Dear colleagues, I am pleased to be here today.
I will begin by saying that all Canadians have the right to fair and equitable access to the justice system. That system should be able to meet their needs in the official language of their choice.
The right to access justice in both official languages is crucially important. Today, I would like to present a status report on the important progress made by our government to promote that right.
Let me say at the outset that I am proud of the work that the and our government have accomplished thus far. We have made significant progress since taking government by renewing the judicial appointments process, increasing the number of bilingual judges on our courts, keeping better statistics and being more transparent so we can track progress, and providing better training for all actors within the justice system so we can improve our bilingual capacity in our courts.
Building on these initiatives, our government has announced a new action plan, whose objective is to strengthen the bilingual capacity of the superior courts across the country. This action plan, introduced by the on September 25, 2017, includes seven main strategies.
First, as part of the renewed judicial appointments process launched in October 2016, applicants are required to complete a comprehensive questionnaire in which they must indicate whether, without further training, they possess the ability in English and French to read and understand court materials, discuss legal matters with colleagues, converse with counsel in court, and understand oral submissions.
In addition, the action plan now requires that candidates who self-identify as bilingual must respond to two additional questions, namely: one, can you preside over a trial in the other official language?; and, two, can you write a decision in the other official language?
In addition to that, we have augmented the degree of transparency by encouraging the commissioner for federal judicial affairs to disclose those portions of the questionnaire that touch on bilingualism and official languages capacity.
The action plan proposes measures to the federal judicial advisory committee and to the commissioner for federal judicial affairs which they should adopt to improve the information gathered in candidates' questionnaires, strengthen the assessment of candidates' second language skills, and gather more information on language skills.
The second strategy introduced by the action plan concerns the commissioner for federal judicial affairs. The commissioner will continue to play his primary role, which is to support the federal judicial advisory committees, in addition to managing the nomination process on behalf of the .
As for the action plan, the commissioner for federal judicial affairs will have the mandate of carrying out language assessments, or of conducting random assessments of candidates.
The commissioner will also make recommendations to the concerning an objective linguistic assessment tool, also for the purpose of strengthening the nomination process.
Third, the commissioner will examine the current language training program for judges, including the improvement of the practical component based on linguistic competency in hearings.
Fourth, with a view to further implementing the measures set out in the action plan, the has asked the commissioner to make training and information on the linguistic rights of litigants available to her judicial advisory committees.
Fifth, the has likewise requested the Canadian Judicial Council to develop training for judges on the linguistic rights of litigants, to be delivered through the National Judicial Institute.
The sixth strategy calls for the Department of Justice to work with all jurisdictions, as well as the courts, to develop the means for assessing existing bilingual capacity of superior courts. Here, the government believes that the chief justices remain best placed to inform the of the needs of their courts, and it is for this reason that she engages in a constructive dialogue with them and her provincial counterparts.
And finally, seventh, the government also commits to consulting the provinces and territories in order to better identify and understand their needs and co-operate with them.
This initiative will also require co-operation with NGOs, that will share with us the challenges faced by litigants from official language minority communities who require equal access to the judicial system.
Together with our government's previous efforts to enhance the bilingual capacity of the superior courts, we believe these seven components of the action plan are working and, Mr. Chair, the results are telling.
The most recent statistics from the commissioner for federal judicial affairs reveal that between October 2016 and 2017, 997 applications for superior court were submitted. From that number, 300 candidates possessed all four official language skills, according to their questionnaires. More importantly, 24 of the 74 judges appointed indicated that they possessed all four abilities, meaning that fully one third of all new superior court appointments in the last year are bilingual. The results are considerably stronger in bilingual priority jurisdictions such as northeastern Ontario—71%—and Montreal, where 100% of all the appointments in the last year were bilingual.
Also, Mr. Chair, look at the new chief justice of the Alberta Court of Queen’s Bench, Justice Mary Moreau, who was involved in numerous landmark cases involving language rights prior to her appointment to the bench and has since contributed to a bench publication on the language rights of the accused.
As you can see, much has been accomplished. More is required. With this committee's help and thoughtful deliberation, we will get there.
In conclusion, the action plan proposes important new measures for gathering information, training, and co-operation among many stakeholders. We are happy about the fact that this plan corresponds also to many recommendations made in the 2013 study of the federal Commissioner of Official Languages, conducted in partnership with his Ontario and New Brunswick counterparts.
