Proceedings of the Standing Senate Committee on
Official Languages
Issue 4 - Evidence - Meeting of December 13, 2004
OTTAWA, Monday, December 13, 2004
The Standing Senate Committee on Official Languages met this day at 5:08 p.m. to study and to report from time to time on the application of the Official Languages Act and of the regulations and directives made under it, within those institutions subject to the Act.
Senator Eymard G. Corbin (Chairman) in the chair.
[Translation]
The Chair: This is the seventh meeting of the Standing Senate Committee of Official Languages. Today we have the honour of welcoming the Minister of Justice, the Honourable Irwin Cotler. He is accompanied by officials whom he will be kind enough to introduce to us.
Mr. Irwin Cotler, Minister of Justice and Attorney General of Canada: Thank you. It is an honour for me to appear before you today to talk about a topic that is very close to my heart, that of official languages, from the particular perspective of access to justice.
I will begin by confirming, as I have already done in writing on another matter, the great importance that I grant to the work of the Standing Senate Committee on Official Languages and to realizing the objectives in Part VII of the Official Languages Act.
Very early in my academic career, I became interested in history and in the protection of official languages and cultures in Canada. The first paper that I published dealt with this issue and its introduction quotes what Henri Bourassa had said 90 years earlier:
We must never forget that preserving the language, the language struggle, is the struggle for national existence.
I acknowledge that for official language linguistic minorities, the protection provided by constitutional and quasi- constitutional linguistic rights plays an important role. As the courts have stated, language is much more than a means of communications, it is also a means to express our identity. I have also said that this is something that involves basic human rights.
In an officially bilingual country like Canada, I think that every effort should be made to ensure to our fellow citizens, especially the members of official language minority groups, the respect of their linguistic rights. It is a fundamental element of Canada, one that is at the very core of our country. The courts and particularly the Supreme Court have stated the importance of this principle.
And because I also think there is always room for improvement in any organization, I intend to make sure that I and my department do everything within our powers to work towards continuing to improve the quality of the services provided to official language minority groups everywhere in this country. In so doing, however, we must take into account the fact that in Canada, the administration of justice is an area of shared jurisdiction.
[English]
This having been said, I know very well that we cannot content ourselves with generalities or wishful thinking, however well intended. That is why the previous government adopted an Action Plan for Official Languages, a plan that is firmly and clearly supported by the current government. For the Department of Justice and me, this plan is extremely important, because it will help us to make major strides in certain areas.
Let me now summarize for you some of the initiatives that we have taken.
First, we have made notable progress on the contraventions issue. A new agreement was signed with Ontario in March 2003, with Manitoba in February 2004 and with British Columbia in June 2004. The department is pursuing its discussions with Nova Scotia and Quebec to renegotiate its current agreements. We have indeed reviewed and agreed to the final version of the bilingual ticket that will be used in Quebec for federal contraventions.
To date, in the six provinces where the contraventions system has been implemented, specific provisions ensure that forms are bilingual. I expect further developments within the next few months.
[Translation]
Secondly, regarding the legislative instruments re-enactment issue, the department has set up a group devoted exclusively to this task. A preliminary assessment of the requirements of the act has been completed and the department has begun contacting other departments to inform them of their responsibilities regarding the legislative instruments under their jurisdiction. The department has until 2007, which is five years from the coming into force of the act, to complete the necessary review, and a further year to report to both Houses of Parliament in detailing the results of the review. This task will permit us to once and for all ensure that federal legislative instruments are constitutionally valid.
[English]
Third, Mr. Chairman, we have introduced in the Senate, and it is about to be adopted, our harmonization legislation to bring the federal law in conformity with regard to civil law and common law concepts, definitions and terminology. This will put us at the forefront internationally as a bijuridical legal system, the civil law and common law, and the harmonization with respect to those two legal systems in both languages.
Fourth, the Access to Justice in Both Official Languages Support Fund, as it is called, was created under the government's action plan. It is designed to increase the department's ability to develop innovative measures in order to improve access to justice in both official languages. It also aims at raising awareness within the community and official language minority groups regarding their linguistic rights.
