LANG Committee Report

SUPPLEMENTARY REPORT

NEW DEMOCRATIC PARTY OF CANADA

“Ensuring Justice is Done in Both Official Languages”

Introduction

The New Democratic Party of Canada (NDP) would like to thank all those who appeared before the Standing Committee on Official Languages and who submitted written briefs as part of the study on access to justice in both official languages.

The NDP supports most of the recommendations in the Committee’s report, although we wish to make a few comments about access to justice in superior courts and the Supreme Court. Like the Committee’s report, this report reflects a desire to put measures in place to improve the bilingual capacity of the judiciary.

Supreme Court of Canada

Access to justice is important for all Canadians, especially for members of Canada’s official language minority communities. The Liberal government’s new policy for appointing judges to the Supreme Court requires all new judges to be proficient in both official languages.

The NDP applauds the appointment of Justice Malcom Rowe and Justice Sheila L. Martin to the Supreme Court. No doubt they demonstrated their proficiency in English and in French.

Yet the problem with the new policy is that it risks being short-lived because it is not legislated. A new government or even a change in the current Liberal government’s way of thinking could mean a change in policy. The requirement to have bilingual Supreme Court justices must therefore be written into law to ensure that individuals have the right to be understood in the official language of their choice. This is also what the majority of witnesses recommended:

“In the process that led up to the appointment of Justice Malcolm Rowe last summer, the Prime Minister announced that he would only choose bilingual candidates. Since such a policy could be changed by a future government, it would be preferable in my opinion to enshrine it in law.[1]

And:

“The best way to ensure that the judges appointed to the highest court in the country are able to understand both official languages without the assistance of an interpreter is no doubt through a federal law amending the Supreme Court Act or the Official Languages Act.”[2] [Translation]

In this respect, the New Democratic Party has introduced legislation four times since 2008 to ensure access to justice in both of Canada’s official languages. Since 2015 François Choquette has been advocating for Bill C-203, An Act to amend the Supreme Court Act (understanding the official languages). His predecessor, Yvon Godin, tried three times to pass a similar bill to improve access to justice in the highest court in the country. The Liberals voted three times in support of Yvon Godin’s bills.

Yet on 27 October 2017 the Liberal government voted against Bill C-203, An Act to amend the Supreme Court Act (understanding the official languages), which the NDP had introduced in the House of Commons.

The Liberal government defended its position, arguing that the bill could require a constitutional amendment. However, many experts who appeared before the Standing Committee on Official Languages suggested that Bill C-203 did not violate the Constitution:

“In my opinion, the bilingualism requirement for Supreme Court justices is not one of the areas that has been excluded from the jurisdiction of Parliament by the constitutional amending formula. Today, Parliament could still adopt an act establishing such a requirement. I would add, even for those who feel that sections 4, 5 and 6 of the Supreme Court Act have been “constitutionalized”, that there is nothing that prevents you from adding criteria, if those that currently exist are not amended.”[3]

And:

“Two things. First, if someone wants to convince you that mandatory bilingualism would affect an essential characteristic of the Supreme Court, turn the question around. Ask them if being unilingual is an essential feature of the Supreme Court.

[...]

So, basically, when you ask which situation would be changed, the answer is unilingualism. I will never be convinced that unilingualism is an essential feature of the Supreme Court of Canada. Believe you me, a Supreme Court judge will never be convinced of that either.”[4]

In this regard, the NDP partially supports recommendation 1, which calls on the Government of Canada to table a bill during the 42nd Parliament guaranteeing that bilingual judges are appointed to the Supreme Court of Canada.

However, the NDP believes the Liberal government has had enough time to find an alternative to Bill C-203, An Act to amend the Supreme Court Act (understanding the official languages), as this bill was introduced in December 2015. 

In addition, we believe that 120 days following the tabling of this report is sufficient for the Government to demonstrate its seriousness and legislate the requirement that Supreme Court judges be proficient in both official languages.

NDP RECOMMENDATION 1

That the Government of Canada introduce a bill that would ensure judges appointed to the Supreme Court of Canada are proficient in both official languages no later than 120 days after the tabling of this report.

AMENDMENT TO THE OFFICIAL LANGUAGES ACT

Recommendation 2 proposes an amendment to subsection 16 (1) of the Official Languages Act, which excludes the Supreme Court from the language obligations to which other federal courts are subject:

16 (1) Every federal court, other than the Supreme Court of Canada, has the duty to ensure that

(a) if English is the language chosen by the parties for proceedings conducted before it in any particular case, every judge or other officer who hears those proceedings is able to understand English without the assistance of an interpreter;

(b) if French is the language chosen by the parties for proceedings conducted before it in any particular case, every judge or other officer who hears those proceedings is able to understand French without the assistance of an interpreter; and

(c) if both English and French are the languages chosen by the parties for proceedings conducted before it in any particular case, every judge or other officer who hears those proceedings is able to understand both languages without the assistance of an interpreter.

Official Languages Act, R.S.C. 1985, c. 31 (4th Supp.))

Several witnesses suggested removing this exclusion, which is no longer relevant because the Government has decided to appoint only judges who are proficient in both official languages:

“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.”[5]

The NDP supports the second recommendation that, pursuant to recommendation 1, the Government amend subsection 16(1) of the Official Languages Act so that the requirement to be able to understand both official languages also applies to judges of the Supreme Court of Canada.