We look forward to reading your report, and we appreciate the diligent study you are undertaking. I look forward to your questions.
Thank you, Mr. Chair.
I thank the witnesses for being here today.
I am going to follow up on what my colleague, Mr. Arseneault, was saying regarding training and information.
Often, when we talk about a bilingual court or bilingual judges, people think that that means having a judge who can hear a case in both official languages. However, it goes further than that. If the stenographer or members of the court administration team are not bilingual, it will be very difficult for the litigants to be heard in their language. Often, even if the judge is bilingual, if the team is not, this causes long delays.
All of this comes back to the issue of training and the part of the five-year, $40-million amount that will be allocated to it. What is the specific plan with regard to allocating those funds?
I know Mr. Arseneault spoke about it, but I'd like to get back to it anyway because I think that training is crucial. There are colleges that offer legal training in French. In my province, in Ontario, there is the Collège Boréal, among others. That training is also offered in New Brunswick and in other colleges elsewhere in Canada. And so we have the necessary resources.
How do you plan to execute the action plan by supporting the training of those who want to join the judiciary?
Thank you for your question, Mr. Lefebvre.
I'd like to make one thing clear. When the parliamentary secretary refers to a $40-million envelope, he is referring to the current envelope, which covers the period from 2013 to 2018. We cannot discuss the next action plan and the Department of Canadian Heritage's horizontal initiative, which obviously includes a justice component, because it is still before cabinet.
That said, the department currently supports the training of those who work in the justice system and court personnel on a variety of levels.
For instance, some $600,000 a year is allocated to the Centre canadien de français juridique, in Winnipeg. It partners with provincial and territorial administrations precisely to help train their crown prosecutors, clerks, probation officers, and so forth.
The Réseau national de formation en justice is another organization that was established. The idea is to adopt a coordinated approach. You mentioned Collège Boréal. The department has given the college funding this fiscal year for a study aimed at identifying legal interpretation and court transcription needs. Those resources are in short supply across the country, so we are studying the situation as we speak.
Mr. Mendicino, thank you for being here this afternoon.
I merely have a comment, but rest assured, it isn't partisan. I'm not quite sure where to begin, but here I go.
I wanted to repeat my NDP colleague's call for the names of any constitutional experts who advised your government in relation to its stance on Bill .
I'd also like to point out that many political scientists and sociologists alike have studied this issue. It's a serious problem that has plagued Canada since 1982. Distinguished Université de Moncton Professor Donald Savoie demonstrated it quite clearly in his book Governing from the Centre. Working as an intern at the Prime Minister's Office, I saw the process in action—a process that puts Canada's democracy in great jeopardy. I am talking about the current concentration of power in Canada in the Prime Minister's Office and the Department of Justice. Together, the two entities assess every piece of proposed legislation to determine whether any part thereof could be challenged before the Supreme Court and deemed unconstitutional.
Although the practice is beneficial and legitimate, the problem is that it results in distorted public policy. The government should not rely on the interpretation of Department of Justice lawyers and constitutional experts that a piece of legislation could be deemed unconstitutional by a judge in the future. As lawmakers, we have the right to assert that a piece of legislation is sound and should move forward, despite what the constitutional experts might think.
If your government is really so concerned about constitutionality, why would you not submit a reference question to the Supreme Court on the bilingual capacity of judges? That would be the least you could do to ensure fewer distortions in our public policy and legislative authority.
As I see it, you should be taking the opposite approach, doing as you did when you were in the opposition. In other words, you should vote in favour of the bill and let Canadians decide whether there is any cause for a Supreme Court challenge, and let the judges, themselves, explore the matter in their expert writings.
Why, then, would you not refer the question to the Supreme Court in order to ascertain the opinion of the actual judges, beyond the government-paid experts at the Department of Justice?
I'm being given just four minutes? Mr. Clarke had eight. In any case, he raised some excellent points that I feel compelled to revisit.
To begin with, he said that the government should make decisions without letting lawyers assess the legality of the proposed provisions. The Conservative Party, would, even before things got off the ground, create legislation that was sure to be unconstitutional, thus putting off, by a year or two, the making of a genuinely favourable decision. The nine times that the Conservatives submitted references to the Supreme Court, it ruled the provisions in question unconstitutional. They submitted nine references to the Supreme Court; it was a game to them. They threw it all into the trash. That's what's so interesting.