Under the fund, projects are funded as part of contribution agreements with non-profit or public organizations. The fund has been rather well received by official language minority groups all over Canada, and I am confident that it will yield the desired results.
Since its inception in June 2003, the fund has supported more than 40 projects, many of which are aimed at improving the request for and the offer of services related to justice. For instance, the fund provides core funding for associations of French-speaking lawyers and their national federation. It supports the creation of original works of common law in French and of civil law in English. Indeed this was done.
[Translation]
Among them, the faculty of Law at McGill University, which addresses both systems of law.
[English]
It supports legal terminology training for judicial stakeholders from Western Canada and Northern Canada as well as linguistic training for the bilingual judges of the court of Quebec —
[Translation]
— and supports the development of tools for lawyers working with justiciables from official language minority groups.
In addition, a formative evaluation of the support fund will be completed by September 2005. This evaluation will focus on the fund's structure. A final, or summative evaluation, will be completed in September 2007. These evaluations will enable the department to make sure that the desired results will be achieved.
[English]
Fifth, the department has also expanded and improved its consultation mechanisms by setting up an advisory committee to study matters relating to justice in both official languages, thus, it acts as a liaison between stakeholders from the legal community and official minority communities. This committee met for the first time on February 26, 2004. Two subcommittees have also been created under the umbrella of the advisory committee.
[Translation]
More recently, the Advisory Subcommittee on Access to Justice in Both Official Languages held its first meeting on December 4. The Advisory Subcommittee — Community Component (section 41 of the OLA) — will meet for the first time in February 2005.
[English]
Sixth, the department played a pivotal role in creating a federal-provincial-territorial working group on access to justice in both official languages. Among other things, this group examines the results of a study entitled Environmental Scan: Access to Justice in Both Official Languages that identified obstacles to access to justice in both official languages, and the working group is addressing those identified obstacles in the course of pursuing appropriate remedial initiatives in that regard. The group has met three times to date. Its members met face-to-face for the first time in Ottawa on March 30 to adopt a working plan. They will meet again in February 2005.
I might add, the whole question of protection of official language minority rights within the framework of access to justice will also be on the agenda for a forthcoming meeting of federal-provincial-territorial ministers of justice and Attorneys General of Canada.
[Translation]
Furthermore, the department has also been active in the area of legal aid.
[English]
As part of the Legal Aid Renewal Strategy, an investment fund was set up to foster approaches to address unmet needs in criminal legal aid, and to civil legal aid in the territories, through innovation.
[Translation]
To receive funding over the three years of the strategy each jurisdiction prepares a three year business plan that includes provisions relating to official languages.
[English]
While it is still early in terms of being able to make an assessment, a number of official languages initiatives are being implemented with investment fund resources. I will give some examples of these projects, which include: information services expanded to provide services in both official languages; bilingual application forms for legal aid; provision of duty counsel, and, pursuant to the Brydges case, duty counsel services in both languages; and an increased capacity to provide legal aid assistance in both official languages at the trial level. We will continue to monitor the progress of these initiatives in the months to come, and we trust that they will give expression to the objectives we had in mind.
As you can see, the department is taking very seriously our responsibilities flowing from the action plan. I am especially encouraged by the measures that have been implemented by our department officials to date. They will be able to elaborate on these measures in the course of questions that are put to us. However, as I have already stated, we must constantly strive to improve access to justice for official language minority groups, which leads me to one final point and concern.
[Translation]
Mr. Chairman, this issue has given rise to some concerns.
I would now like to deal with the matter of bilingual judges. It is true that some concerns were expressed about the relative importance of bilingual judges on some of our courts.
[English]
I want to assure this committee and the various interest groups who have identified these concerns, and with whom I have spoken on a regular basis, that, as Minister of Justice and Attorney General, I am committed to ensuring that the federal judiciary's linguistic profile provides access to justice in both official languages. In particular, before recommending any appointment to cabinet, I confer with the chief justice of the relevant court to determine the court's needs, including linguistic capacity.
