With me today are Pascale Giguère, the director and general counsel for the Legal Affairs Branch, Mary Donaghy, the assistant commissioner for the Policy and Communications Branch, and Jean Marleau, the acting assistant commissioner for the Compliance Assurance Branch.
[English]
Good morning, Mr. Chair and honourable members of the committee.
Thank you for inviting me to speak to you today as Interim Commissioner of Official Languages. I would like to take this opportunity to remind you that my team and I are always available to answer questions from parliamentarians, even during this time of transition for our office.
[Translation]
Your study on access to justice is of the utmost importance, and I would like to thank you for allowing me to share with you two important issues on this matter.
My comments concern the posting of Federal Court decisions and access to the justice system.
[English]
On the matter of Federal Court decisions, former commissioner Graham Fraser tabled a report to Parliament last fall on his investigation into the Courts Administration Service. This report followed his April 2016 report to the Governor in Council.
The problem concerns the posting of decisions on Federal Court websites, which is often not done in both official languages at the same time. In fact, it can take many months for a decision to be published in the other official language.
[Translation]
We started our investigation into this situation in 2007. Ten years later, complaints are still coming in. The Courts Administration Service is of the opinion that the publication of decisions on websites falls under Part III of the Official Languages Act, which governs the administration of justice.
The institution maintains that Part IV of the act, which sets out federal institutions' language obligations in terms of communications with the public—which we consider to include Internet communications—does not apply to Federal Court decisions because of the principle of judicial independence.
[English]
While we recognize the importance of this principle, we believe that publishing Federal Court rulings falls under part IV of the act. We also believe that it is the public's right to have access to justice in both official languages. That is directly compromised when rulings of federal courts are not published simultaneously on their websites in both official languages.
Numerous discussions with the Courts Administration Service have failed to resolve the dispute. Our 2015 final investigation report concluded that the Courts Administration Service was still infringing the Official Languages Act.
[Translation]
Because the institution did not act on his recommendation, then-Commissioner Fraser submitted a report to the Governor-in-Council and recommended that this ambiguity be resolved, either by tabling a bill or by applying for a reference to the Supreme Court of Canada.
Following the 's decision not to respond to this recommendation, Commissioner Fraser tabled a report to Parliament.
To resolve this impasse, the legislation needs to be clarified. I hope that the committee will see fit to recommend that the government draft a bill to clarify the language obligations of the federal courts regarding the posting of decisions.
[English]
Access to justice is a fundamental right for everyone. Despite the provisions of the Criminal Code that recognize the right of all Canadians to be heard in the official language of their choice anywhere in the country, approximately two million Canadians from official language minority communities are running into problems trying to exercise this fundamental right. We are seeing the same situation in civil proceedings, where provincial or territorial laws recognize the right to be heard in either official language to various degrees.
[Translation]
Many of the obstacles are described in the 2013 study on access to justice that former Commissioner Fraser published in cooperation with his provincial counterparts in Ontario and New Brunswick. The study looked at the appointment process of superior court judges and the language training provided to them. It concluded that the process does not guarantee a sufficient number of judges with the language skills needed to hear Canadians in the official language of the linguistic minority without delays or additional costs.
This conclusion was based on two main findings.
[English]
First, there is no coordinated action to determine the needs of superior courts in terms of bilingual capacity or to ensure that a sufficient number of bilingual judges is appointed to these courts.
Second, there is no objective evaluation of the language skills of superior court judiciary candidates. Until recently, the only criterion for the superior court judiciary was a single question on the application form asking candidates whether they were able to conduct a trial in either official language. This self-evaluation was never verified objectively.
[Translation]
The study presented 10 recommendations to rectify the situation and stressed the importance of establishing a coordinated approach by the federal Minister of Justice, the provincial and territorial ministers of justice, and the chief justices.
The previous federal government did not address the recommendations of our study.
However, during the last year, we have noticed some progress. I would like to draw your attention to the changes the federal government made in October 2016 to the appointment process of superior court judges.
[English]
The new nomination form now includes more specific questions on candidates' language skills, and the new process includes the option of evaluating candidates' language skills. When the new process is fully implemented, the will have access to the results of these evaluations when discussing a court's needs with a chief justice or when making recommendations for appointments to the bench. These changes are concrete measures that address some of the recommendations issued by Commissioner Fraser in his study.
