in Quebec; namely, it is in decline, exponentially so as the years pass, and will continue to decline. The average English-speaking citizen in Quebec has more and more difficulty interfacing with the system at all levels, including federal, in the English language. If this is not abated, if ways are not found to improve access to justice in English, then the system of English language representation and the ability of the citizen to speak in English before any instance administrative or tribunal in Quebec will gradually fade away.
This extends to other issues, too. Our Court of Appeal in Quebec is renowned for its judgments in constitutional law, human rights, administrative law, and diverse areas of the law, but in the rest of Canada, very few lawyers or judges have any idea what the Court of Appeal has said, because other than 6% of the judgments of the Court of Appeal, all of the rest, 94%, are in the French language. There are not the funds or the translation services to render these judgments into official English. So you do have anomalies where a court of appeal in another province says x when the Court of Appeal in Quebec already said y. That is not good for this country.
You will notice that the association did not submit a brief to you for this morning. That is unfortunate, but not an accident. The reason is simple. Having just started, we are a group of volunteers. We are lawyers. We are practising lawyers. We've only recently, in January of this year, received some program funding, $77,000, from Justice Canada. Most of that is for preliminary research. Research is important. Research gives us empirical data. It gives us facts, the ability to advocate based on the truth. We have no core funding. We can't hire an executive director. We have no permanent structure. We need that desperately. Funding for the association, and any group of our nature, needs a core funding program. This is true not only in Quebec, but in every single part of this great country. Absent that, we are dedicated volunteers, but there are only so many hours in the day, as I think members of Parliament here know all too well.
What is the consequence of the decline of the use of English in access to the justice system throughout Quebec? This decline is pernicious. It will have important structural effects in the future over generational time. If English goes into decline as an official minority language in the justice system in Quebec, sooner or later the rest of the country is going to say that if one of the pillars of our duality is now in decline, what about the other pillar, francophones outside Quebec? Slowly we will inadvertently, unfortunately and tragically evolve into a country where justice is rendered in Quebec in French and the rest of the country in English.
This is wrong. This must be stopped. We need more legislation. We need funding. The federal government, the Parliament of Canada, has an important role in this. It is not simply symbolic. It's implementing programs and legislation that recognize that in modern society, in the 21st century, every citizen has the important right, the liberty, the freedom, the individuality, to approach justice in his or her mother official tongue. Failing that, we fail our companions and colleagues throughout this country.
I'm certainly open to questions. Five minutes is a short time to try to get in a lot of words and a lot of important ideas, but as I said, we have more than three words in our name. You noticed I said only “association”. I didn't say “Association of English speaking Jurists of Quebec Inc.”
Thank you very much.
:
I believe that, but let's say that right now and since Confederation in 1867 we've had one-half of those rights. Section 133 of the Constitution Act, the original BNA, says that anybody can address a court in English or French in Quebec or at the federal level, but that doesn't mean that the listener has to understand what the person is saying. You could literally have, and I've seen this actually in some cases in Quebec, somebody address the court in English and the judge not be able to address the litigant in English, and he or she addresses the litigant in French.
Somebody has to do the interpretation, the translation. Typically and in most instances, it would be the lawyer. The judge would look at me and say,
[Translation]
“Mr. Bergman, could you interpret my words for your client?”
[English]
All of a sudden, I am the lawyer, and I am the interpreter. Not only that, in the meantime the trial is continuing, and so I need to listen to what is happening. My brain is functioning on three levels at once. Now, maybe I can chew gum and walk—that's two at the same time—but three is extremely difficult. What happens, at least in my experience, is that the translation suffers, and then I need to say to the judge,
[Translation]
“Your Honour, I need a break for a few minutes to summarize what you said for my client.”
[English]
In the meantime, my client is sitting there, and rightly or wrongly, the client does not understand French or understands it poorly and is looking like a deer in the headlights, wondering, “What's happening to my case? I don't understand. Is this good or is this bad? Are we winning, or are we losing?”
That is not right.
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Thank you. I will exercise my right to do that.
This seems to be a fairly simple question to answer. There is legislation requiring federally appointed judges to have reached a certain level of bilingualism. You give them a language test and it's part of the process.
Getting back to what Mr. Donnelly said earlier, you're focusing on the judges. You're going to fix the judges, and every judge in Canada is going to be bilingual. Imagine every judge in Canada being bilingual. It doesn't matter, because the clerk isn't bilingual, the people around the judge aren't bilingual, and the decisions of the courts of appeal aren't being translated into both languages.
[Translation]
It's not only the judges, but the system.
[English]
It's the system around the judge. That's the level this committee might want to consider.