[Translation]
As you are no doubt aware, chief justices are responsible for assigning judges to sit on courts. They are in a good position to examine the roles and understand the needs of the communities that they serve. This special knowledge allows the chief justice to advise me as to the type of qualifications that must be taken into account, including the linguistic capabilities.
[English]
Again, I want to close on this point, and emphasize that I welcome and invite any group to bring to my attention any qualified bilingual candidates and to encourage those candidates to apply to the relevant judicial advisory committee. This will help us ensure that there is a strong pool of bilingual candidates from which to fill vacancies as they arise.
This concludes my presentation. I appreciate the attention and consideration which you have provided. I will be happy, together with my officials, to take any questions that you have regarding any matters contained in the presentation or outside of it.
The Chairman: Thank you very much, Mr. Cotler. I would like to introduce your officials to the other members of the committee. With you is Ms. Suzanne Poirier, General Counsel and Director, Francophonie, Justice in Official Languages and Bijuralism;
[Translation]
Mr. Marc Tremblay, General Counsel and Director, Official Languages Law Group and Mr. Marc Giroux, Judicial Affairs Advisor, Minister's Office.
Senator Comeau: I would like to thank you, Mr. Minister, for being here this evening. I would like to thank you for your personal interest in this subject matter.
I would like to, Mr. Minister, discuss your department's responsibility for examining initiatives, programs and policies of federal institutions that might influence official languages. If I understand correctly, this involves the responsibility framework which is part of the action plan.
Since the Marshall decision, a few years ago, the Department of Fisheries and Oceans has been transferring responsibility for fisheries resources from one group to another, to the tune of hundreds of thousands of dollars. I do not wish to debate whether or not this was the right decision to make, that is another issue. What is happening, is that one group is loosing its resources. This group was never consulted, except for the quota holders who are reimbursed when the permit is bought and are probably quite happy about having received considerable sums of money. But the communities that contributed to the development of the industry over almost one hundred years in some cases have been completely ignored in the decision and many of these are Atlantic Acadian communities.
As the minister who is responsible for these files, can you tell us if there should not have been at least some basic consultations with these communities in order to determine what impact can be caused by departmental decisions?
Mr. Cotler: I will try to answer your question and my officials can add their comments with respect to this particular framework. In our system, the public service ensures continuity and official languages are no exception. The Official Languages Act — and this involves the matter of consultations — provides for important institutional roles for communications, services and the promotion of official languages. The public servants are fully involved in that area.
That said, the government has the best coordination and integration mechanisms for official languages programs, in order to ensure that we have a longer-term horizontal outlook. It's a matter of coordination. It's a matter of determining what level of consultation is desirable according to the situation. The key departments have an assigned role in the accountability framework. They are supported, in the public service, by a committee of deputy ministers which has the support, in turn, of officials. So we can say that the Department of Justice and the deputy ministers have a series of commitments that provide better coordination and integration mechanisms.
[English]
Senator Comeau: Since 1999, Mr. Minister, hundreds of millions of dollars worth of resources have been physically taken from one community. What made these communities — their livelihood, their way of life — has been removed. Let us put aside the question of doing it for the greater good of another group, which is what the Marshall case was all about, in order to respond to what was perceived as a wrong over many centuries. Be that as it may, once the livelihood of the group was removed, the only beneficiary out of that group was one individual who held the licence. The rest of the community that had invested in that community was never consulted as to the impact that the government decision would have on them. The only person who was consulted was one licence holder.
What I am suggesting to you, Mr. Minister, is that the action plan as proposed by then Minister Dion has not been followed. It basically states that, if a government department does something that impacts on our official languages' communities, it has a responsibility to at least consult — I am saying ``at least,'' as a minimum — that community, and to take some kind of action to mitigate the damage it is doing to that community, even though it is doing it for what it perceives to be a greater good or to fix a problem that was elsewhere.
I am not sure if the response that you gave me went directly to the area that I wanted to deal with.
