LANG Committee Meeting

37th PARLIAMENT, 3rd SESSION

Standing Committee on Official Languages

EVIDENCE

CONTENTS

Wednesday, April 21, 2004

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1535

The Chair (Hon. Don Boudria (Glengarry—Prescott—Russell, Lib.))

Mr. Tory Colvin (President, Fédération des associations de juristes d'expression française de common law)

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1540

¹

1545

¹

1550

The Chair

Mr. James Lunney (Nanaimo—Alberni, CPC)

Mr. Tory Colvin

Mr. James Lunney

Mr. Tory Colvin

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1555

Mr. James Lunney

Mr. Tory Colvin

Mr. James Lunney

The Chair

Mr. Scott Reid (Lanark—Carleton, CPC)

Mr. Tory Colvin

Mr. Scott Reid

Mr. Tory Colvin

The Chair

Mr. Christian Jobin (Lévis-et-Chutes-de-la-Chaudière, Lib.)

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1600

Mr. Tory Colvin

Mr. Christian Jobin

Mr. Tory Colvin

Mr. Christian Jobin

Mr. Tory Colvin

Mr. Christian Jobin

Mr. Tory Colvin

Mr. Christian Jobin

Mr. Tory Colvin

Mr. Christian Jobin

Mr. Tory Colvin

Mr. Rénald Rémillard (Executive Director, Fédération des associations de juristes d'expression française de common law)

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1605

The Chair

Mr. Benoît Sauvageau (Repentigny, BQ)

The Chair

Mr. Benoît Sauvageau

Mr. Tory Colvin

Mr. Benoît Sauvageau

Mr. Tory Colvin

Mr. Benoît Sauvageau

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1610

Mr. Tory Colvin

Mr. Benoît Sauvageau

Mr. Tory Colvin

Mr. Benoît Sauvageau

Mr. Tory Colvin

Mr. Benoît Sauvageau

The Chair

Mr. Raymond Simard (Saint Boniface, Lib.)

Mr. Tory Colvin

Mr. Rénald Rémillard

Mr. Raymond Simard

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1615

Mr. Rénald Rémillard

Mr. Raymond Simard

Mr. Tory Colvin

Mr. Rénald Rémillard

Mr. Raymond Simard

The Chair

Mr. Yvon Godin (Acadie—Bathurst, NDP)

The Chair

Mr. Yvon Godin

The Chair

Mr. Yvon Godin

Mr. Tory Colvin

Mr. Yvon Godin

Mr. Tory Colvin

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1620

Mr. Yvon Godin

Mr. Rénald Rémillard

Mr. Yvon Godin

Mr. Tory Colvin

Mr. Yvon Godin

Mr. Tory Colvin

Mr. Yvon Godin

Mr. Tory Colvin

The Chair

º

1625

Mr. Tory Colvin

The Chair

Mr. Tory Colvin

The Chair

Mr. Tory Colvin

The Chair

Mr. Benoît Sauvageau

Mr. Tory Colvin

Mr. Benoît Sauvageau

The Chair

Mr. Benoît Sauvageau

The Chair

Mr. Benoît Sauvageau

The Chair

Mr. Benoît Sauvageau

The Chair

Ms. Yolande Thibeault (Saint-Lambert, Lib.)

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1630

Mr. Tory Colvin

Ms. Yolande Thibeault

Mr. Rénald Rémillard

Ms. Yolande Thibeault

The Chair

Mr. Yvon Godin

Mr. Tory Colvin

Mr. Yvon Godin

Mr. Tory Colvin

Mr. Yvon Godin

Mr. Tory Colvin

The Chair

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1635

Mr. Christian Jobin

The Chair

Mr. Christian Jobin

The Chair

Mr. Christian Jobin

The Chair

Mr. Raymond Simard

Mr. Tory Colvin

The Chair

Mr. Tory Colvin

Mr. Raymond Simard

The Chair

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CANADA

Standing Committee on Official Languages

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NUMBER 009

l

3rd SESSION

l

37th PARLIAMENT

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EVIDENCE

Wednesday, April 21, 2004

[Recorded by Electronic Apparatus]

¹  (1535)  

[Translation]

    The Chair (Hon. Don Boudria (Glengarry—Prescott—Russell, Lib.)): Order, please.

    Pursuant to Standing Order 108(3), the committee is meeting to examine the nomination of the judges appointed by the federal government and the matter of bilingualism and linguistic duality.

    Our witnesses today are members of the Fédération des associations des juristes d'expression française de common law. Mr. Colvin, welcome. Please introduce your executive director. The floor is yours.

    Mr. Tory Colvin (President, Fédération des associations de juristes d'expression française de common law): Thank you, Mr. Chairman.

    Honourable members, good afternoon. It is a great pleasure for us to be with you again today. If I may, I would say it's becoming a very good habit. We consider it a privilege to be here, as well as a pleasure. First, thank you for having invited us.

    I'll introduce myself, because some of you may not know me. I'm Tory Colvin and I am President of the Fédération des associations des juristes d'expression française de common law. With me is Mr. Rénald Rémillard, who is our director.

    First, a few words about who we are. Our federation is an organization that brings together seven associations of French-speaking members of the legal profession to promote and defend the language rights of Canada's francophone minorities, namely but not exclusively with respect to the administration of justice. The most important aspect of our work is access to the legal system in provinces where the majority of the population is English-speaking. We have members, or French-language lawyers' associations, in British Columbia, Alberta, Saskatchewan, Manitoba, Ontario, New Brunswick and Nova Scotia. Our association is also a member of the Fédération des communautés francophones et acadienne du Canada. One of our greatest concerns is ensuring access to justice in French, or an openness to French.

    Our presentation today deals with the issue of the appointment of bilingual judges to the federal judiciary, at the provincial trial court level. We are not going to deal with the appointment of judges to the Federal Court, although there seem to be some problems with respect to access in French, nor with the different provincial courts of appeal, where there are also problems, nor even with the Supreme Court of Canada. We're only going to deal with the appointment of judges to superior courts, which have different names according to the province they are in. For instance, there is a Court of Queen's Bench in Manitoba, in Saskatchewan, in New Brunswick and in Alberta. In Nova Scotia, it is called the Supreme Court of Nova Scotia, and the same is true in British Columbia. In Ontario, it's Superior Court.