[Translation]
This recent progress reflects an increasing awareness in the legal community with regard to access to justice in both official languages. However, there are still many other issues to overcome before we can say that we have achieved real equality of access.
Thank you.
[English]
I am ready to answer any questions you may have.
I would like to thank the witnesses very much for being here this morning.
In the current study, we are dealing with two extremely important things. Unfortunately, I have the impression that there is one element that tends to take precedence over the other. I am talking about the appointment of bilingual judges to the Supreme Court. I believe that the issue of access to justice in both official languages in Canada is as important as, if not more so, than the appointment of bilingual judges. Perhaps I should say that the two subjects are of equal importance. The matter of appointing judges is often raised, while in reality the biggest work to be done is to make justice accessible in official language minority communities. My first set of questions will touch on that, because I really think we need to get a little more involved.
So far, the witnesses we have received felt that one of the major issues was financial resources. Indeed, there is not enough money to have common law and civil law decisions translated and made available in all the provinces. Such translations would make it possible, for example, to make case law accessible to everyone, across Canada.
We talk about having equal access to justice in both official languages in Canada, but we are far, far from it. Has there been an analysis or a study that could induce the government or governments to inject the necessary funds? Has anyone assessed how much money would be needed to make a practically instantaneous translation of the judgments so that they are accessible across the profession?
I would like to thank the witnesses for being here.
I'm a lawyer, and I live in a minority community, in Sudbury, Northern Ontario. I studied at the University of Ottawa in French. So this is of particular interest to me.
In your comments, you said that the nomination form for judges had changed. I found that the questions were clearer. I think the minister will be able to make a much more informed decision than before in determining whether they have the necessary qualifications.
Aside from that, there are challenges to overcome. On page 5 of your presentation, it says: “... there is no coordinated action to determine the needs of superior courts in terms of bilingual capacity or to ensure that a sufficient number of bilingual judges are appointed to these courts.”
Could you tell us who decides which regions need bilingual judges? Take Ontario, for example. Isn't it the who says that this region needs bilingual judges. I would like to know who decides. Is it the chief justice of the court, a local group or the Department of Justice that decides which areas should have a bilingual judge?
My thanks to the witnesses for being here today and for their testimony.
Access to justice in both official languages was a very important issue for former MP Yvon Godin, who sat on this committee as an NDP representative and whom I'm replacing in that capacity. He made it his cause and worked very hard on the issue. He introduced two bills on the bilingualism of Supreme Court judges, bills that were supported by former commissioner Fraser over the years.
Right now, there is a debate about a policy the Liberals have adopted on the appointment of bilingual judges. Of course, a policy is a very welcome first step, but we would like to see the bilingualism requirement for Supreme Court judges included in a bill.
Have you heard murmurs of this debate among constitutional experts, in terms of determining whether such a requirement would be constitutional or not? Mr. Fraser, the previous commissioner of official languages, never talked about this issue. Is this an issue that your team has addressed? What solution would you propose?
Congratulations on the activity that you organized to mark the 150th anniversary of legislative and judicial bilingualism on March 5. The work you have done is very much appreciated. A number of people were there to reflect on judicial bilingualism.
When I met Mr. Fraser for the first time, I remember that he had shown me the document you referred to earlier, which he had produced with his two provincial counterparts. He told me that it was his priority and that he would like something to come of it.
You talked about it earlier when you said that there had been progress. I asked other people, but they seemed to say that the progress was rather tentative.
Basically, it's still a self-evaluation process, but instead of one question, there are four or five.
:
There are four questions instead of one. The idea is to have the option to evaluate language proficiency. That's still an option. Will that be done some day? We don't know.
It is like the big debate on GMOs right now: there is an option to indicate on the label that a product contains GMOs. However, in Canada, there is no indication on any product that it contains GMOs, but it is an option.
It's the same thing here: we say that there's an option to assess language skills. In the case of someone with university degrees in both French and English, there's already evidence of their bilingualism. That's a different story. If not, how can this self-evaluation process ensure that a person is bilingual?
That's what Mr. Fraser, the former commissioner, was telling me. So here we are with the same problem: judges who do not have the ability to provide bilingual service when they are supposed to be bilingual.
How can this process guarantee that judges are bilingual?
