I've gotten an education, you know. I finished my law degree. I wrote my final exam. In fact, I'm still waiting for your congratulations.
Mr. Chairman, this is a motion which I wish to submit to the committee and see passed unanimously. I'll say it again, I would be very hurt if the committee were to be divided on this matter. I would like to point two things out. First off, unlike what Mr. Lee would have you believe, it does not have to do with judges. We know full well that it is not up to us to decide whether judges appointed in British Columbia need to be bilingual. But for strategic positions, where someone would serve as a spokesperson, arbitrate and serve society as a whole, of course we would expect that individual to function at an adequate level in both languages.
I believe the government has developed a bad habit. What I'm saying regarding judges should of course not apply to Supreme Court justices. How disappointed we were to hear that former justice minister Vic Toews' professor had been appointed to the Supreme Court without knowledge of French. The government added insult to injury by appointing a unilingual anglophone as the ombudsman for victims of crime. We are not calling into question his abilities, obviously not, but he is unilingual.
I think it is our duty, as a committee, to clearly establish that for strategic positions, we expect candidates to know both languages. It is not enough to want to learn the second language, they must know both. What would be your reaction, Mr. Chairman, if an appointee were to be a unilingual francophone? I don't think you would accept that. Yet, the Minister for Canadian Heritage does not speak French. That is also the case of several parliamentary secretaries. The situation has deteriorated. These days, when we call cabinet ministers' offices, it is practically a privilege to be able to speak to someone in French.
It is time we put a stop to this. That is why I would expect my motion to be unanimously adopted by this committee. I know that my colleague has already expressed her support and I thank her for it. It is very frustrating for francophones to see that the status of their language is not respected.
I will stop here, but I expect a unanimous vote.
I thank you for being here.
I studied Mr. Ménard's motion. He had me working all weekend on it, so, of course, I was unable to attend your convention. While I accept Mr. Ménard's comments regarding linguistic duality in Canada, I thought it would be wise to start by assessing the admissibility of this motion. I had some research done by the analysts at the Library of Parliament, who detected a problem.
Section 15 of the Charter is the reference we turn to for all grounds of discrimination. In Canada, grounds for discrimination could be national or ethnic origin, colour, religion, sex, age or mental or physical disability. Only in section 7(c) of the Republished Statutes of the Yukon and in section 10 of the Quebec Charter of Human Rights and Freedoms do we see reference made to language. Therefore, it is only pursuant to those statutes that language may be considered as grounds for discrimination in the case of an appointment. That is not the case for the Canadian Charter, which we are governed by.
We did, however, look into whether there had been cases which could make Mr. Ménard's motion admissible from a legal standpoint. We looked into the words "in particular" which are used in the Charter, and assessed whether any analogous grounds could make this motion, which is otherwise quite good, acceptable from a legal standpoint. Analogous grounds recognized by the courts are different from those I have just referred to. They are citizenship, matrimonial status, sexual orientation and place of residence.
Once I had completed this work, I had to go a bit further and look into whether any ruling had been made. To date in Canada, no ruling would allow us to accept the wording of Mr. Ménard's motion. In fact, if we were to be dealing in the general sense with public service employees, then perhaps there would be an issue. Indeed, jobs are classified as bilingual, given the fact that it is impossible for people who work directly with the public to use interpreters. You cannot always have an interpreter at the immigration counter. It would mean duplication of staff throughout Canada, in all provinces.
I then wondered whether there were exceptions. With respect to the ombudsman, Mr. Sullivan, I wondered what type of legislation these people were subject to and what the criteria were. I discovered that we were dealing with the terms and conditions of employment for full-time governor in council appointees. So, there is the Public Service Employment Act and the provisions which, through the governor- in-council, would affect the positions of deputy minister and above. Well, in their case, official language rules do not apply. I would have accepted Mr. Ménard's position without a second thought, but this problem is a hindrance.
Of course, I said to myself: perhaps there may be a small detail in the legislation which would settle this problem. I looked into the regulations of the act we have just referred to, but was unable to find anything at all. Official languages are referred to in section 4 of the act and regulations, but there is no loophole.
The only loophole I found was provided by the Liberals in 2005. They had too many problems to deal with. In May 2005, Mr. Rodriguez was Chair of the Official Languages Committee. This committee issued a report containing recommendation 13, which reads as follows:
The Committee recommends that the Privy Council Office require that those appointed to deputy minister positions meet the CBC requirements in the second official language.