    As you probably know, these courts hear criminal law cases, especially pursuant to the Criminal Code, family law cases, i.e. divorce and child custody, and civil cases, which have to do with contracts, estate law and torts. So these are the courts which deal with the average citizen's everyday problems.

    Although these courts were created and funded by the provinces under section 96 of our Constitution, judges are appointed by the federal government and are therefore part of the federal judiciary. Before determining whether the judges' appointment process respects linguistic rights, it would perhaps be important to briefly describe how the actual process works today. Lawyers who would like to work for the federal judiciary must first submit their application. They fill out a form and provide their personal background information and other information necessary for an evaluation. This evaluation is done by an advisory committee; these exist in each province and territory, except in Ontario, where there are three regional committees, and in Quebec, where there are two of them. Each committee is made up of seven members: a representative from the bar association of the province or territory, a representative of the provincial or territorial division of the Canadian Bar Association, a judge representing the Attorney General of the province or the Minister of Justice of the territory, and three members representing the Minister of Justice of Canada. All deliberations and consultations are confidential.

    There is a list of criteria which must be borne in mind with respect to the character of a good judge. These criteria have to do with competence, professional experience, personal qualities, social conscience and possible barriers to an appointment. The criterion of bilingualism, unfortunately, is only one among several criteria. The committee is asked to evaluate candidates according to three categories: "recommended", "highly recommended" and "without recommendation".

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    The Minister of Justice is ultimately responsible for the appointment. The appointments to the federal judiciary are made by the Governor General based on recommendations from Cabinet. The Justice Minister makes recommendations to Cabinet with respect to the appointment of superior court judges and the Prime Minister makes recommendations with respect to chief justices.

    What are the results of this appointment process in terms of access to justice in French? Well, in our opinion, the current process too often yields unacceptable results. Some jurisdictions are very bilingual. Acadie, in New Brunswick, and the Ottawa region offer equal access to justice in both languages. Other jurisdictions can at best accommodate, with notice and some delays, people who want to have access to court proceedings in French. Other jurisdictions have a very hard time dealing with requests for services in French. Moreover, this reality has been confirmed by our members who have described alarming situations over the last few years, in several provinces.

    I'll give you a few examples. In Manitoba, citizens have the right to use the language of their choice before the courts. Despite this right, in Manitoba, for years there has been no bilingual judge in the Family Division of the Court of Queen's Bench. Therefore, French-speaking Manitobans who want to get divorced in French must call upon a judge of the General Division of the Court of Queen's Bench. Practically speaking, this means that a person who wants to get divorced in French or settle support payment issues in French has to wait longer than if he or she decided to proceed in English. Thus, the system encourages people to ask for services in English rather than French. In many cases, individual taking legal action incurs additional costs because of delays.

    I would like to remind the committee of the Beaulac decision of the Supreme Court. In 1999, the Supreme Court stated with respect to bilingualism in the legal system:

Where institutional bilingualism in the courts is provided for, it refers to equal access to services of equal quality for members of both official language communities in Canada.

    So, we've had this ruling for five years.

    In Manitoba, a francophone client of the legal system does not have equal access to services of equal quality, quite simply because of the lack of bilingual judges in the Family Division. All of this leads one to believe that the current system for the appointment of judges to the federal judiciary may be violating certain constitutional rights in Manitoba.

    As you certainly know, the citizens of New Brunswick also have the constitutional right to use the language of their choice before the courts. In the Acadie region, it seems to work very well. However, from what I hear about the rest of the province it is not as easy to have access to services in French. You have to make a request and have judges brought in, as is the case in Manitoba's Family Division.

    In Ontario, the Superior Court must be able to hear trials in French in the designated regions, pursuant to provincial legislation: the French Language Services Act and the Courts of Justice Act. Despite this right, in Windsor, in south western Ontario, and in Welland, in the south, Ontario's Superior Court has lost its bilingual capacity. Bilingual judges have been replaced by unilingual anglophone judges. Ninety per cent of Ontarians live in regions that are designated bilingual and they therefore have a right to justice either in English or in French. For instance, in London, Ontario, where I practise, there is one bilingual judge out of 30 judges in the region. When the client wants to obtain an emergency interim order for custody or support payments he or she must wait until Judge Morissette is available, or waive the right to proceed in French.

    The Chief Justice of Ontario, Madam Justice Smith, said she was pleased with the appointment of Judge Rouleau in the Toronto region. So are we, but he is replacing Judge Beaulieu, whose is retiring. So in fact, the status quo has been maintained, and that is not progress.

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    If I'm not mistaken, that means that the Toronto area, with some 3 million people, has some 50 judges, two of whom are bilingual.

    All provinces with an anglophone majority have accepted to be held to a minimum, and that is part XVII of the Criminal Code. That allows the accused—sorry, we now have to say the "defendant"—to go to trial in French when charged under the Criminal Code. The same procedure applies for any offence under any federal act.

    Thus, British Columbia, Alberta, Saskatchewan, Nova Scotia, Prince Edward Island, Newfoundland and Labrador as well as the Territories must also have an adequate number of bilingual judges in order to respect part XVII of the Criminal Code. As there are no official statistics concerning the number of bilingual judges in the federal judiciary, that number is still very difficult to establish. In Alberta, there is a judge who speaks French. In Prince Edward Island and Newfoundland, we're not too sure. In Saskatchewan, there's only one bilingual judge on the Court of Queen's Bench. If this judge is sick, on sick leave, on leave or in some kind of conflict situation, Saskatchewan loses all its bilingual capacity for criminal proceedings. I would conclude that this right is very precarious and I also believe that we have a situation that could prejudice the administration of justice in Canada enormously.