My colleague also said that, if Canadians wanted to challenge the legislation, they would. That is from a member of a government that abolished the court challenges program. Its approach was to create legislation, claim that people simply had to challenge it if they felt the need, all the while, knowing full well that there was no funding for such challenges and that it could carry on with its agenda. That's rather incredible.
Mr. Clarke, I'm not referring to you, personally, but to your party. We know how its members voted.
Mr. Mendicino, I'd like to thank you for your work and your appearance before the committee today. I would especially like to thank you for the action plan. Work on the plan began a year ago, and it is going to give us the guidance we need to be successful going forward. That is pivotal.
You talked about the amounts allocated. I would like your department to request an increase in the $40-million envelope, as well as in the $2 million for legal translation. That is crucial.
What are you doing to encourage people to become bilingual? That is my question. What strategies are available?
I'm almost out of time.
First, I would have liked you to say yes. I hope you're going to tell the that she needs to do so. You're already lagging behind. I have been calling for this for two years now. This is nothing new. It didn't come out of the blue.
Second, as Mr. Samson stated in his letter, you are currently working on a bill to fix the problem around the bilingual capacity of Supreme Court judges. Does it involve the Official Languages Act, and, if so, which sections? Since I don't have enough time to hear your response, would you kindly send the information to the committee?
Lastly, “implementing a process to systematically, independently and objectively evaluate the language skills” was one of the recommendations of the former official languages commissioner, Graham Fraser. You went from one question to four, but it is still a self-evaluation. Is that in line with a systematic, independent, and objective evaluation of language skills? Yes or no?
My name is Jacques Fournier, and I am the Chief Justice of the Superior Court of Québec.
This is my third appearance before the Standing Committee on Official Languages. I met with you a year and a half ago. I also appeared nearly 20 years ago when your committee chair, Mr. Paradis, was chairing a similar committee. It was a joint committee, I believe. At the risk of sounding like a broken record, I will be saying the exact same thing I did then, in an effort to drive home the message.
Canada has a bijural legal system. Asserting that fact loudly and clearly, we enshrined it in legislation. We have a public law system that is based on common law. Under our federal legal system, judges at every level, including the Court of Appeal of Québec, Superior Court of Québec and Court of Québec, render excellent decisions. Of that, I am sure.
What the problem is, and has always been, is that the population of Quebec, including its judges, tends to be bilingual, whereas people outside Quebec are less likely to be bilingual. That is even truer among judges. That is not a criticism, simply an observation.
Judges render decisions in all areas of public law, federal law, criminal law, bankruptcy law, and so forth. When it comes to decisions rendered west of Quebec—from Ontario to the Rockies—and east of Quebec—in the Maritimes—it is as though an impenetrable curtain or screen separates the regions. Quebec case law is influenced by that of other Canadian provinces, especially in bankruptcy law and the all-important criminal arena. The reverse influence is not possible, however. Our case law is not portable. The wall separating Quebec from western and eastern Canada is impenetrable; Quebec's case law does not leave Quebec. Here, our way of thinking stems from our training as civil lawyers but influences our thinking in criminal matters and, clearly, bankruptcy law, because it is a form of private law. Our way of thinking is not portable and does not enrich Canada's body of law. Conversely, Canada's body of law does enrich ours.
For a multitude of reasons, I spent a lot of time studying what the Fathers of Confederation, the British parliamentarians, were trying to achieve when they wanted Canada to have a unique legal system. The idea was to achieve unity of thought across the entire country. Unity of thought, however, does not come from just one side of the fence. Ideas need to flow both ways in order to achieve mutual influence. That was what the Fathers of Confederation aspired to. Although it is still not the reality, it remains the aspiration.
My position has been the same for 20 years. Quebec's judges are capable of rendering excellent decisions. We saw a fine example of that at the Supreme Court. Quebec's decisions should benefit all of Canada, just as the excellent decisions of judges in common law jurisdictions benefit the entire country. What we want is reciprocity. As elected representatives, you hold that power in your hands. What we want to see is some form of reciprocity that will enrich Canada's judicial system.
That is the crux of my message for you today.
Thank you, Mr. Chair.