That brings me to the following question. Is it possible to list all the lawyers graduating from francophone or bilingual law schools and to find out how these people are distributed across the country from coast to coast?
Since 1988, many people have been studying law in French. I myself am a former student of the Faculty of Law at the Université de Moncton, which is francophone. The University of Ottawa now teaches law in French. I think even the Université de Sherbrooke teaches common law in French. I don't know all the details, but I know there has been a rapid evolution. When I was studying at the Université de Moncton, there were students from practically every province. Those students' mother tongue was English and they came to study in Moncton. That must also happen in Ottawa and elsewhere.
Historically, I can understand the apprehension and fear of the people in the west of not having judges from their area at the Supreme Court because of the bilingualism requirement. However, I find the exception to be inconsistent, since judges in other federal courts must be bilingual. After all, there are federal courts in western Canada. Why is there an exception for the Supreme Court of Canada?
Well, let's move on from the fear and apprehension.
Are you familiar with how the supposedly bilingual lawyers have been distributed since the advent of law schools in French?
So now I come to the burning question, just like on Tout le monde en parle.
No one can be against motherhood and apple pie, and I agree that the judges of the Supreme Court of Canada must be bilingual. However, in my opinion, there is a fundamental difference between a judge who is perfectly bilingual and a judge who is functionally bilingual. At the moment, the government wants to appoint judges who are functionally bilingual.
Do you distinguish between a judge who is perfectly bilingual and a judge who is functionally bilingual? If a judge is functionally bilingual, is that enough for him or her to sit on the Supreme Court of Canada?
According to the government's definition, a functionally bilingual judge is able to understand French and English but is not necessarily able to speak French and English. I stand to be corrected if that is not the case. Personally, I would not consider a judge like that to be bilingual. That's my opinion, but I would like to know yours.
:
As I see it, a person who is bilingual enough is not the same thing as a person who is perfectly bilingual. Please forgive me, Mr. Chair, but I am forced to say that repeatedly.
I understand the ambition, the objective, the dream of having a country that is fully bilingual from one end to the other. We all dream of that. We all dream of having perfectly bilingual judges, not only in the Supreme Court, but in all courts all over Canada. That would be just great. It would be great if God were bilingual too. I don't know whether He is, but we hope to find out that He is when we get up there. If so, all would be right with the world.
As you pointed out just now, this exception was created because, once, you could practically count on the fingers of two hands the number of perfectly bilingual judges from an English-speaking province. That may not quite be the reality today. Since 1988, society has evolved, and bilingualism has made strides in Canada, it must be said.
Does that reality justify our enshrining in Canadian legislation the obligation to choose a candidate who may be a little less qualified but who is bilingual? Is the legislation going to force us at some stage to choose, not a more qualified candidate, but another bilingual candidate who does not even have to be perfectly bilingual? He or she could be functionally bilingual, which could turn out not to be enough in certain cases, as you say. Do you understand what I mean?
:
Mr. Chair, members of Standing Committee on Official Languages, thank you for giving me the opportunity to present my audit report on bilingual services to the travelling public provided by the Canadian Air Transport Security Authority, CATSA, published only a few weeks ago.
CATSA is a relatively young organization. It was established as an agent crown corporation in 2002. Since then my office has conducted several exercises to help the institution understand and meet its official languages obligations.
[Translation]
In 2012, as part of an exercise regarding the language rights of the travelling public in airports, the Office of the Commissioner of Official Languages conducted observations of the Canadian Air Transport Security Authority at eight international airports.
The organization received perfect scores for visual active offer. However, it needed to do better in terms of in-person active offer and availability of service in the official language of the linguistic minority. Despite that, in 2014-2015, among the organizations examined, it was ranked second for the most complaints filed with the Office of the Commissioner. The complaints, related to communications with the public, were filed under Part IV of the Official Languages Act.
[English]
My office therefore conducted an audit of CATSA from December 2015 to March 2016 to determine to what extent it was meeting its language obligations to the travelling public.
Airport security screening officers, who are, in fact, third-party service providers acting on behalf of CATSA, have a demanding job with very specific tasks. The first priority in their work is to ensure the safety and security of the travelling public in airports.