    I'll give you an example that does not directly involve the federal government, but it is a situation I'm personally involved in. When Ontario transferred the responsibility for judicial proceedings involving provincial offences to the municipalities, they also inherited the obligation of conducting proceedings in French. I'm ashamed to admit it, but, as a consequence of that, I am involved in prosecuting some provincial offences in some small towns in the southwest of Ontario. Here's how the right to a trial in French is granted: the only justice of the peace in the southwest region works on a circuit basis and shows up at each court four times a year. Thus, each town has four trial days in French per year. That is now a known fact. So that means that all those who speak even just a little bit of French ask to proceed in French. In my opinion, that's for the best. They have that right. It's up to them to exercise it.

    On the other hand, because police services can only take one of the four days, they must send officers to witness on those days the officers might be on leave. That, of course, translates into overtime. I'd say that there's only one proceeding in four in French that is not dropped, because in the case of the other three, either there are no witnesses or it would be too expensive for the police services to pay for the overtime.

    It's not too serious if I drop the charges for a speeding offence. On the other hand, if that same mind-set or the same way of practising law spills over to the criminal level or the family court level, or if it prevails for bankruptcies and other matters under federal jurisdiction, then all of a sudden, criminal procedures might just fall by the wayside. People who should perhaps be found guilty or at least brought to trial won't be, because, as the Beaulac decision has established, there must be equal access, and there is not.

    Thus, we have a few recommendations. I think that the facts show that the judges' nomination process and the advisory committees don't show enough consideration for the language issue in the different regions, nor for the constitutional and even non-constitutional obligations the federal government must comply with by appointing a sufficient number—and I believe the word "sufficient" is the important one—of bilingual judges everywhere in Canada.

    The lobbying and the complaints lodged by our members at all levels of government have been plentiful over the years and don't seem to be leading to any results. The appointment process must imperatively be reformed, and I see that the Standing Committee on Justice, Human Rights, Public Safety and Emergency Preparedness is in the process of examining that aspect. So perhaps this is the right time to address language considerations also.

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    I think the capacity of candidates should be assessed before recommending or appointing any judge as a bilingual judge. Capacity is not assessed at the moment. People call themselves bilingual, regardless of language—be it German, Italian or French. But there is no measure of proficiency in that language. Anyone can just call him or herself bilingual.

    Experience has shown that people call themselves bilingual, when in fact they can get by during a trip, order food in a restaurant, but cannot preside as judges in French. I also believe that we should appoint a minimum number of bilingual judges in every province or region, taking into account the constitutional linguistic obligations of that province as well as demographic factors, potential conflicts of interest, and the principle of equal access to services of equal quality.

    Advisory committees should be required to draw up a list of recommended or highly recommended bilingual candidates—I stress again that these must be bilingual candidates. The language criterion should not be just one criterion among others, as it is now. The recommendation of bilingual candidates is entirely optional, since many advisory committees do not take into account the language obligations of people or of the government when nominating judges. Drawing up a list of bilingual candidates would be one way of solving this problem.

    In our opinion, the government must discharge its linguistic obligations. It must ensure that those who speak French have equal access to justice in Canada. The appointment process dates back to 1988. The time may have come to modernize it, to bring it into line with the recent jurisprudence of the Canadian Supreme Court and with the commitment of the federal government, which we find set out in Part VII of the Official Languages Act and in the federal government's Official Languages Action Plan.

    To conclude on a practical note, we should bear in mind that a bilingual judge does not cost a penny more than a unilingual judge.

    Thank you.

    The Chair: Well said, Mr. Colvin. Thank you for your comments.

    We will now move on to questions. I will have a couple of questions myself later.

    We'll begin with Mr. Lunney.

[English]

    It's your turn, sir.

    Mr. James Lunney (Nanaimo—Alberni, CPC): Thank you.

    I understand there are some 16 advisory committees, based on the notes that were provided for us by the Library of Parliament. Do you coordinate the work of these 16 committees? Is that correct or is this information not right?

    Mr. Tory Colvin: No, the committees are completely outside our organization. The committees are formed with a representative from the provincial or territorial bar, the provincial branch or territorial branch of the Canadian Bar Association, and the province's Minister of Justice nominates three people. In other words, they're completely outside our group.

    Mr. James Lunney: Are there 16 of these across the country?

    They're in different provinces or regions. Is that why there's so many of them?

    Mr. Tory Colvin: There's one in each province and in Ontario there are three, I believe. There's one for the Toronto area. I think there's one for southwestern Ontario, and there's one for the east and the north. I'm not sure of the exact geographic division. I believe Quebec has two, one for the greater Montreal area and one for the rest of Quebec. Thereafter, I think it's by province, so there's one in British Columbia, one in Alberta, and so on.

    I think there's one in each of the territories, but I'm sorry, I'm not sure of the division in the territories.

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    Mr. James Lunney: If I understand you correctly, amongst the questions about the qualifications is simply a question about linguistic ability. It's often evaluated by people who may not be bilingual. Is that right?

    Are you recommending that there be a committee or at least a special list of people who are pre-screened as bilingual candidates?

    Mr. Tory Colvin: At present, the form simply asks: do you speak any other language? You tick off “yes” and then write in what the language may be; Spanish, French, German, or Italian. From there, if people write “French”, it is often assumed that their French is at a level where they can competently do the job in French.

    It isn't necessarily the case. There are many lawyers, friends of mine, who speak French but who wouldn't dare do a case in French. They can get along in a conversation in French. They can arguably say that they're bilingual, but they wouldn't do a case in French.

    I do cases in French. It's fun, actually, to do cases in English as well. They're not quite as much fun, but they're okay.

    Mr. James Lunney: Monsieur le président, I wonder if you could pass the reminder of my time to my colleague here.

[Translation]

    The Chair: Go ahead, Mr. Reid.

    Mr. Scott Reid (Lanark—Carleton, CPC): Thank you.

    You indicated that there was no way to measure bilingualism in judges. There is just a question, like the question on the census about ability to speak the two official languages. Can you tell us how many bilingual candidates for these positions there are in various parts of Canada?

    Mr. Tory Colvin: That is part of the problem. It is not clear at all. We may be aware that some colleagues are candidates, but we never have access to complete lists of all candidates. It's a bit like electing the Pope: we know that a judge will be appointed somewhere, and we wait to see what colour the smoke will be to find out who it is.