Mr. Cotler: With regard to the case of which you spoke specifically, I do not have the institutional memory that can assist you in that regard. I will, therefore, ask my officials if they can assist.
However, on the consultative aspect, and I am speaking of the general principles related to access to justice in both official languages, as I indicated, we sought to expand and improve our consultation mechanism by setting up an advisory committee to study matters relating to justice in both official languages. This committee acts as a liaison between stakeholders from the legal community and the official languages' minority community.
As I indicated, the committee met for the first time in February 2004. Two subcommittees have been created under the umbrella of this advisory committee. One is a subcommittee on access to justice in both official languages, and the other advisory subcommittee, in terms of community components, which would relate to this more particularly, will meet for the first time in February 2005.
I am not sure whether the issue you are referring to, the allocation of resources, is within the context of what we are discussing today, because I am not sure that it has a linguistic dimension to it.
Senator Comeau: That is where I was leading. Tell me if I am wrong in my perception of the action plan. If governments take action that could do harm to linguistic communities in a minority setting to the extent where people have to start moving out, the community loses its viability. The Acadians in this case had to start moving out because their jobs had been taken away. My understanding of the action plan, and certainly the responsibility code, is that the government will consult with that community.
Mr. Cotler: I will tell you why I made the remark that I did, and then I will turn it over to Mr. Tremblay to answer specifically. With regard to the question of the Marshall case with regard to Aboriginal peoples, and following more recently from the Taku River and Haida cases, there is now a duty on the part of the government to consult Aboriginal communities in matters relating to, for example, resource management and land management claims, where an Aboriginal right has been established. I am getting to the point. I know what you are asking.
Senator Comeau: The Aboriginals have been consulted.
Mr. Cotler: That is correct, not only with regard to where the Aboriginal right has been established, but also the honour of the Crown where the Aboriginal right is even being asserted. With regard to the particular linguistic aspect, we have now set up, as of February 2004, a consultative mechanism to deal with that issue. Therefore, there would be a convergence with regard to the duty to consult on overall resource issues and land management claims.
With regard to the particulars of the linguistic issue as it applies within the framework of our two subcommittees to our advisory consultative committee on justice in both languages, not having the institutional memory, I will ask Mr. Tremblay to answer.
[Translation]
Mr. Marc Tremblay, General Counsel and Director, Official Languages Law Group, Justice Canada: The minister has explained that when it comes to justice, our responsibilities are clear and quick. We do what has to be done in order to improve the program, the methods for consulting with the public in order to provide access to justice. This allows all of those who ask for it, regardless of the rights that they are seeking and regardless of the type of activity, to make themselves heard by representatives of Justice Canada. They can benefit from their legal advisors, their legal association which is funded by Justice Canada to discuss with their colleagues here at the table and their teams and then report to us.
It is a system of oversight. That is one of the Justice Department's spheres of activity. That is what Suzanne Poirier and her team do. I have a relative hold on the legal advisors within the Canadian government. In each of the departments, including Fisheries and Oceans, there are departmental legal services that work for their respective departments and provide advice. Within the accountability framework — our mandate is described within the framework — I made my colleagues in the legal services branch aware of the existence of this accountability framework. I explained that as legal counsels, they would have to wear their language antennae when their clients launched an initiative. When we have this type of file with a number of mechanisms to sensitize people and make them aware of concerns, of media sources, of hot issues, of reports to the Official Languages Commissioner, everything that we call the public environment, all of this makes the legal counsel aware of these files. It is more than Justice Canada, it is our sphere of activity. That is how we can learn and advise our clients.
Other departments share the responsibility for implementing this accountability framework, including Intergovernmental Affairs, the Privy Council Office, where they advise the Minister responsible for Official Languages, and the Department of Canadian Heritage, including the Public Service Human Resources Management Agency of Canada.They are key departments. Together we have a broader overview of the official languages issue.