Before passengers or their belongings enter the secure area of a Canadian airport, they are screened by these officers at airport screening checkpoints. This is a mandatory part of the pre-boarding process for the travelling public. These screening officers must meet the appropriate language obligations and Transport Canada standards.
[Translation]
An active offer of service in both official languages at screening checkpoints points is particularly important in situations where the people providing a service hold a position of authority. An active offer of bilingual services is of prime importance. Travellers have to know that services are available in both official languages and that, from the outset, they can use English or French in their interactions with the screening officers.
The audit looked primarily at CATSA's first area of activity: the screening of passengers, their carry-on baggage and their personal belongings at screening checkpoints in class 1 airports, those with at least 1 million passengers, which are required to provide services in both official languages under the act.
[English]
The audit had four objectives: to verify whether CATSA senior management is committed to implementing part IV of the act, which governs communications with and services to the public in order to guarantee that passengers have the opportunity to be served in the official language of their choice; to verify whether CATSA has formal mechanisms for active offer and for ensuring that services of equal quality in English and French are provided during all steps of the airport security screening process; to verify whether CATSA takes the needs of official language minority communities into account in the planning of its bilingual services; and to verify whether CATSA effectively monitors the delivery of services of equal quality in English and French by the third-party service providers who are contracted to provide services at screening checkpoints in airports.
[Translation]
The audit revealed that CATSA's senior management has made a number of efforts to integrate official languages into its work, in accordance with the principles and responsibilities set out in CATSA's official language policy. Despite the efforts to clearly communicate its official languages obligations to all employees of service providers, CATSA's screening officers do not always greet the travelling public in both official languages and the available services are not always of equal quality in both official languages. The language skills of screening officers are not evaluated in the same way by the different service providers throughout Canada.
There is also no consistency in the training that these service providers offer to the screening officers with respect to official languages. CATSA does not know the optimal number of employees necessary in order to ensure bilingual services at all times, and the current standard set out in the language clauses does not guarantee services of equal quality in both official languages.
[English]
CATSA does not consult official language minority communities regarding services. It checks passenger satisfaction with the services provided in the preferred official language. However, only a small number of francophones are surveyed, and the current methodology makes it difficult to determine the accuracy of the results regarding services provided to francophones.
CATSA has conducted an evaluation of the quality of services provided to the travelling public, and it included an official languages component. Appendix B of the audit lists my 15 recommendations and includes CATSA's comments and action plan, as well as my own comments.
[Translation]
I am largely satisfied with the measures and timelines proposed by CATSA. Its action plan is capable of greatly improving the institution's performance and concretely improving service to passengers. I encourage CATSA to continue its reflection concerning the measures proposed in response to recommendation 3, which calls for CATSA to review the linguistic identification of the positions of directors and general managers in the regions, and to recommendation 8, which calls for CATSA to review its official languages standards under the Contract Compliance Program. Furthermore, I encourage the institution to make the consequences of failing to meet these new standards consistent across all regions.
[English]
Ultimately, CATSA must fully implement all of the recommendations in the audit report in order to meet its obligations under the act in terms of communications with and services to the public in both official languages. My office will conduct a follow-up of the recommendations in the next 18 to 24 months.
I would be happy to answer any questions you may have.
It seems that there really is a recurrent problem in air transport. Mr. Fraser, the previous commissioner, did a special report on Air Canada. Now there is this study on the Canadian Air Transport Security Authority, or CATSA. According to the picture you are painting today and from what I can see, there seems to be a regression in service offer in both official languages.
The newspaper La Presse has revealed certain facts about bilingual employees at screening points. Since 2010, there has been a decrease in bilingual employees at practically all airports in the country. For example, they went from 8 to 6 bilingual employees in Toronto, and from 13 to 11 in Vancouver. Even in Montréal, the staff went from 99 to 94 bilingual employees. So there seems to be a problem and the situation is starting to get out of control. At Air Canada, there are also problems that can be explained in a number of ways.
How would you describe access to services in both official languages in air transport? There seems to be a problem in this area.
:
That is fine, thank you.
In the documents, certain airports are discussed. You said earlier that it was easier to respect the bilingualism issue in Ottawa and in Montréal, because there are a lot of bilingual people in the population. I have the data here. These are overall scores, and they appear in table 3 which is titled "Outcomes of Observations in Airports, Canadian Air Transport Security Authority, 2012–2013".