    Mr. Scott Reid: No, I'm talking about potential candidates. I'm talking about the pool of lawyers who would be able to function as judges in both official languages.

    Mr. Tory Colvin: There are no assessments. First, based on what I understand, neither the form nor the committees take the matter sufficiently into account. Second, the judiciary itself does not consider the number of judges able to preside in French.

    Often, a judge who speaks a little French—this I know, because it happened to me—will be asked to preside a case in French, with the explanation that the case is not complicated, that it is very simple and that the accused will plead guilty. The judge will be asked if he wants to take the case. He'll say that if it is fairly straightforward, he will do it, but that his French would not be good enough to preside over a constitutional matter, for instance.

    The end result is that you basically have to ask a judge to preside in French. Based on that experience, the judge may think he is bilingual just because he has presided in French. However, if one day you ask him to preside over a complicated procedure involving constitutional law, he will say that his French is not good enough. To be honest, if that's the case, I thank the judge, because it would be unfortunate if, after two or three days of hearings, the judge announced that he had unfortunately not understood a word.

    So we often have to find a judge who masters French fairly well. Even in London, we often have to find a judge in Toronto. If I set a trial date in London, it may take three months before the case is heard. However, if I need a French-speaking judge, and because there is only one judge who speaks French, I may have to wait six or eight months before she is available, since she may be presiding over another trial, on holidays or otherwise busy.

    The Chair: If you don't mind, you can come back during the second round.

    The next speaker will be Mr. Jobin.

    Mr. Christian Jobin (Lévis-et-Chutes-de-la-Chaudière, Lib.): I am surprised by what your report revealed today. I realize that people who live in minority francophone or anglophone areas may not be able to get a trial in their mother tongue anywhere in Canada today. What I would like to know is whether some people cannot exercise their basic rights.

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    Mr. Tory Colvin: I would say so, since they often have to wait much longer. If you want a trial in French, it takes much longer to set a date, because you have to find a French-speaking prosecutor, judge and clerk. This complicates things, because the system is not evenly balanced. The system, at least in Ontario, tries to accommodate people.

    When you make a request, you're told that a person has the right to have a trial in French, that this right will not be breached, but then you are asked to come back two weeks later because only then will available dates be confirmed. However, if a request was made for an English trial date, you would immediately be told that there's an opening in June or July. So there's a problem.

    But that's not all. An accused is usually very happy if his criminal trial is postponed. If he could wait 10 years, so much the better. What's worse, if a person is involved in a civil trial, like a divorce or a bankruptcy proceeding, the person is told that the case can move forward the next day in English and that an interpreter will be provided. That's not quite the same thing as having a trial heard in one's own language. No, I'm sorry, it's not the same thing. But that's what they're told. Sometimes they are told that if they come back in a month, we may know when a French-speaking judge will be available.

    What are the consequences? If a woman desperately needs child support or an interim order giving her custody of her children, she'll say she'd rather have her case heard the next day and waive her right to a French trial. If a person wants to be discharged from bankruptcy in French, but is told that that will only be possible in six months, whereas it could happen next week in English, what do you think this person will do?

    Mr. Christian Jobin: A little earlier, you said that in Ontario, if I recall the figures correctly, there were 27 anglophone judges and one francophone or bilingual judge. Is that what you said?

    Mr. Tory Colvin: I was referring to the regions. Ontario is divided in five judicial regions—into three regions as far as the advisory committees are concerned—and each one has a chief justice. There are 6 or 7 judges in each of the northern regions, which are vast but sparsely populated, and a good 50 judges in the Toronto region. There are also regions around Toronto which are almost as large as the City of Toronto. I am located in the south western region, which is based in London. It has about 30 judges. Apart from the county of Huron, the village of Goderich, the rest of the south western region is designated as being bilingual. Therefore, except for the county of Huron, we can theoretically proceed in French in any civil or criminal case, whatever it may be, with a single judge.

    Mr. Christian Jobin: So, if I understand correctly, the people responsible for appointing judges are not really concerned with making sure the public is well served today, especially as regards minorities in Canada.

    Mr. Tory Colvin: Not as far as we are concerned.

    Mr. Christian Jobin: How can we rectify the situation?

    Mr. Tory Colvin: I think that from the outset there should be much more emphasis on the ability of a judge to preside over a trial in French at the selection stage. After all, we are talking about access to justice. If there is no justice to accede to, how can you have access to justice? If you open a door and there is nothing behind it, there is no access. I think that the first thing to do is to review the criteria and make bilingualism an essential criterion.

    Mr. Christian Jobin: For each judge?

    Mr. Tory Colvin: Not necessarily for each judge. I think that a region which has about 20 judges should have at least 5 who are able to preside over trials in both languages.

    Mr. Christian Jobin: We would therefore need about 25 per cent to meet the needs of the population.

    Mr. Tory Colvin: The Toronto region, which has 50 judges, should at least have a dozen bilingual ones.

    Mr. Rénald Rémillard (Executive Director, Fédération des associations de juristes d'expression française de common law): If I may jump in here, you often hear, as far as the appointment of judges is concerned, that there were not necessarily any bilingual candidates or bilingual candidates who had been highly recommended by a committee. However, based on what we are hearing, the committees don't think language skills are that important. Bilingualism is not even included in their criteria. The committees don't even include it in their concept of merit. It's quite simply optional. If a candidate has done work for the United Way, it carries as much weight as if the candidate is perfectly bilingual. Language requirements are completely forgotten.

    I will hold Manitoba up as an example since I am familiar with the situation there. Appearing before a judge to get a divorce is a real life issue. There are people, such as male or female clients, or lawyers, who tell us that their clients are francophone and wish to obtain a divorce. However, someone who wants a divorce often wants to quickly get married again. So timing is important. You don't want to wait. Many people wait until the last minute, and the only reason why they want to get a divorce, sometimes after five or six years of separation, is because they want to get married again. So, as I said, timing is important. If you proceed in French and you present a divorce petition in French, it will take longer, it will be more costly and more complicated. So people forget about it and decide to proceed in English. So then people say there is no demand for proceedings in French. I think this is a problem.