Our theory is that we spread a net that can catch most of these files. Some fish are too small, to use your fishery analogy, and they fall through the net, but that is not the end of it, which shows you how the accountability framework operates. I was made aware of something this evening that, up until now, was not on my radar screen. I will go home and call my colleagues at Fisheries and Oceans and encourage them to take a look at this issue with their clients. This will eventually make its way through the department, taking the route that I have described, through the deputy ministers' committee, the departments that are jointly responsible for official languages, so that enlightened decisions can be made. It is not a matter of linguistic interests trumping all, in every case, but rather a matter of making the right decisions with all available relevant information.
Senator Comeau: I cannot ask for more. Thank you.
The Chairman: The question was relevant and the answer quite complete. I would like to inform senators that the minister will have to leave at 6:30 p.m.
Mr. Cotler: I would be pleased to stay until 6:30 p.m., except that I had to leave the cabinet's Operations Committee, and I assure them that I would be back at 6:000 p.m.
I could perhaps stay five more minutes, but I am being asked to return to that committee meeting.
The Chairman: Could the officials stay with us?
Mr. Cotler: I would be pleased to come back another time, but today there are some priorities that I simply cannot avoid.
[English]
The Chairman: I would encourage my colleagues to put specific questions arising out of the minister's presentation while he is here to deal with them.
Senator Buchanan: Thank you, Mr. Minister. I will not take very long because I am not bilingual. The reason I am on this committee is to learn to be bilingual, and I hope that my colleagues will assist me, although one of them, Senator Comeau, has been trying for a long time, unsuccessfully.
I want to make one comment. I do not think Senator Comeau got the answer he was looking for. I know the problem also. It is not confined to Nova Scotia; it is also evident in New Brunswick.
I am interested in two things you talked about.
Mr. Cotler: Perhaps I could mention the operations committee.
Senator Buchanan: Do that. I want to discuss legal aid. I was very much involved in legal aid in Nova Scotia. I was the first Director of Legal Aid back in the 1960s when we started the volunteer legal aid system in Nova Scotia where all of the lawyers, members of our bar, volunteered their time. Unfortunately, there were about 400 or 500 lawyers, but only about 50 of them got involved. However, but we did start it.
I was also very much involved in legal aid in the late 1970s and through the 1980s when we passed legislation that extended the legal aid system. During my years as premier, we extended it in the whole system in Nova Scotia, creating Nova Scotia Legal Aid. We now have Nova Scotia Legal Aid and Dalhousie Legal Aid.
I am interested in your comments about legal aid because it is extremely important in our province and in other provinces. It is becoming much more important as far as the francophone Acadians of Nova Scotia are concerned and other francophones in Nova Scotia.
I want you to explain again, what you mean when you say that your department will now be getting much more involved in the forms to be used in legal aid, and in assisting in legal aid trials for francophones.
Mr. Cotler: As you know, we have renewed legal aid in matters of criminal legal aid in your province, and we have the civil legal aid, and that is within the jurisdiction of the provinces, both for the delivery and administration of services but, of course, we seek to assist where we can in that regard.
I share your concerns. I began as a poverty lawyer. My first professional involvement was in the Pointe St-Charles Community Legal Services in Montreal, in this regard, and I taught poverty law and legal aid matters at McGill. This is an issue that concerns me very much in a philosophical and an operational manner.
We set up an investment fund to foster approaches to respond to unmet needs in criminal legal aid and to civil legal aid. That is, through an innovative approach. In other words, to receive funding over the three years of the strategy, which is 2003 to 2006, each jurisdiction prepared a three-year business plan that included a provision relating to official languages. We responded with an evaluative approach with regard to those applications in matters of legal aid.
A number of legal aid initiatives are now in place as a result of these investment fund resources.
Some of these projects include information services that have been expanded to include services in both official languages, bilingual application forms for legal aid and the provision of duty counsel services in both languages to assist, as well, at the trial level.
As to the operation and application of these things, I will ask my officials, Ms. Poirier and Mr. Tremblay, to add something specific as to how these things have been working in practice.