The letter "C" represents the highest level of reading comprehension, the letter "B" the intermediate level for written communications, and the letter "C" the highest level for oral interaction in the second official language. The Liberals issued this recommendation, but they didn't implement it. They would have had the time to do so because in May 2005 the elections had not yet been called. They left the recommendation on hold, as they tend to do for certain things.
At the end of the day, the motion does not work. You cannot ask a government, of any stripe, to do something that is not allowed by the rules, including those created by the Liberals in 1968 at the time of the adoption of the Official Languages Act. This is not a recent problem, it dates back to 1968. The Liberals passed legislation, but they didn't think of everything. They have had 30 years to do so, but they did not.
I understand and I support the spirit of Mr. Ménard's motion, but I cannot support it in its current form. You cannot demand something which is a violation of rules. And you cannot ask for an appointment not to be made. That is a sovereign power, the power of the king, the power of government. You cannot ask it not to make an appointment. The government decides and is accountable to the public.
Well, that's it when it comes to the substance. With respect to the form, there is one other aspect which you should also consider. I cannot really speak to the English version of this motion, because of my level of fluency in English, but I did carefully read the French motion. The motion states:
Be it resolved that, through the chairman, the Committee write to the Minister of Justice to ask him not to make appointments of persons who do not have a working knowledge of French at the time of their appointment to strategic positions.
You cannot say "who do not have a working knowledge of French". If you're going to adopt a motion on official languages, it has to consider both languages, not one alone. If we want to claim to have equality, we should require both languages, in other words: "who do not have a working knowledge of both official languages" and not only "French".
As to the form, I would point out to Mr. Ménard that the Official Languages Act does not apply in Quebec. It applies in every other province except Quebec because we are excluded from its application.
That would mean that if, in Quebec, we were to appoint a unilingual anglophone to a position we could not, under the Quebec Charter, under our own laws, tell him not to sit or not to be appointed because the language criterion in Quebec is a grounds for discrimination. So, if I were to appoint someone who only spoke English, I could not discriminate against him for that. That is one issue with respect to the form.
Before we impose anything on people throughout Canada, we should see whether the issue would even apply in our own provinces. I would say no. I do not think you should accept the substance of this. I would recommend that the spirit of Mr. Ménard's motion be respected, I find it is quite appropriate, but the form and the use of this motion should not be accepted.
That is my opinion. I can say no more, because I have not studied this matter in any greater detail than that. Thank you.
Mr. Chairman, I will not do the same thing Mr. Cannon did yesterday. It's as though I had never left this committee. I find it ironic that those who speak against this motion are from Quebec. I find that very ironic, if not worse, with all due respect for my colleague across the way.
I have a few years of practice under my belt. It seems to me that Bill 101 in Quebec, which was the Official Languages Act of Quebec, has been butchered on several occasions by the Supreme Court, which essentially stated, and I respect and will always respect the honourable justices of the Supreme Court, that everything must be done to uphold both official languages of Canada where they must be upheld. It seems vital and essential to me that a director of the Department of Indian Affairs and Northern Development appointed in Iqaluit should speak English. It is possible: we could understand that he may not speak French and not understand it. But when you appoint a commissioner who is supposed to help victims of crime in Canada—to my knowledge, Quebec, unfortunately, is still a part of it—we should not even have to ask the question of whether or not this person can speak French. It is essential to me. This is an essential position. What credibility can this person expect to garner in Quebec? None, Mr. Chairman.
I also read my colleague's motion. The colleague who worked all weekend forgot to read a very important bit of legislation, the Canadian Human Rights Act. I would invite him to do so, because we at the Committee on Aboriginal Affairs and Northern Development are currently studying it. I think this motion could apply in this case.
The amendment also seems interesting to me. I would vote in favour of this amendment and of course in favour of the motion. I would invite my colleagues across the way who are preparing to vote against this motion to think twice about the message they will be delivering to those who are listening to these proceedings in French and listening to us here in French today on both sides of this river.
At this point, Mr. Chairman, many things have been taken away from francophones; some people are preparing to go a lot further. I would urge you to be cautious, colleagues, because the elastic band can only be stretched so far. My colleague across the way may very well have done the research, the fact is that there is one essential point we should not lose sight of, and that is that a disservice is being done to francophones throughout Canada through important strategic appointments. What will it be tomorrow? Will the official languages commissioner only speak French or only speak English?