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    The Chair: We'll come back to that issue during the second round. I've been told that our witnesses will have to leave soon and I want to give each committee member the opportunity to intervene. That's why I'm keeping such a close eye on the time.

    Mr. Benoît Sauvageau (Repentigny, BQ): That's so out of character, Mr. Chairman.

    The Chair: That's true. Mr. Sauvageau, you should not say that since it's your turn. You're up first, so you'll be the first to benefit.

    Mr. Benoît Sauvageau: I'd like to have two additional minutes.

    Good afternoon, gentlemen. As you said in your statement, at this very moment when we are discussing the appointment of judges and the issue of bilingualism, here in Room 705 of the La Promenade Building, the Standing Committee on Justice, Human Rights, Public Safety and Emergency Preparedness is studying judicial appointments, period. Were you asked to appear before that committee to speak to the constitutional importance of bilingualism with regard to the appointment of judges?

    Our representative on that committee is Richard Marceau. This afternoon, I gave him the research branch's information document so he could show it to the justice committee, which is, as I said, studying the process of judicial appointments. I would like to know if you were asked to appear before that committee. If not, is it your intention, through our committee, the Holy Trinity or through some other body, to ask to appear before that committee to advocate in favour of our constitutional rights?

    Mr. Tory Colvin: No, we have not received an invitation yet. However, we would be very pleased to make our case before the committee.

    Mr. Benoît Sauvageau: Perfect, thank you.

    The Commissioner for Federal Judicial Affairs, David Gourdeau, came before the committee on November 4, 2003. I did not reread the blues, but I seem to remember that I asked him the following question. As it now stands, there are 1,029 federal judges in Canada, and I asked him how many of those 1,029 judges were bilingual. The commissioner, who is in charge of 16 appointment offices and all the rest, said he did not know. So, out of the 1,000 or so judges, how many, approximately, are bilingual? Is there any way to get that information?

    Mr. Tory Colvin: I think it would be almost impossible to find out. Some judges are bilingual; they speak both languages perfectly, without an accent. There are others who try to accommodate people. Sometimes, in London, I've gone to see a judge, as I was telling you. The judge may claim to be bilingual, but will recognize very sincerely that it would not be possible to preside over a complex matter. As far as I know, that figure has never really been taken into account.

    It would be very difficult to figure out, since every judge's language abilities are unique. Some of them have a thick accent but express themselves very well, whereas others speak fluently but express themselves poorly. It's very difficult to assess this type of thing. Therefore, as far as I know, there aren't really any statistics on that.

    Mr. Benoît Sauvageau: I'm not a linguist either, but there must be fairly accurate evaluation tests. If, within the federal public service, even though the law is not respected, though sometimes these requirements are taken into account, it is possible to assess people's language skills, perhaps the same thing can be done with judges.

    I greatly appreciated your recommendations on how to improve the way judges are appointed. If section 133 of the Constitutional Act guarantees the use of both official languages before the courts, if subsection 19(1) of the Canadian Charter of Rights and Freedoms also spells out this obligation, if sections 14, 15, 16, 17, 18, 19 and 20 of the Official Languages Act also require that the courts provide service in both official languages, and if sections 530 and 530.1 of the Criminal Code lay out the same obligations and if these obligations are violated, what kind of recourse do Canadians have if they want to have their case heard in the language of their choice? What are their rights and what is their recourse? Can they file a complaint with the Official Languages Commissioner? How can you file a complaint against the Queen's Bench, if the Queen's Bench does not even respect the Constitution, the Charter, the Criminal Code and the law of the land?

º  (1610)  

    Mr. Tory Colvin: You are asking this question of a lawyer who loves defending language cases. It's very simple: you tell the accused that you have raised these points, namely constitutional law, language law and so on, and you take the case up to the Supreme Court of Canada if necessary. That's exactly what Beaulac did to fight for the right to have a trial in French.

    Mr. Benoît Sauvageau: Yet despite the Supreme Court ruling, the Constitution, the Charter, the law and the Criminal Code are still being violated. Is that correct?

    Mr. Tory Colvin: And cases are still being brought up to the Supreme Court of Canada. There are always more cases. We are always bringing forth cases like that one. I'm defending four such cases at the moment, and I know that at least three of them will be appealed, perhaps even up to the Supreme Court of Canada. And that's good, because it will be fun, as we say in Quebec.

    Mr. Benoît Sauvageau: If I have some time left, I would say that, to correct the situation sooner rather than later, if I understand correctly—this is not a statement, but a question—the federal Minister of Justice would have to force the advisory committees to respect the Constitution, the Charter, the law and the Criminal Code. In other words, if the Minister of Justice says that the law must be upheld, it means that in 15, 20 or 30 years, there should be no more problems.

    Mr. Tory Colvin: You are depriving me of arguments I love to make before the courts.

    Mr. Benoît Sauvageau: That's very good.

    The Chair: Thank you very much, Mr. Sauvageau.

    Mr. Simard, you have the floor.

    Mr. Raymond Simard (Saint Boniface, Lib.): Thank you, Mr. Chairman.

    Welcome, gentlemen. You answered several of my questions in your excellent presentation. My question relates to the committees which were struck.

    I believe they were created to ensure a certain level of integrity and transparency in the judicial appointment process, but we now find that there is a problem in these committees. Whose responsibility is it to ensure that we fulfil our obligations? Is it up to the members of the committee? Is it the responsibility of the commissioners' office? Since these people told us that they did not take bilingualism into consideration, this obviously isn't their role. Whose responsibility is it then? Is it the federal government's? Who must assume this responsibility?

    Mr. Tory Colvin: I would say that it is up to the federal government, because in the end, it is the Minister of Justice who appoints at least three members of the committee, half of the membership. In the end, it is the minister and cabinet who choose the appointee among the recommended candidates. Therefore, I think these criteria must be studied at a political level, and perhaps more weight should be given to the criteria which, as I pointed out, have a constitutional aspect.