Mr. Paradis, you were once the President of the Quebec Bar too. So was Mr. Fournier, who is now the Chief Justice of the Superior Court of Québec. So all three of us have the role of president in common.
Thank you for having me.
I have been President of the Quebec Bar since June 15, 2017. I was elected to head the Quebec Bar for a two-year term.
On April 4, 2017, you heard from my predecessor in this position, Madam President Claudia P. Prémont. Little has changed since her testimony. However, as a result of the invitation you sent me, I felt it important to briefly restate a number of the Quebec Bar's positions, and to add a comment about the future Chief Justice of the Supreme Court of Canada.
In terms of the bilingual nature of the Supreme Court of Canada and of the federally appointed judiciary, the Quebec Bar restates the right to be heard by a judge in either of the country's two official languages. This is a basic right that all Canadians must be able to enjoy without the need for an interpreter. It is a matter of the equal status of our official languages and of Canadians.
As for the appointment of a bilingual chief justice, in my opinion, there is a lot of talk about functional bilingualism. The best situation is for the chief justice to be able to read judgments in either of the official languages with no problem, understand both languages perfectly and be able to speak, or ask questions in either language.
In addition, since Canada is a country with a bijural tradition, the Quebec Bar believes that it would be appropriate for the next chief justice to be from the civil law tradition.
As for the obligation for legislation to be drafted and passed in both official languages, let me remind you of the Quebec Bar's position. Under section 133 of the Constitution Act, 1867, the National Assembly, just like the Parliament of Canada, must pass and publish its acts in both official languages. The federal Parliament could provide technical and financial assistance to Quebec in order to enable Quebec bills to be drafted and translated.
As for the translation of judgments rendered by Quebec courts, I share the opinion of Chief Justice Fournier in large part. A large number of judgments are rendered in Quebec in matters common to all provinces and all territories of Canada, such as family law, criminal law, constitutional law, and commercial law. Unfortunately, that wealth of legal wisdom is available only to those who understand French. Genuine access to justice requires all legal and judicial documentation to be available in both of Canada's s official languages.
So we are asking for Canada's Department of Justice to work with the various stakeholders in Quebec, including the ministère de la Justice du Québec, the courts, and SOQUIJ, to provide financial assistance to develop a strategy that will enable French-language jurisprudence from Quebec to be translated and made known across the entire country.
Thank you very much, Mr. Chair.
Good afternoon, Mr. Fournier and Mr. Grondin.
We have heard from a lot of witnesses. We have also had people from your organization before us, Mr. Grondin. As you said, the money that SOQUIJ would like to receive in order to be able to translate more documents is a major factor. From what I understand from the , 40% of the allocation will go to training and information. As the total budget is about $8 million per year over five years, it is not a budget in which we are going to find the money we need to achieve that objective.
Mr. Fournier, this is the third time in a number of years that you have testified before the Standing Committee on Official Languages. You feel that you are repeating yourself. Given the current government's action plan, is it your impression that you would still be repeating yourself if you were still in this position in 20 years?
In its desire to have an open and transparent process, the government's objective is to have as many bilingual judges as possible in Canada. I understand from your comments that, because judges in Quebec are bilingual, they are able to read and understand all the judgments written in English, but the opposite is clearly not the case, given that most of the jurisprudence in Quebec is in French only, and the English-speaking judges elsewhere in Canada cannot understand it.
In an ideal world, all judges in superior courts, and in the Supreme Court of Canada, would be bilingual and everyone would be able to understand documents in both languages. According to what you are saying, the reality is that it will be a very long time before that happens.
You have grasped what I said exactly.
If I may, I will add a comment.
Not only do the judgments go unread by our colleagues in other provinces because of the language barrier, but the doctrine is not influenced either. You know that university professors teach what they understand, at least, we hope that they do. Quebec's production of jurisprudence has become a little marginalized. The first point in my remarks was that it does not influence Canadian jurisprudence; but it also does not affect the doctrine. The wheel keeps on turning: jurisprudence enriches doctrine and doctrine enriches jurisprudence.
The language barrier could be removed if the judgments were translated. I am not talking about translating the several hundred thousand judgments that might be rendered in the course of a year. An editorial committee would have to be able to determine which judgments are important in matters of federal law. We need to be able to translate more important judgments. What is being done now is minimal.