Senator Buchanan: Ms. Poirier, are you a Nova Scotia Acadian?
Ms. Suzanne Poirier, General Counsel and Director, Francophonie, Justice in Official Languages and Bijuralism, Justice Canada: Yes, in about 1600, Jean Paul Poirier arrived in Port Royal.
Senator Buchanan: I am thinking of Mr. Justice Poirier.
The Chairman: Was that it, Senator Buchanan?
Senator Buchanan: Yes. She was going to comment.
The Chairman: I thought you were talking history.
Ms. Poirier: I am not responsible for legal aid in the department, but I want to make a comment about what the minister just said. A study in legal aid was conducted that is pretty similar to what was done with respect to access to justice in both official languages, the environmental scan that this committee studied before. Yes, they are cost shares agreements, and it is not easy to impose those on provinces. One of the solutions was the setting up the investment fund. The provinces, though, are presenting the projects and carrying them out. Everything that the minister listed is carried out by the provinces, not by us. We provide the funds, but they do it themselves.
Senator Buchanan: I have another question, but I will let it go until a later time when the minister is here. You commented on coming together of the Quebec Civil Code and the common law. I am most interested in that subject.
The Chairman: We had a debate in the Senate on that. We should stick to official languages.
[Translation]
Senator Chaput: My question has to do with the way in which judges are appointed. We know that there are 16 advisory committees responsible for reviewing the competency of candidates for these positions in Canada. I sat on one of these committees in Manitoba for three years before I was appointed to the Senate.
When people are appointed to one of these committees and you name the chair, is this individual informed that it is important to have competent candidates who, all of the other things being equal, are bilingual? The word ``bilingual'' is on the questionnaire and candidates are required to put an appropriate checkmark there, but that is as far as it goes. For example, it is important for a minority community to have a family court judge. Could some positions be designated bilingual at some point? When members of these committees are appointed, would it be possible to ensure that these individuals representing the francophone community are also able to defend the interests of that community?
I was at a loss on that committee; I am not a lawyer, so I do not have the necessary knowledge, skills or vocabulary. When I had to express my views, my arguments were not as solid as those of others who had studied law for however many years and were accustomed to making arguments in order to win their case. I thought that I did not represent the interests of the francophone community as well as I might have. I put these questions to you knowing very well that you select candidates from a list recommended by these 16 committees in Canada.
Mr. Cotler: Thank you for this question on access to justice. I will start by speaking about the advisory committees. It is important for us that members of these committees reflect the communities and that, as far as possible, there be a francophone presence on them in provinces such as Manitoba. We consider it very important that the principle of diversity be reflected in the members chosen to sit on these advisory committees.
You asked a question about designating bilingual positions. The number of judicial positions is a matter that comes under provincial jurisdiction. The provinces decide on how many judges there will be. In some jurisdictions, there may not be enough bilingual candidates to fill the number of positions that have been designated bilingual. That is why I invite the associations of francophone jurists to encourage their members to apply for these positions.
I should add that in all my consultations with the chief justices, I asked them to state their needs regarding bilingualism, particularly for minority communities. I encourage them also to identify bilingual candidates.
Bilingualism is one of the criteria used in assessing candidates. This is not simply an option, it is an evaluation criteria and the report to the minister refers to the candidate's linguistic abilities. The minister will look into the matter and ensure that the candidate is indeed bilingual, particularly in cases where such a need has been identified. But perhaps I will ask my legal advisor, Marc Giroux, to add something further.
Mr. Marc Giroux, Judicial Affairs Advisor, Minister's Office, Department of Justice Canada: I must tell you that we heard about you from some people in the francophone community, who told us about your experience on the advisory committee. It would be useful to hear more of your comments. Just to complete some of the points made by the minister, as you know, there are seven members on the committees. Of these, some represent the Chief Justice, the Attorney General for the province, the Canadian Bar Association and the regional bar association. We ask these entities to suggest the names of individuals who could sit on these committees. The minister wants francophone representation on the committees as far as possible, and in some cases, we will ask francophone jurists associations to sit on the committees. With respect to Manitoba, for example, we know that there is a need for bilingual judges in the family division, and at the moment, although there are positions vacant in Manitoba, there are none at this time in the family division. However, the minister is very aware of this need.