I agree with my colleague, and this is the only thing I will grant him, that this should apply to both official languages. I would not accept to have someone appointed to a high office in Canada who does not speak English. But you know very well, Mr. Petit, that that would never happen. Can you name one single senior official in Canada who is a unilingual francophone? Well, I can name 10, 20, or 30 who speak only English. I could name some at the Department of Indian Affairs and Northern Development, which I know very well, who only speak English, who are in Quebec and serve aboriginal people in Quebec who only speak French.
Let's stop beating around the bush. This motion and this amendment should be supported and adopted unanimously. Otherwise, I would suggest you turn to Quebec in the coming days to see the type of reaction this receives, proving once again that French is a second-class language in this country.
Thank you, Mr. Chairman.
We certainly have our share of points of order that are not.
Mr. Chairman, our country has had this debate actually since quite a while ago. Our Parliament has had this debate. Our committees have debated it, and our members have. In many respects, we are reinventing the wheel here. We don't actually have to reinvent the wheel. The principles are contained in the Official Languages Act and in our Constitution.
There have, arguably, been a few appointments that are perceived to be not in keeping with the spirit or the requirements of the Official Languages Act. I don't think we should be spending a lot of time on this. Our Parliament has debated this thing seven ways to Sunday, and our country has. We've successfully resolved it. We've actually gotten through it. There may not be full agreement around the table here on that issue, but I certainly feel that as a country and as a Parliament we have it.
With respect to the motion itself, I would have preferred a motion that referred to both official languages. In the preamble it says, “Whereas respect for the French language should imbue all ministers”, etc. Really, it's both languages for which we should all have respect. I'm going to move an amendment that the preamble reflect both official languages. If I were being consistent I would do the same thing with the body of the resolution, which refers only to French, but the body of the resolution evolves from the appointment of two people who are allegedly unilingual English, so there is some logic in leaving the single reference to French there.
Mr. Chairman, I have three comments that I would like to make. First of all, I would like to remind Mr. Petit that he has confused several legal concepts, and yet each is distinctive. Section 15, which deals with the right to live without discrimination, or more specifically, the right to equal opportunities, was included in the Charter in 1982 but came into effect in 1985.
My motion does not deal with discrimination. I do not understand how Mr. Petit was able to claim that we cannot pass the motion because the prohibited grounds for discrimination in the Canadian Charter of Human Rights do not include language. The issue here is not discrimination or non-discrimination. The issue is that, under the Official Languages Act, people appointed to strategic positions that are sufficiently important within the federal public service must be, as one of their primary qualifications, able to function in both languages.
I find it is intellectually dishonest to say the least, to suggest that the problem is equally serious in both official languages. There is no member of Parliament at this table, whether he is a unilingual anglophone or not, who could give us an example of francophone appointees who cannot speak English.
I remind you that at the first caucus meeting of the Bloc Québécois—my colleague Mr. Lemay was not there—when we were elected in 1993, the first thing that our leader Lucien Bouchard asked of us was to learn to speak English. The automatic reaction of francophones, on the whole, is to learn to speak English.
Mr. Chairman, it is rather amazing to see that people who have been in Parliament for 13, 15 or 20 years have never bothered to try to learn to speak French. We cannot, of course, oblige our democratically elected officials to become bilingual. However, when one is working for one's fellow citizens, when one is appointed, we are no longer talking about the democratic process. We are paid with public funds and we must serve. It's the least you could do to respect francophones and speak their language.
This issue has nothing to do with section 15, and I do not even understand why we are discussing it. It should be a given that people who are appointed to strategic positions speak French.
I was a member of this committee when Marshall Rothstein, a former University of Manitoba professor, was appointed by the Minister of Justice Vic Toews. The competency argument is spurious and dishonest. The fact that people are competent in their area cannot exempt them from having to know French.
How could the government have been so insensitive as to appoint a judge to the Supreme Court who cannot speak French? He was appointed by a minister who himself cannot speak French. We are not talking about a judge of the Supreme Court of British Columbia, where there are more people who speak Cantonese than French, but a judge of the Supreme Court of Canada. French is of so little importance to this government that the Prime Minister chose to appoint a Minister of Heritage who does not speak French. When we call a cabinet minister's office and ask to be served in French, we are spoken to in "Frenglish". And I could go on.
I would find it abominable that we not pass this motion. None of the subterfuges or specious arguments that anyone could find to distort the motion will change the fact that if we respect French in this country that is Canada, we expect that people who are in strategic positions will speak the language.
If the committee does not pass this motion, the Bloc Québécois will change its report to the committee.