Jean-Lesage International Airport in Quebec City has a score of 91%. Is this because it was difficult to recruit bilingual people?
For Montréal, the score is 95%. It seems to me that it should be 100%, considering there is a bilingual population pool available.
In Ottawa, where it seems easy to recruit because of the bilingual population, the score is 79%. So I am troubled, because you said that this was a problem in Toronto. You know that Toronto is the hub for transport all over America. Many people come from Montréal and Quebec City, and they are routed through Toronto on their way to somewhere else. You alluded just now to people who do not travel often and are more nervous. This is very troubling to me.
There are troubling percentages, considering your observation about the ease of finding bilingual people in Ottawa and in Montréal. In Quebec City, I assume that people, like Mr. Généreux, are bilingual. There must be others.
A voice: No, it is not 100%.
Ms. Linda Lapointe: I would like to hear what you think about this, because that troubles me a little.
Mr. Samson raised a critical issue, the issue of delinquent suppliers. I would like to talk about that.
You were talking about solutions. In fact, the solution is strictly political. There are no others. However, it is extremely dangerous, in Canada, to talk about bilingualism. It can cost us an election.
In November 2015, the Supreme Court issued a decision in the Caron-Boutet case. In my opinion, it was not by chance that the decision was issued after the election. During the election, it could have triggered a constitutional crisis, or at least a political crisis. This is certainly a case that you are very familiar with, madam. The Court decided to reject the challenge of these two francophones from Alberta and Saskatchewan that was based on historical reasoning and on agreements. In their opinion, Alberta and Saskatchewan should be bilingual provinces and all their laws should, by this very fact, be bilingual. They unfortunately lost their case, because the Supreme Court must first and foremost protect Canadian unity. It does not say this, but it remains that this is its absolute role.
I remind you also that, on the site of the Office of the Commissioner of Official Languages, your predecessor, Mr. Graham Fraser, expressed his extreme disappointment in this Supreme Court decision.
Mr. Caron's lawyer, one of the plaintiffs in the case, said this: “The Trudeau government should do the right thing and say that it will correct this mistake and pay the province of Saskatchewan and Alberta the money they need to translate all their laws and the court rules”.
Bilingualism is a question of politics and money. This is the problem. It is extremely expensive. When the Supreme Court decided that Manitoba should be bilingual, according to the agreements, it cost billions of dollars.
For the providers to stop being delinquent, we, the politicians, must set an example. In particular, we could invest the billions of dollars necessary for Alberta and Saskatchewan to become bilingual provinces. In this way, they could no longer oppose this idea for financial reasons.
On the other hand, there would still be political problems. In fact, I am not sure that Ms. Notley would be re-elected if she took this initiative.
That being said, madam, I would like to know whether, like Mr. Fraser, you were disappointed by this decision and whether you believe that the current liberal government—and I really am asking this without any partisanship—should correct this problem in a political manner and not stop at this decision?
:
That could be the solution.
New Brunswick is the only officially bilingual province, even though Quebec is also bilingual. In fact, according to the British North America Act, all of our laws must be bilingual. At the National Assembly of Quebec, one can freely speak English. A minister was even criticized for responding in French to a question posed in English last week at the National Assembly.
I ask myself some serious questions about the Official Languages Act. In my opinion, because of the very important cultural rivalries and the political culture in Canada, this act is not being implemented adequately.
This brings me to my second question.
As interim commissioner, do you believe that regional bilingualism, as in Switzerland, could be a solution? Each region would have a referendum to choose a language, and this choice would then be applied. Do you find this revolutionary, too dangerous? What is your perspective on this subject?
I would like to return to the Air Canada issue.
The special report contains a few potential solutions. I do not know if you have received a response from the Department of Transport or from another department following these recommendations. Just now, the issue was recommendations concerning CATSA, two of which have not been accepted. However, you are in the process of working on this with the new president.
Commissioner Fraser recalled that he very rarely made a special report and that, if he had submitted one, it was because the situation was critical. He stressed that the situation was very particular and that special measures needed to be taken to settle the problem.
You have certainly received from the Department of Transport a nice letter or a nice response saying that it would examine and assess the situation, especially because there have been recent rumors about the possibility of privatizing the airports. That troubles us greatly.
Have you received a response concerning these rumors of possible privatization of the airports?