I will just bring up that Justice Canada right now, for example, funds linguistic training for provincially appointed judges. Therefore, there is an appetite in the provinces, including in Quebec, for the federal government to support linguistic training for areas of provincial jurisdiction, even in the provincial courts. The hook is there already. It's a matter of expanding that to include the people who support the courts.
Thank you very much, gentlemen, for your presentations, which I found quite insightful. You gave very specific examples, and I must admit I quite appreciated that.
You said earlier that people expect those who are bilingual to speak the language of the majority. That's something I've often noticed in the Acadie region. Given that we, Acadians, speak both languages, the expectation is that we don't need to be served in French. The reality is that we do need French-language services, and we are entitled to ask for them. That is our right.
I also appreciated what you said about interpretation. Personally, I would quite enjoy arguing my case and interpreting what was said; honestly, it would be easier for me. I say that with tongue in cheek.
The point I want to make is the cultural influence languages have in society. That is what worries me. What I mean is that, if an argument or judgment is not translated into the other language, it diminishes the cultural influence of that language in society, in my view, and that worries me a lot.
Could you elaborate on that?
:
Ladies and gentlemen, my presentation will focus on access to justice in both official languages. I will speak to the practical side of access to justice and leave the theory to my colleague. Specifically, I will address access to justice in French in Manitoba.
I am the director of Infojustice Manitoba, a legal resource centre in Winnipeg. Infojustice Manitoba is the initiative of the Société franco-manitobaine, a not-for-profit organization that advocates for the Franco-Manitoban community, looking after its well-being and lobbying for full respect of its rights. Infojustice Manitoba was established to promote access to justice in French in Manitoba.
Infojustice Manitoba is funded through the access to justice in both official languages support fund. In 2013, the federal government incorporated two pillars into the fund, information and training. Infojustice Manitoba is funded through the information pillar because we work to raise awareness and promote information and training in relation to language rights and access to justice in Manitoba.
Legal resource centres are part of a national initiative to promote access to justice in both official languages. Canada has a number of other legal resource centres, in Nova Scotia, Ontario, Saskatchewan and Alberta. Depending on the province's linguistic landscape, some legal resource centres are designated as bilingual, while others provide service mainly in French. Since Manitoba has anglophone legal resource centres, Infojustice Manitoba provides service solely in French.
As you know, despite existing statutory and constitutional obligations, Manitoba, like other provinces and territories, still falls short when it comes to ensuring access to the courts and legal information in French. That is why Infojustice Manitoba strives to ensure that legal information available in English is equally accessible in French.
A significant proportion of Manitoba's population is aging, while another sizable segment is made up of newcomers to Canada. These individuals have special needs when it comes to French-language legal services. Manitoba's francophone population is made up of mainly two groups: seniors who are usually more comfortable speaking French and immigrants who are not fluent in English.
Legal aid Manitoba provides bilingual service, but most of the individuals who have a legal issue are not eligible. Consequently, they have to represent themselves in court and deal with their legal issue with little to no French-language information. In the absence of French-language service, people have to access services in English or rely on a third party to help them navigate the legal system in English.
It is important to note that access to justice is more than just being able to speak French in court; most of the time, it involves being able to obtain advice and information in the official language of your choice. Most cases do not go to court and are settled thanks to legal advice or information provided to litigants. It is therefore essential that individuals be able to obtain legal advice and information in French if they are to have access to justice in French.
Infojustice Manitoba provides French-language services not just to Franco-Manitobans, but also to those who choose to speak French. Infojustice Manitoba works with a number of English-language legal resource centres in the province, including the Legal Help Centre and the Community Legal Education Association. Through these collaborative efforts, Infojustice Manitoba is able to reach all Manitobans and truly promote the use of French in Manitoba's legal system.
Despite the creation of a French-language legal resource centre, a serious imbalance still exists in Manitoba, in terms of legal information available in French versus English. We are therefore calling on the federal government to make a commitment in the next official languages action plan to support projects that promote French-language legal information in the provinces and territories.
Thank you. I would be happy to answer any questions you have.
I would like to thank the committee for having me today and giving me the opportunity to address bilingualism in Canada's justice system. I had prepared a presentation, but after listening to the previous witnesses, I decided to take an a cappella approach. In other words, I am going to proceed without accompaniment, straying from my presentation to address some of the issues raised by the group representing Quebec's jurists.
From the outset, I want to debunk the myth that bilingualism in the justice system exists on a nationwide level. It is true that section 18 of the Canadian Charter of Rights and Freedoms recognizes both language versions of Canadian statutes as equally authoritative. It is also true that every individual has the right to access justice in the official language of their choice when dealing with any court of Canada. Another truth is that section 133 of the Constitution Act, 1867, guarantees the same thing, as does section 23 of the Manitoba Act, 1870. All of these provisions recognize the right to a bilingual justice system, except that, at times, the Canadian legal system operates as though only one official language existed. That is the case in Quebec, as the committee heard earlier, as well as in a number of other provinces. In other words, bilingualism does not reside in our justice system, but, rather, a sort of linguistic duality does.