Mr. Chairman, I speak acknowledging that I haven't been on this committee and I certainly don't know the legalities with respect to the substance of this motion, but on the practical side of it, I'm persuaded by both of the points that have been put forward by Ms. Jennings and Mr. Lee.
First of all, we come to the table this morning with precedents and law that have been a subject for decades, and we have reached a position where surely we can be consistent with that legal position, which has been articulated by Ms. Jennings, and which is basically the overriding thought, if you will, that we have an Official Languages Act and that everything we do with respect to our duality of languages should be in keeping with both the spirit and the legal intent of that act.
I really think that we're beating the heck out of an issue that legitimately is before us. Certainly we should revisit from time to time the very essence of what our federalism and our country is about, but if we're going to at this time create new law...and I don't think that's the intent of the motion. The motion is very general, actually. The motion just says to write the minister to ask him not to. It isn't to direct him or whatever. It is, in making appointments, to establish and adhere to the convention that a working knowledge of both languages is reasonable with respect to the job description. I would think that this committee should find that compelling to support the motion as amended by Ms. Jennings.
As a layperson on this committee for the first time, I'm giving you what I think the average Canadian would say. They would agree with Mr. Lee that we're really not at this point embarking on breaking new ground. We're in fact confirming old ground if we support the amendment that's been put forward by Ms. Jennings. Unless there is someone on the committee...and I congratulate Mr. Petit on his analysis; I found it intriguing and I do thank him for the work that he put into it on the weekend. But I don't think even his argument was in contradiction to the general spirit, tone, tenure, and thrust of this motion. I say that with great respect.
I think we should get on with the vote. I won't speak any further. I will be supporting Ms. Jennings' motion for the reasons that I've outlined.
I have five amendments in the next four clauses. They're not amendments I thought up; they came from the witnesses. I think they're very minor points.
Basically, all five amendments make clear the wording to protect that the witness gets fair treatment in their official language. I'll explain each one as they come along, but I'm happy to hear what the witnesses have to say, and then the members can make their own opinions.
The first one, this amendment, only adds the word “may”, and that's the only difference. What the clause basically said before was that if there are witnesses who have different languages, then you have to have a bilingual trial. But a bilingual trial may not be the fairest in all cases; in fact, it may not be possible. You may not have bilingual prosecutors and judges, or it may prejudice one of the witnesses because most of the trial would be in the other person's language. So instead of saying you have to have a bilingual trial when you have witnesses, it says you “may” have a bilingual trial, because you may also have two unilingual trials if that turns out to be more practical or fair. It was suggested by two of our witnesses.
I'm happy to hear from the department.
I think we spoke to this during our appearance before the committee. There are basically three major principal objections to the amendment as moved.
The first is that the provinces were not consulted on such a concept. What we told them as we went about explaining the thrust of the bill is that it would bring about changes as already recognized in the case law and it would clarify the code. So the case law, as it currently stands, and the interpretation of the existing code provisions provide for a translation upon request. So this would be a financial burden of some consequence for the provinces if the amendment were adopted.
On the issue of equal value, we also spoke to that issue. We have in Canada a situation on the ground that the Commissioner of Official Languages himself points out regularly: there are so many millions of francophones who do not speak English and some many millions of anglophones in Canada who do not speak French. Among these people are police officers on the ground who write the original documents that are the key documents for the indictment, and they write them in the only language, in many cases, they can use. To provide the translated version of that originating document with equal status, in our view, introduces some uncertainties into the criminal justice system. It provides for additional arguments by the accused wherever there might be discrepancies, and it essentially would create what might be fairly described as additional loopholes.
It's been the case law since 1995. It has been on leave to appeal to the Supreme Court, which was refused. This is the state of the law since 1995 and this is what we told the provinces, that this is the state of the law and that this is merely clarification of existing law, and therefore there are no additional costs entailed in moving the bill forward, because the costs are already counted, if you like, in the existing provisions of the code. What we're avoiding here is costly and lengthy potential arguments, which have not arisen often, as to the interpretation of the code, having the potential for these debates to happen again and again before the provincial courts, so we propose clarification of the existing law.
That's why, in going to the jurisdictions, we've told them the intent here is to clarify the existing law. If anyone wants to take issue with whether that's the existing law, they would have had that opportunity. Nobody has challenged that assertion, so my appreciation of the situation is that the provinces recognized that this was the pre-existing requirement of the code and/or that the additional costs would be fairly minor.