    Mr. Rénald Rémillard: Section 96 states that the federal government has the duty to appoint judges to the federal court. Therefore, in the final analysis, it is the federal government's responsibility to see to it that where judicial appointments are concerned, there is a process in place to ensure that constitutional and non-constitutional language obligations towards Canadians are complied with.

    Mr. Raymond Simard: I'm not familiar with the process, but I've spoken with several people about the fact that for some trials, more than one bilingual judge or one francophone judge in a minority setting is needed. Could you explain that to me? In other words, in francophone Manitoba—I'm going to take Manitoba as an example yet again because it is something I'm familiar with—you said that of the 40 judges in the Family Court Division, none were bilingual. If we were to appoint one bilingual judge, would that be enough?

º  (1615)  

    Mr. Rénald Rémillard: No. The reason for that is that often, there are conflicts of interest. These are small communities where people know each other.

    Secondly, in some cases as well, if there is a judicial procedure, the judge who presided over a preliminary hearing cannot be the judge to hear the trial. Therefore, it would be impossible to have only one bilingual judge. There would have to be at least two different judges to deal with the same matter. The same goes for family law. There are some procedures, at least in Manitoba—I don't know if this is the case elsewhere—which require two different judges. Therefore, to ensure adequate services in French, there must be at least two bilingual judges. There's also the matter of conflicts, leave, etc. Therefore, there must be a minimum of two.

    Mr. Raymond Simard: Minority communities are pinning a lot of hope on the Dion plan. Do you foresee any changes that will be made to Minister Dion's plan in order to resolve the problem?

    Mr. Tory Colvin: To my knowledge, the plan unveiled for official languages does include a justice component, but I've never heard it said that it would have any impact on the issue of judicial appointments. It should be the case, yes.

    Mr. Rénald Rémillard: The Dion plan includes access to justice in both official languages. If access to justice is raised in Minister Dion's plan and in the philosophy which underpins this plan, I believe that it would be normal for judicial appointments, which are at the very least one of the important powers of the federal government, to be consistent with this philosophy and the approach set out in the action plan. It would simply be logical for one to be consistent with the other.

    Mr. Raymond Simard: Thank you, Mr. Chairman.

    The Chair: Thank you very much.

    Mr. Godin.

    Mr. Yvon Godin (Acadie—Bathurst, NDP): Thank you, Mr. Chairman. We are happy you are with us today, Mr. Chairman. You are not at school.

    The Chair: No, not at school. For your information, I was invited to attend the opening of a school in my capacity as Chair of the Official Languages Committee, but since there's a vote tonight on the budget, the whip has forbidden me to leave.

    Mr. Yvon Godin: I'm proud of your whip. He talked some sense into you.

    The Chair: Indeed.

    Mr. Yvon Godin: I will speak to him tonight and congratulate him.

    We are very pleased that you are here with us today. You spoke earlier of New Brunswick, of the Acadian Peninsula, or the Bathurst region in the northeast, where there are bilingual judges. I think we should talk more about the northeast of New Brunswick rather than the southeast of New Brunswick. In your opinion, in what other areas of New Brunswick are we lacking bilingual judges? Is this the case in the Saint John region?

    Mr. Tory Colvin: We spoke briefly with the head of the Association des juristes d'expression française du Nouveau-Brunswick. We gave him a draft of our document, and he told us—I did not believe there was a problem in New Brunswick because of its constitutional status—that in some southern regions, there was no equal access, but rather that accommodations were made. This is why I am pointing it out. We are going to be in New Brunswick in May and we are going to look into this in more detail.

    From my understanding, it is the anglophone majority which does not fulfil its duty to provide equal access when service is requested.

    Mr. Yvon Godin: If I recall correctly, when the association met in Moncton, New Brunswick, Supreme Court Justice Bastarache was in attendance. At the time, there were complaints that there weren't enough services in French. For example, in Saint John, there are 17,000 francophones. This is a fair number for a small town and there aren't adequate services.

    I think this is terrible. We talk about justice, and it is the Department of Justice which is not doing justice to people. I'm looking forward to hearing what the Minister of Justice has to say in reply to these same questions.

    Did you lodge an official complaint—and I recommend that you do so, if you haven't already—with the Office of the Commissioner of Official Languages of Canada?

    Mr. Tory Colvin: We discussed it, and to my knowledge, there was no such official complaint. However, I recall that we did raise the issue of jurisdiction and matters they could deal with. I believe it was the way we were discussing things which posed a problem. In any case, it was not something that they could look into, but we have to come back to it. It would be another way of proceeding.

º  (1620)  

    Mr. Yvon Godin: Is it because it is out of the question to even broach this issue of justice? Would they be protected, just as unilingual English-speaking ministers and deputy ministers are?

    Mr. Rénald Rémillard: There is a problem with the committees. I'll be very frank. It's often a fairly difficult situation because people pass the buck. They say the committee is responsible for making recommendations...

    Mr. Yvon Godin: Yes, that's really passing the buck, I agree with you. But we're talking about the federal government, which has a responsibility under the Constitution of Canada. Our country is bilingual; there are two languages. You are saying that there are places in Canada where people, such as francophones, cannot get service in their own language. There may also be anglophones, elsewhere, who are in a minority situation and who cannot receive service in their language.

    Mr. Tory Colvin: That's right.

    Mr. Yvon Godin: Don't you think we should turn the matter over to the Official Languages Commissioner? Has the Official Languages Commissioner said that this is not part of her mandate?

    Mr. Tory Colvin: I'm not sure. I remember having had a discussion once with representatives of the Official Languages Commissioner. But there was a problem, I believe, with regard to the type of complaints she may receive. I don't think it was part of their mandate. However, we should certainly look into that in greater detail. It's a problem lawyers have. We sometimes have a very narrow view of things. I sometimes only think of the courts and the process of constitutional challenges.

    Mr. Yvon Godin: I'd like to give you an example. When the Official Languages Commissioner gave her opinion on the matter of electoral boundaries, the judge who had been appointed to the Electoral Boundaries Commission told the commissioner that it was not part of her mandate. So she produced a report. On May 3^rd and 4^th, in New Brunswick, a federal court will be seized of the matter. A judge will decide who is responsible and whether the law has been breached or not. That's why I would recommend that you submit your complaint and let the other parties respond.