Many lawyers and judges interpret federal statutes passed in both official languages simply by reading only one language version, meaning, the English version in certain provinces. Many judges who interpret federal statutes and even provincial ones, in New Brunswick's case, can understand them in only one language. They never consult the other version, the version of the statute passed in French. Any jurist operating in the context of judicial bilingualism knows full well, however, that both versions of the same statute are very often not consistent and that, in order to understand a statute with two equally authoritative language versions, being able to read and compare the two is paramount.
That is something I often find troubling when analyzing how certain provisions were interpreted on the basis of only one language version. At some point, we run the risk of contributing to a legal movement where the law does not say the same thing and is not applied uniformly, depending on the language version referred to.
That is why I think it is important to appoint more bilingual judges, not just in Quebec, but also across the country.
Equally important is educating those in the legal community on judicial bilingualism, beginning with law faculties. That is necessary in order to ensure that participants in Canada's justice system truly have access to judicial bilingualism and the ability to express themselves in the official language of their choice without the risk of being put at a disadvantage because of that language choice.
Moreover, much of the discussion earlier focused on the translation of decisions. I wholeheartedly agree with what my colleagues said about the need to have more Canadian court decisions translated into the other official language. On that front, as well, however, the importance of two equally authoritative language versions comes into play: when a decision is translated, it is quite possible to wind up with a translated text that does not entirely match the original.
I just wrote a book on language rights in New Brunswick, and I included clear examples of court decisions where the English and French versions did not match. In order to realize that a discrepancy exists, however, having the skills to read and understand both language versions is essential.
When you're trying to achieve bilingualism across the justice system, it's worrisome for the interpretation of the law to rely on a language version of a decision that does not fully match the original decision.
It is imperative that we better educate lawyers, judges, and all those who work in Canada's court administration system on the reality of judicial bilingualism in Canada, beginning, as I said, with the country's faculties of law.
That brings me to my next point, the bilingual proficiency of justices on the Supreme Court of Canada.
I am extremely pleased with the steps the government is taking to ensure that judges appointed to the Supreme Court going forward are functionally bilingual. Like my fellow witnesses who spoke earlier, I would go further, however. I think it's essential to set out the requirement in legislation.
On many occasions, I, myself, have argued cases in French before Supreme Court justices who were not able to follow the discussion. When a unilingual English-speaking judge listens to a submission in French, when the bench and the lawyer engage in a quick exchange, when French technical jargon is used, and when the parties speak very quickly—as I'm probably doing now—I can appreciate how difficult it becomes for interpreters to follow the discussion.
The situation is not the same in Canada's Parliament. There, parliamentarians have access to interpreters, and even though they may leave out or misinterpret something an MP or minister said, the impact is probably not as serious as it is in court, where every single word matters.
I had trouble sleeping one night, so I turned on the TV and started watching CPAC, which was airing legal proceedings. As I listened to the simultaneous interpretation of counsel's submission, I thought to myself that the lawyer was in trouble, because the interpreter frequently used the expression “cannot follow”. In other words, the interpreter wasn't able to follow the proceedings or was not necessarily translating what the lawyer was saying. I realized that I was that lawyer. When things like that happen, you ask yourself some serious questions and wonder whether you are doing your client a disservice by arguing their case in their language before a judge who cannot understand the language being used without the assistance of an interpreter.
For that reason, I strongly support the idea of amending the Official Languages Act by removing the provision in section 16 that exempts Supreme Court justices from the language proficiency requirement. The Official Languages Act requires that all federal court judges be able to understand the proceedings in the official language chosen by the parties without the assistance of an interpreter. The same requirement applies to New Brunswick court judges. I believe the exception for Supreme Court justices should be eliminated.
What's more, a provision should be added to the Supreme Court Act making bilingual proficiency a standard requirement for judges, given that they will have to interpret statutes with two equally authoritative language versions. I don't think there is any risk of such a provision posing a constitutional problem. That is completely different from the situation in the Judge Nadon case, which dealt with the makeup of the bench. For that matter, I would be willing to answer any questions you have on the subject. In this situation, we are not dealing with the composition of the Supreme Court but, rather, with the language proficiency of its judges.
I agree with what my colleague Sébastien Grammond told the committee back in March, at a meeting I was also supposed to appear at. He indicated that it would be advisable for the federal government to refer the issue to the Supreme Court of Canada to dispel any doubts.
