Mr. Chair and former president of the Barreau, vice-chairs, and ladies and gentlemen of the committee, good morning. It's a tremendous pleasure to be here to discuss this extremely important topic.
I would like to begin by thanking the committee for inviting the Barreau du Québec to be here and share its views on official languages in the judicial and legislative arena.
My name is Claudia Prémont, and I am the president of the Barreau du Québec. With me today is Sylvie Champagne, the secretary of the order and director of the Barreau's legal department.
The Barreau du Québec is the professional order representing some 26,000 lawyers in Quebec. It has a mandate, enshrined in law, to protect the public. That mandate includes protecting the public in their dealings with lawyers. To that end, the Barreau has a range of measures at its disposal. They include responsibility for admission to the profession, peer review and disciplinary oversight of members, and management of prosecutions against non-members for practising the profession illegally.
In a broader sense, the Barreau's mandate to protect the public also includes a significant social component that extends to all users of the justice system. The Barreau protects the public by safeguarding the rule of law and taking public positions on a range of legal issues, particularly the rights of vulnerable people and minority groups. It is with that background that the Barreau is pleased to participate in the committee's consultations today.
The Barreau is especially concerned by respect for language rights within the justice system. It is our view that the issue gives rise to three major areas of concern for Quebec. I will use the few minutes I have to summarize them for you, with the knowledge that you have seen our short brief.
The first concerns the bilingual proficiency of Supreme Court of Canada justices and federally appointed judges. The second pertains to Quebec's constitutional obligation to draft its legislation in English and French. The third involves the translation of its court decisions.
First, with respect to the bilingual proficiency of Supreme Court of Canada justices and federally appointed judges, the Barreau du Québec is satisfied with the new process announced by the for appointing Supreme Court justices and the bilingual requirement it sets out. It addresses many of the things we have been calling for over the past few years. The ability to be understood by a judge in English or in French is a fundamental right that guarantees the equal status of the country's two official languages. As far as the appearance of justice is concerned, it is extremely important for justice system users that the judge not need the help of interpreters.
I should point out that the Barreau du Québec spoke out on the issue in 2011, 2014, and 2016. The new process seeks judges who are functionally bilingual. In our view, that includes the ability to not only read and understand the language of the parties before the court, but also to ask questions in that language. We see it as crucial that judges have this level of bilingual proficiency so that they can converse and ask questions in the language.
Although we are very pleased with this change, we recommend that the Supreme Court Act be amended so that future governments are also bound to respect this requirement.
As you know, some jurists argue that, because the change will alter the makeup of the Supreme Court, a constitutional amendment is necessary. That would require the approval of seven provinces accounting for at least 50% of the population of Canada as a whole, as interpreted by the Supreme Court in the reference regarding Justice Nadon. This constitutional consideration merits special attention.
The Barreau defers to the expertise of Professor Sébastien Grammond, from the University of Ottawa's Civil Law Section. According to Mr. Grammond, Parliament has the necessary authority to enact legislation making bilingualism a condition for the appointment of Supreme Court justices, without the need for a constitutional amendment.
As for other federally appointed justices, it is our view that bilingual proficiency is most certainly an asset, even a prerequisite, depending on the region where the judge will serve. Bilingual proficiency should not, however, be a prerequisite for judges in all regions. The reality of a judge in Saguenay is completely different from that of a judge in Montreal.
Now I will turn to the obligation to draft legislation in both official languages.
As you are aware, section 133 of the Constitution Act, 1867, requires Quebec's National Assembly to pass legislation in both official languages. Nonetheless, over the years, members of the legislative assembly have adopted the practice of voting for legislation drafted solely in French. Therefore, amendments passed by parliamentary committees are routinely not immediately available in English.
Bills are initially drafted by lawyers or notaries who are legislative drafters and then translated by translators who do not necessarily have legal training. As you can imagine, that causes problems. In some cases, the errors are grammatical, but in other cases, the discrepancies between the two versions may even lead to a completely different interpretation of the law. Users of the justice system must then turn to the courts for a ruling on the interpretation of the law. As we all know, the courts are overburdened right now, so that is not the best option. Every effort must therefore be made to rectify the problem as quickly as possible.