In this regard, François Choquette already introduced Bill C-382, An Act to amend the Supreme Court Act (understanding the official languages) on 31 October 2017, which would amend subsection 16(1) as required by recommendation 2.

SUPERIOR COURTS

On 25 September 2017, the Honourable Jody Wilson-Raybould, Minister of Justice and Attorney General of Canada, announced the Government’s action plan to improve the bilingual capacity of the superior courts. This plan is in response to the report of the Office of the Commissioner of Official Languages, Access to Justice in Both Official Languages: Improving the Bilingual Capacity of the Superior Court Judiciary.  

The NDP generally supports this new action plan. However, we again deplore the fact that there is no legislation in place to give it the force of law. The action plan states:

“The Commissioner for Federal Judicial Affairs (CFJA) will also be authorized and encouraged to conduct language assessments and/or spot checks.”[6]

The NDP notes that this part of the plan, which authorizes the CFJA to evaluate language skills, rather than systematically, independently and objectively conduct language assessments, does not meet recommendation 5 in the report of the Office of the Commissioner of Official Languages:

5. The Commissioner of Official Languages recommends that, by September 1, 2014, the federal Minister of Justice give the Office of the Commissioner for Federal Judicial Affairs the mandate of:

5.1. Implementing a process to systematically, independently and objectively evaluate the language skills of all candidates who identified the level of their language skills on their application form.[7]

The NDP therefore supports recommendation 3 of the report:

That the Government amend the Judges Act by adding the following after section 3:

Bilingualism — designation of positions

4(1) A position designated bilingual by the attorney general of the province must be filled by a person who, in addition to meeting the criteria set out in section 3, is able to speak clearly in and fully understand both official languages in accordance with the standards to be developed by the Commissioner for Federal Judicial Affairs.

Bilingualism — appointment of bilingual judges

(2) The chief justice of the superior court of the province may ask that a position be filled by a person who, in addition to meeting the criteria set out in section 3, is able to speak clearly in and fully understand both official languages.

Mandate

(3) The Office of the Commissioner for Federal Judicial Affairs shall evaluate the person’s level of proficiency in both official languages.

The amendment to the Judges Act and the measures in the action plan to improve the bilingual capacity of the superior courts would increase access to these courts. Given that MP François Choquette has already introduced a bill that supports this recommendation, Bill C-381, An Act to amend the Judges Act (bilingualism), the NDP recommends that the Government implement recommendation 3 in the 120 days following the tabling of this report.

NDP RECOMMENDATION 2

That the Government implement recommendation 3 in the 120 days following the tabling of this report.

FURTHER CONSIDERATION

The Committee was unable to study some elements despite their importance. Two follow.

TRANSLATION BUREAU

Witnesses raised concerns about the backlog in the translation of federal court judgments. In fact, since the Courts Administration Service (CAS) (created in 2003 to oversee the administration of the Federal Court, Federal Court of Appeal, Tax Court and Court Martial Appeal Court of Canada) largely ceased using the Translation Bureau's services, there appears to be a growing backlog of judgments (both in English and in French) that have simply not been translated.

The CAS decided to go with Legitech, a U.S.-based multinational, that doesn't even specialize in legal translation, hence the drastic slowdown in translating judgments. The NDP believe that having accurate and timely translations of judgments is critical, as these become case law, and most Francophone judges cite their Anglophone colleagues' judgments and vice-versa.

For these reasons, the NDP recommends that the CAS use the services of the Translation Bureau exclusively to ensure accurate and timely translations of judgments.

NDP RECOMMENDATION 3

That the CAS use the services of the Translation Bureau exclusively to ensure accurate and timely translations of judgments.

Moreover, the NDP wishes to emphasize the statement by the former minister of public services and procurement, the Honourable Judy Foote, during her appearance before the Standing Committee on Official Languages:

“I have written to Minister Brison to request his support in considering reverting to a mandatory service delivery model for the Translation Bureau as a complement to other initiatives in support of official languages.”[8]

We look forward to a reply from the President of the Treasury Board, the Honourable Scott Brison.

MISUSE OF ROADMAP FUNDING

A Justice Department internal report entitled Evaluation of the Contraventions Act Program states that more than $40 million from the Contraventions Act program was diverted from the Official Languages Roadmap between 2008 and 2018. This money should have been invested in improving access to justice in both official languages. As the President of the Fédération des communautés francophones et acadiennes (FCFA), Jean Johnson, notes, the needs of official language minority communities are dire:

“For many organizations and institutions in our communities, the clock is ticking. If we want to inject new life into the Francophonie in minority communities, curb population decline and slow down assimilation, we need $575 million in additional investments for our communities in the next action plan for official languages.”[9] [Translation]

The NDP also calls on the Liberal government and the Department of Justice to make up this shortfall in the action plan for official languages for 2018-2023 to ensure greater access to justice in both official languages.

NDP RECOMMENDATION 4

That the Government and the Department of Justice make up the $40 million shortfall that should have been invested in access to justice in both official languages.

CONCLUSION

Canada’s 150th anniversary, the 50th anniversary of the Official Languages Act, and the renewal of the action plan for official languages should be important milestones in access to justice in both official languages in Canada. The federal government must leave its mark on history by taking concrete action to enhance the vitality of official language minority communities. We must work together to ensure substantive equality of English and French for litigants. The current government must therefore put measures in place to ensure the bilingual capacity of our judiciary.