I will conclude my remarks with a few words about French-speaking jurist associations. My fellow witness talked about legal information, and earlier, Mr. Bergman was discussing the funding of such associations. New Brunswick's association of French-speaking jurists will soon submit, to the committee, a brief explaining the funding problems these organizations currently face. The association filed a complaint, under part VII of the Official Languages Act, with the Commissioner of Official Languages, who sided with the association. The commissioner's office asked the Department of Justice to meet with the association's representatives to discuss its core funding, a request the department has thus far ignored.
I think I will stop there and leave it to committee members to ask any questions they have about what I have said.
Thank you.
According to the government, to be considered a bilingual judge, you have to be functionally bilingual. According to the government's definition, a functionally bilingual judge can understand arguments in the other language, but does not need to speak it.
Personally I think that there is a fundamental difference between someone who is functionally bilingual, and someone who is perfectly bilingual.
Is it that much harder to find perfectly bilingual judges in the anglophone provinces of Canada than to find functionally bilingual judges, that is to say judges who can speak English and French in a functional way? Do you see a dichotomy there?
You just explained that there is an issue because judgments are not exactly the same in English and French, nor are they always translated, understood or interpreted in the same way. We must also take into consideration the oral interventions that take place at the outset between the parties, the lawyers and the judge.
I have trouble understanding why we want the law to require that judges be functionally bilingual and not perfectly bilingual.
Do you also see a problem there?
:
Absolutely; I see a problem.
I also think that one of the issues currently is that a judge's linguistic competence is not really evaluated before his nomination. It is, rather, a self-assessment. I could talk to you about a situation that occurred recently in New Brunswick, but I won't go any further.
I do believe that a justice of the Supreme Court of Canada should be able to understand the exchanges, participate in discussions with the lawyers, and read the documents in both languages. So his or her linguistic capacities need to be evaluated. It is not enough to be conversationally bilingual. The judge must be sufficiently bilingual to understand a legal debate without the help of translation or simultaneous interpretation. I think that that level of bilingualism needs to be evaluated.
Some have said that it is difficult to find judges that satisfy that requirement in the different provinces. However, I have argued cases in several Canadian provinces, and I was often surprised to realize that in provinces where people believed there were none, there were judges who had that capacity. Take for instance the recently appointed Judge Rowe, who is from Newfoundland and Labrador. At a certain point, several people told us that it was impossible to find a judge or a lawyer who was perfectly bilingual in that province. And yet we found one, Judge Rowe.
And so it is possible, but training has to start very early. That is why I referred to law faculties.
Ms. Pellerin, Mr. Doucet, thank you for being here, for sharing your knowledge, and for providing us with more information about the challenges the justice system faces.
I would like to take advantage of this public forum to congratulate you. Mr. Bergman was telling us earlier about his volunteer work. What I want to say is addressed to all of you as well. All of the pro bono work you do for the good of society and your respective communities, without expecting anything in return, is worth more than gold or diamonds. Thank you very much.
I have a question for Mr. Doucet.
Mr. Bergman, who testified this morning, told us about a new organization in Quebec, the Association of English-speaking Jurists of Quebec. Acadians in New Brunswick have a similar organization, the Association des juristes d'expression française du Nouveau-Brunswick, the AJEFNB. Mr. Doucet, I think you are the founder, or one of the founders. If I remember correctly, the association has existed for more than 25 years.
We were talking about funding. The Manitoba association receives funding to provide information, but for the Association des juristes d'expression française, what are the challenges in Canada, generally speaking?
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It could be both. Not only am I talking about the judgment, but I'm also talking about the legislation. Even if you have legislation in both official languages it doesn't mean that both versions say exactly the same thing. It is the same thing with the translation of a decision.
If we're saying that both versions of laws have equal authority, people must be able to read both versions. And if there is a divergence between both versions, they must be able to reconcile both versions. The Supreme Court of Canada is giving us a process to do that.
We have the same problem with decisions that are translated either into French or into English. Translators do a very good job, but sometimes something might be lost in the translation. I have examples of them in the books I've written, where the French version and the English version do not say exactly the same thing, but to be able to notice that, you have to read both versions. If you're not able to read both versions, you won't see it. There's a possibility of an interpretation later on, depending on which version you're using, an interpretation of the law that might be different if you proceed in French or if you proceed in English.
There are even examples of decisions of the Supreme Court of Canada where both versions don't say exactly the same thing. If we're talking about equality in the judiciary, it becomes more and more important for lawyers and judges to understand that if you're using federal law, or using laws in New Brunswick, Manitoba, Quebec, or even in Ontario, that you be able to read both versions to make sure you're giving complete legal advice to your client and not only half.