    Mr. Tory Colvin: That's been duly noted, Mr. Godin. We'll follow your advice. Thank you.

    The Chair: I would now like to ask a couple of questions. I'll put them to you all at once and ask you to respond afterwards.

    For seven and a half years, until very recently, I was a minister, and in that capacity, I was often involved in the process of appointing judges. You said that it is very difficult to know who is bilingual and I completely agree with you.

    Sometimes I received a list with the names of available candidates. The list either contained the names of people who had been recommended by the group you referred to, or of highly qualified or qualified candidates. As for those who did not qualify, it was as if they had not even been considered; as a result, we did not even know of them. Lawyers want things to proceed this way because it seems that they sometimes like to talk, which means that if someone fails, the news spreads. So it's the lawyers who don't want these things to be made public. That's fine as far as that goes.

    However, under the current structure, based on what I can see, the problem is as follows. First—and I'd like to know what you think about this—we have to refer to the list which is in the hands of cabinet and determine as quickly as possible which candidates are truly bilingual. Then, we have to establish bilingualism as a criterion for new candidates, at least for a certain number of them, as you have just indicated. The fact remains that it is a criterion and that bilingual candidates should get extra points. Lastly, we have to make sure that each region has a minimum number of positions to be filled by people who are recognized as being bilingual, and who have just been selected, or by people whose names are already on the list I mentioned at the beginning.

    I'm saying this in part because of one experience I had. We had to find a bilingual judge. However, in the region in question, there just simply weren't any to be had. So I spoke with a highly respected lawyer who was bilingual and was well regarded in criminal justice circles. Of course, I won't say who it was.

    He submitted an application and we were stunned to learn that he had not passed: he was neither highly recommended nor even simply recommended. It was absurd. By the way, you know him. I deduced that he had not been given any points for his bilingualism, which was terrible. However, we needed a bilingual candidate. I'd like to know what you think about the experience I have just described.

º  (1625)  

    Mr. Tory Colvin: Well, I think that the changes to the criteria you are suggesting are good. However, I think the problem the lawyer you just mentioned encountered stemmed from the committees. There are often internal battles which take place within these committees because some of the candidates want to climb the career ladder. So if they can possibly submit a list of about 5 names and set aside 20, they have already selected the candidates they, for one reason or another, prefer.

    The five candidates on the list do not necessarily include the bilingual candidate a region or province needs, such as the Family Court Division of Manitoba's Court of Queen's Bench. Finally, I believe, just as you said, that it is important to state the criteria more clearly and to lend more weight to what I would call constitutional criteria, which include bilingualism.

    The Chair: Some colleagues have raised the issue of bilingual candidates. Of course, you don't know who the pre-selected candidates are, so you cannot evaluate them.

    However, I would like to ask you if you have a list of bilingual lawyers which include some members of your organization, as well as lawyers who are not members, but whom you know are bilingual.

    Mr. Tory Colvin: There certainly are a fair number of lawyers who are able to plead in French.

    The Chair: How many?

    Mr. Tory Colvin: In Ontario, the AJEFO has about 600 members. Some are not perfectly bilingual, of course, but out of the 600 members, at least 300 go to the annual general meeting, and most of those are perfectly fluent in French.

    The Chair: Thank you.

    Mr. Sauvageau.

    Mr. Benoît Sauvageau: Mr. Chairman, something came to mind while you were speaking, as I was respectfully listening to you.

    We have to integrate immigrants who come from all over the world. We don't know them from Adam and we don't know their past, but they have to pass certain tests, as well as a language evaluation which counts for points. However, we can't even assess the language skills of our homegrown lawyers.

    I would like you to tell me whether the following statement is correct. It is contained in our research notes:

The federal Justice Minister has the final say in appointing candidates to the bench.

    Mr. Tory Colvin: As far as I understand, cabinet does. However, there's a bit of mystery in all of this, because we don't know the recommendations of the advisory committee, for example. So, if you put in an application, you will never know whether you were recommended, highly recommended, or whatever. The candidate does not even know if his candidacy was accepted. It remains a complete mystery. That's why they say it's a bit like electing a Pope: you have to wait for the smoke to appear.

    Mr. Benoît Sauvageau: All right.

    Now, if you don't mind, and since you have shown interest in the matter, if the committee agrees, I will ask our chairman to write a letter or to do something to make sure that you are asked to appear before the Standing Committee on Justice, Human Rights, Public Safety and Emergency Preparedness to speak to the issue of language obligations within the process of judicial appointments.

    The Chair: Is this a motion?

    Mr. Benoît Sauvageau: It's a motion.

    The Chair: Fine. I think it's an excellent idea indeed. I think we can include two things in the letter. We can mention today's meeting, and at the same time ask, even demand, that the other committee hear from these witnesses as well. Does that suit you?

    Mr. Benoît Sauvageau: Yes.

    The Chair: Continue.

    Mr. Benoît Sauvageau: I'm done.

    Thank you very much.

    The Chair: Ms. Thibeault now has the floor.

    Ms. Yolande Thibeault (Saint-Lambert, Lib.): Mr. Chairman, gentlemen, the more we talk about this, the more we can see that there's a whole culture that needs to be changed in the selection process one way or another. As concerns the advisory committees, for example, I wonder if anyone checks as to whether at least one of the members speaks French. If you have advisory committees where only one language is represented, in my opinion, then it's clear that those people, without any kind of ill will, will never think about the bilingualism question. It won't even come to their minds. Shouldn't we be changing something there?

º  (1630)  

    Mr. Tory Colvin: That's something we've been doing for a while. In Manitoba, one member of the committee is a Franco-Manitoban but that's only one voice amongst all the others.

    Ms. Yolande Thibeault: Yes, I understand. But if he reminds the other members not to forget that aspect, then that can help.