In particular, the Bar of Montreal highlighted numerous errors in the new Code of Civil Procedure of Québec. It is actually not that new anymore, having come into force in Quebec more than a year ago. A tremendous amount of work is under way to fix the differences between the French and English versions as quickly as possible.
It took more than 18 years to produce equally sound versions of the civil code in both English and French. Unfortunately, that's a reality we have no choice but to accept.
What can the federal government do to help? It can provide financial support to help efforts to ensure a more effective translation process going forward, especially as regards vital pieces of legislation such as the Code of Civil Procedure. We would very much like to see joint drafting used, although not necessarily for every bill. That would not be possible in light of the resources available. Nevertheless, efforts should certainly be focused on improving the process. We are currently working with the ministry of justice to that end. The financial support I spoke of, however, would obviously lead to results more quickly.
I will now discuss the translation of decisions.
We drew the attention of the Standing Committee on Official Languages to the problem on November 22. Vice-President of the Barreau du Québec Antoine Aylwin and Casper Bloom, the director of the Association of English-Speaking Jurists of Quebec, discussed the matter with the committee. The problem regarding the translation of decisions is this. Section 9 of the Charter of the French Language gives any party to a judgment the right to have that judgment translated into French or English at no cost, no matter which official language it was rendered in. Clearly, the court has the discretion to choose the language of the judgment. A party may then request that the judgment in their own case be translated. The vast majority of Quebec judgments are rendered in French. Some parties do request the translation of their judgment, although not in most cases. That means that the lion's share of our jurisprudence is in French and therefore has much less of an impact than it could were it translated. Courts in other provinces cannot understand it, so it is simply not consulted.
One of the issues we reiterate in our brief is the fact that the Société québécoise d'information juridique, or SOQUIJ, the ministry of justice, and Quebec's various courts—the Court of Appeal in 2003 and the Superior Court and Court of Quebec in 2005—came to an agreement to translate into English 1,350 pages of jurisprudence of Canada-wide interest. That is equivalent to 450 pages per court. Obviously, numerous statutes apply equally throughout the country, regardless of Quebec's civil tradition. Thanks to funding from the Department of Justice, between 2010 and 2012, SOQUIJ was able to translate 1,350 additional pages of Court of Appeal judgments. These were judgments chosen by the court for their national appeal.
It is important to understand that the lack of translation of judgments has a major impact on the visibility and influence of decisions rendered by Quebec courts.
I will give you some statistics. For example, the number of judges serving on the Court of Appeal of Quebec is similar to the number of judges serving on the Court of Appeal for Ontario. It should be noted that Ontario has the Divisional Court. Nonetheless, in 2015, the Court of Appeal of Quebec rendered nearly two and a half times as many judgments as the Court of Appeal for Ontario. In that same year, Court of Appeal for Ontario cases were cited more than 1,500 times by Canadian jurisprudence, while Court of Appeal of Quebec cases were cites only about 300 times. That is directly related to the fact that, currently, the lack of translation of judgments rendered by Quebec courts unfortunately prevents us from really having an influence, as I was saying at the outset.
To improve access to the Canadian justice system and increase federal courts' ability to render decisions that are available in French and in English, Budget 2017 proposes to allocate $2 million over two years, starting in 2017-18, to the court administration services. I want to specify that this pertains to the Federal Court of Appeal, the Federal Court, the Court Martial Appeal Court of Canada and the Tax Court of Canada. Once again, the Superior Court of Quebec and the Court of Appeal of Quebec are unfortunately not covered by those measures.
In that respect, we are asking the Department of Justice Canada to collaborate with various Quebec stakeholders, including the Quebec justice department, courts and the SOQUIJ, and to provide financial assistance to develop a strategy that will help encourage the translation of judgments. I think that we all have an interest in that being done. Quebec has an interest in its jurisprudence being known, but it is also extremely positive for the rest of Canada to have access to the cases of Quebec courts.