We've had no indications from the jurisdictions that on the original way the amendments to the code were framed, they would have objections to this. When we change it to automatic, then that is a separate issue.
I'd like to point out as well, perhaps not to open up another issue, that under the Official Languages Act there are existing similar provisions and they too, since 1988, have been formulated as an on-request formulation so that the non-governmental party before a federal court, when confronted by the representatives of the state, can obtain a copy of the originating documents upon request.
So there is consistency in approach here in what we're doing in terms of the original amendment, and consistency as well with the case law that had gone forward.
I hadn't given up the floor, Mr. Chair.
Again--and I'm saying this to the rest of the committee--any lawyer who looks at that section of the code once passed, where you can make an application, is going to make the application. You would be on the verge of being incompetent if you didn't, at the time you applied for the trial. So those are going to come anyway.
Let me make one additional point, in terms of the comment Mr. Tremblay made of the Official Languages Act. You're right there, to ask for documentation to be translated. We're talking about a significant difference here in terms of what's in peril. We're talking about the person's liberty in a lot of cases, in these criminal cases, and the right to have that document, it seems to me, should be recognized, with the added risk that you have, as opposed to a number of the other documents that you would be seeking under the Official Languages Act, such as some other documentation coming from the public service.
But you're not necessarily talking apples to apples; you're talking more apples to oranges. It's much more significant having these documents available to you automatically than it would be having those documents under the rest of the official languages provisions.
I'm not going to support the amendment for three reasons, and I accept that prima facie it looks like a pretty reasonable thing to do.
But the first point is that the package of amendments that is proposed in the bill has evolved as a result of PTA agreements--federal-provincial agreements with the provinces--and discussions. The specific amendment now proposed is at variance and inconsistent with what had been agreed to in those discussions.
Second, the provision, the way it's been constructed now, either directly or indirectly imposes a specific automatic procedural burden on a prosecutor. This would be new. Prior to this, or based on the package of amendments that have come through, a prosecutor would be obligated to respond if requested, but the amendment that's proposed by Mr. Bagnell will make it an automatic procedure, a must-have, and if it's not there you're going to get your charges thrown out. I think that should be vetted before we impose it.
Third, we're trying to fix something that, based on the current law of the land, is not broken. Our courts, both on the criminal side and the official languages side, if I take the testimony here at face value, have found that the on-request mechanism proposed by the bill, not by the amendment, is a satisfactory resolution to the two-language challenges we have right across the country in the criminal process.
I'm reluctant to, on the fly, impose this new procedural and legal benchmark without vetting it through the system. I'll leave aside the question of costs that may be there. They may be minor, but believe me, if you have to do something in every case where there's a section 530--that's every case, without exception--if you don't do it right, you lose your case, and I don't want to go there yet.
There are two things. The intent behind the bill in those provisions is not to change anything with respect to the part of the phrase that required the judge to “speak”. We haven't changed that. That was there in 1988: the judge “speaks”; the prosecutor “speaks”. So you take issue with that, and I'll come back to it. We haven't changed that.
What the bill does is clarify that this requirement that the judge speak the language of the accused also applies with the necessary adjustment in bilingual trials. That may mean that the judge needs to speak both official languages. That's the thrust of the bill.
On the issue of whether the judge or the prosecutor should actually use the language of the accused or use both languages where that's the order made, I would say, first, it is in our view an unnecessary specification, because the case law again has interpreted the existing provisions of the code in that way, that when the code indicates that the judge “speaks”, this actually means that the judge and the prosecutor must indeed use the official language of the accused.
As well, I would caution the members that it appears to me that the motion as drafted actually would reduce the right of the accused as it's currently understood under the code. If I can explain that, currently with the phrase that says the judge will use the language of the accused, in the case law in Ontario—this is the Ontario Court of Appeal in the recent case of Potvin—Madam Justice Charron, as she then was, indicated that it meant the judge would actually be required to use the language of the accused throughout the proceedings. Whether he was speaking to witnesses, whether he was speaking to the Crown, whether he was speaking to the accused, the judge would actually be using the language throughout—hence, our slight qualification to that situation by providing in the bill that in exceptional circumstances the judge might examine the witness in a language other than the language of the accused.
By adding the words, “shall use the official language of the accused when addressing the accused”, we feel that might actually narrow the scope of what is currently required and what is certainly our interpretation of the requirements of the act, both for the judge at paragraph 530.1(d) of the Criminal Code, and for the Crown or the prosecutor at paragraph 530.1(e).