    Mr. Rénald Rémillard: Actually, it's rather hard when you're a francophone member because it's as though you're pushing your own agenda. I think that the lawyers on the committee might feel uncomfortable. In effect, if you're always pushing the linguistic agenda, as you are the francophone, the six other people, who are probably anglophones in most cases, will say that we want a francophone. It's not a matter of having a francophone, the constitutional and non-constitutional obligations have to be respected. At the end of the day, that's what the whole question is, but the perception will simply be that we're pushing to get a francophone appointment. Often, there's only one member of the seven who's a francophone. So it's a real minority in some provinces.

    Ms. Yolande Thibeault: But that's often what you have to do in order to get results in our struggle.

    Thank you very much, gentlemen.

    The Chair: Thank you.

    Mr. Godin, it's your turn.

    Mr. Yvon Godin: Thank you.

    Now, maybe you could enlighten me concerning the crown attorney. Who appoints him?

    Mr. Tory Colvin: Sorry, sir?

    Mr. Yvon Godin: I'm talking about the crown attorney. During your testimony, you said that we also had problems getting francophone crown attorneys and clerks. It's all very nice to settle the problem for the judges, but we have to do it for the others. To make a cake, you have to mix all the ingredients together.

    I want to know what happens for the rest of the team, because in reality it is a team. I would like to know who appoints the crown attorneys and the clerks. Shouldn't we be looking at the whole team?

    Mr. Tory Colvin: You talked about a recipe, and that may be a good example, because there are, in fact, two cooks involved: the federal cook and the provincial cook. Superior court judges are appointed by the federal government, but there are two kinds of prosecutors, those appointed by the provinces, who prosecute Criminal Code cases, and those appointed by the federal government, who prosecute under the Narcotics Act and other federal legislation. The clerks or stenographers, however, are appointed by the provinces. So they play a pivotal role.

    I've been involved in cases which were presided by a French-speaking judge. We were ready to proceed in French, but then we found out that the stenographer did not speak French. I have the transcription. It was published by the AJEFO in its publication called L'Expression. Every time we spoke English, the transcription was perfectly accurate, but every time we spoke French, the stenographer wrote “Language other than English”. The judge ultimately decided to postpone the trial to the next day in order to find a French-speaking stenographer.

    Mr. Yvon Godin: As regards this recipe for which we are trying to find a solution, what would you suggest with respect to the prosecutor or the clerk? If we ask for bilingual judges to preside over trials in smaller centres, but if there is no team to support them, there is a problem. What do you think we should do in that type of situation?

    Mr. Tory Colvin: The federal government and the provinces have to work together to find a solution. As a lawyer, the issue is very simple for me. If I show up in court before a French-speaking judge, and if the prosecutor, clerk and stenographer do not speak French, I'll simply tell the judge that the court does not have jurisdiction and that it is not operating in accordance with section 530, with the Charter of Rights and Freedoms, or with the principle of linguistic equality. I then ask the judge to dismiss the accusation, since the court is not in a position to carry out its duties. Some judges will say that I am right and send everyone away, whereas others decide to wait until the next day to see if the situation can be fixed. It depends on the judge.

    The Chair: Since it seems that I only have a few minutes left before your taxi whisks you to the airport, we shall proceed very quickly.

    Mr. Jobin and Mr. Simard, if you don't mind, you may each ask a question. But then we'll have to call the meeting to an end.

º  (1635)  

    Mr. Christian Jobin: I will be very brief, since the motion I wanted to propose is identical to the one put forth by Mr. Sauvageau. You basically took the words out of my mouth, which is not a very hygienic thing to do.

    I am suggesting that we think about hearing from the Office of the Commissioner for Federal Judicial Affairs, which is in charge of appointing judges. We could then urge them to respect the principle of bilingualism.

    The Chair: Representatives from the Office of the Commissioner for Federal Judicial Affairs have already appeared before the committee, but appointments are made by the minister. He will come before the committee next week.

    Mr. Christian Jobin: Fine.

    The Chair: In fact, at the request of Mr. Simard, we deliberately called these witnesses before us today before the minister testifies so we can ask enlightened questions next week.

    Mr. Christian Jobin: Very well.

    The Chair: Mr. Simard, you may ask the final question.

    Mr. Raymond Simard: It's a comment, rather than a question.

    When Mr. Gourdeau appeared before our committee, he said that since 1988, the Minister of Justice had never recommended a candidate who in turn had not been recommended by the committees. The committees ultimately play a very important role. Therefore, I wonder whether we could not argue that there are not enough qualified bilingual lawyers to meet all the requirements of the committees.

    This basically means that there are no bilingual candidates who meet the criteria laid out by the committees, which means that they cannot be recommended to cabinet. Is that an argument we can make? In my opinion, bilingualism is an important criterion, although it is obviously not the only one. The candidates must also be competent in other areas.

    Mr. Tory Colvin: The AJEFO has 600 members in Ontario, Manitoba has about 250 members in its association, and I believe there are about 250 members of the Association des juristes d'expression française du Nouveau-Brunswick.

    Let's say, for the purposes of our discussion, that half of them are incompetent, which I don't believe. There would still be a significant pool left over.

    The Chair: Mr. Colvin, I would like to add that there are presumably many more lawyers who are not members, but are nevertheless qualified. Is that correct?

    Mr. Tory Colvin: Of course they are qualified. I would say that there are more than enough candidates qualified to become either prosecutors or judges. So when people say there are not enough, I don't agree at all.

    Mr. Raymond Simard: Thank you very much.

    The Chair: Thank you very much, Mr. Colvin and Mr. Rémillard, for having appeared before the committee today. There is no doubt that you have motivated us to ask the minister questions when he appears before us in a few days, and to intervene as well in other ways. Your testimony will be of great assistance to us in our work. We would like to take this opportunity to thank you and to wish you a safe return home.

    Before concluding, I would like to remind everyone that the Minister of Justice is scheduled to appear on April 27 at 9 a.m. in room 253-D, as it now stands. The Minister of Public Works is scheduled to appear on April 28 at 3:30 in room 371 of the West Block. These are the two meetings we have planned for next week.

    The meeting is adjourned.