At the Supreme Court, clearly, the judgments are translated as a matter of course. The Federal Court proceeds in the same way. In Quebec, if we had an editorial committee, it would be able to identify any recent judgments that are seen to be important for the rest of Canada. It might be a matter of aboriginal law, for example, where there are a lot of challenges. That is an emerging field of law.
We render good decisions in Quebec, at least in my view. Unfortunately, those decisions have no influence on the rest of Canadian jurisprudence. The other way around, we are being influenced more and more by Canadian jurisprudence. Something in that situation is not working, if the intent was to have a bijural system.
Good afternoon, Chief Justice Fournier and Mr. Grondin.
Before I became a member of Parliament, I practised as a lawyer in Acadia. As you know, New Brunswick is an officially bilingual province. You said earlier that there are two opaque walls to the east and the west of Quebec that prevent your neighbours from reading what you write. Curiously, in my case, the situation is quite the opposite. When I began to practice law in French, Quicklaw had only just appeared, the Internet was not yet up to the task, and we were not able to get data. So, to be able to read decisions in French, I went and read those from Quebec, including the ones on criminal law and bankruptcy law.
I am very familiar with the situation. It is true that English Canada does not know the legal legacy and evolution of Quebec society, even though it is a part of Canada. That is a major shortcoming. Things really have to be put right. So I would like to ask you a practical question.
What happens with court of appeal decisions in Quebec? Does the province of Quebec require your decisions to be translated simultaneously, even before they are made public?
Some representatives of the QCGN came to testify before the committee not so long ago. They told us that there really was a major concern in terms of jurisprudence.
Don't put that flag down, Mr. Chief Justice. Keep waving it.
I feel that you really have to go and see what is being done elsewhere. I remember that, when I was a student, we met with some lawyers from Louisiana. I come from a province where we practice English common law in French. But it is the opposite in Louisiana; they still practice civil law. It is a hybrid system, in that they practice civil law and common law, but in English. That's our world turned upside down. In my opinion, it makes a lot of sense to see what is being done outside Quebec, so that some reasonable solutions can be found.
You talked about 1,600 decisions coming from the Court of Appeal, but the volume is not the same in New Brunswick. You cannot compare 1,600 decisions to about 200 decisions in New Brunswick.
Just a moment, we have to be careful. SOQUIJ translates rulings, but that's a small part of its mission. SOQUIJ's mission is really to gather case law, to determine which judgments or cases, if dealing with appeal courts, are more important, to make summaries and to publish them in specialized journals. That's SOQUIJ's mission. At the same time, only marginally, I repeat, does the organization handle translation. However, that's not its primary mission.
When I say four, six, seven or eight people, I'm only talking about the editorial committee that is going to read the rulings.
Now, thanks to electronic distribution, everything is accessible. They have lawyers who read ruling after ruling and, at some point, they find one of interest. A case-compendium author will write a summary of it and, as a result, the distribution of the ruling will become more significant, because users searching with keywords will know that they are in the right area.
We can add to this very mission and decide that we will now add a step, by reviewing federal law and criminal law to determine which decisions are important for a specific reason, and that we will translate and export them.
That would be done first at the level of the Court of Appeal, because of its authority, but many rulings are also rendered in the lower courts. For instance, 99% of the cases heard in the Court of Quebec fall under criminal law. Even in Quebec, this fact is often ignored. The Court of Quebec has excellent judges who could provide outstanding services to all Canadians. That's our thinking.
Mr. Fournier and Mr. Grondin, good afternoon. It's an honour to meet you, even though it's by teleconference. My name is Alupa Clarke, and I am the member of Parliament for Beauport—Limoilou, in Quebec.
You spoke about an editorial committee that could select key rulings. I see some danger in that, and I'll explain why.
I think all rulings should be translated systematically. As you well know, judicial activism is a real phenomenon. In criminal law, rulings are more objective, based on facts and hard evidence. Constitutional rulings, however, are something else. Chief Justice, you mentioned a section of the Constitution Act 1867. I love that; I really like to cling to 1867. That said, the editorial committee could engage in judicial activism by choosing rulings favourable to a certain interpretation of the Constitution for the province of Quebec. You see where I'm going.
In this case, how can we trust that this editorial committee won't engage in judicial activism, which we wouldn't want to see happen?