[English]
Senator Jaffer: I am also most concerned about two issues. I have been involved in legal aid issues in British Columbia for many years and the challenges that poses. As you know my province has no requirement to provide legal services in both official languages at the provincial level. Obviously, criminal proceedings are still required to be available under section 530 of the Criminal Code. This creates a strange situation where a person can get legal aid services in French but your trial cannot be in French. When I read the environmental scan that lead to the creation of the support fund, I found there were serious concerns raised in British Columbia. Among these it was noted that — and I am not proud of what it says — in British Columbia there is a serious prejudice against French Canadians. They are afraid of being regarded badly. That is the view of some of the actors in the judicial system.
You told us that forms will be provided in French. I am happy about that, but what kind of monitoring will there be with the provinces and how will the services be provided?
To follow up what Senator Chaput was saying on judges, when I was in full-time practice we only had one Supreme Court justice in British Columbia, who would do French trials. I am not sure if we have anyone now. There is a real gap in services provided in British Columbia, and I would like to hear your views on it.
Mr. Cotler: Let me begin by saying, it is not that I am in a rush, it is because the House is rising that the operations committee seems to be in a rush. Let me say the implementation of the language provisions in the Criminal Code to which you refer is regarded as a priority of the Department of Justice. In addition, almost 60 per cent of the budget that is devoted to the department in the Action Plan for Official Languages is designated to ensure compliance with the two official languages regarding the two statutes that I referred to earlier, the Statutory Instruments Re-enactment Act and the Contraventions Act, in terms of our agreements with the provinces.
In the matter of British Columbia, I have had discussions with Mr. Plant, the Minister of Justice and Attorney General of British Columbia. The province actually wants to pull out of the whole agreement at this point because of the pressures they are feeling there and because of the particular dynamics going on in British Columbia in matters of administration of justice, which I will not go into. We spoke to them and acknowledged that there are increased pressures in matters of refugee and immigration, civil legal aid concerns. We said that the innovation fund we have could sustain funding with respect to those areas or in other areas requiring legal aid. However, those two have emerged as compelling areas, both because the caseload has been rising and because legal assistance is necessary.
We said that we could use this innovation fund, which I referred to earlier, to help subvent delivery of legal services in those areas — immigration and refugee civil legal aid — as well as in other areas. Of course, this is contingent on maintaining our overall agreement with B.C. in matters of legal aid, which is, at this point as I am speaking to you, under discussion, if I can put it that way.
We hope the agreement will be maintained and that, within the framework of the agreement, we can augment specifically the support system with regard to legal aid services on both the criminal and civil level through the application of the pilot projects from the innovation fund.
Senator Jaffer: May I make one suggestion? I am pleased with what you have been saying, but one of the things I found when practising is that often francophones are not well-informed about their rights because there is no policy to actively offer the services in both official languages. If I may respectfully say that if the service is there, the people need to know the service is available. If the service is there and people do not access it, then we are left with the wrong impression that people do not need it; so we need to inform people of it.
Ms. Poirier: I think the point you just raised is very important. We do focus on the active offer of services. We do not impose it on provinces, but we work with them. We have funded many projects that address that active offer of services, although it is not only the governments that have to actively offer a service. We are working on the demand. It is a priority for us and many of our projects are aimed specifically at that issue.
Senator Jaffer: Minister, one thing that I have always thought would be an asset would be to have a mobile legal service — especially to deal with criminal matters — where we have prosecutors, defence counsel and judges who speak good French so that, if there is an inadequate demand on an ongoing basis, people who need the service can get the best service. My son, who is fluent in French, often tells me that francophones are not getting good service. We may want to look at that.
Mr. Cotler: That is an important suggestion. As I indicated in my opening remarks, part of the innovation fund is intended to expand information services in both languages. We have conveyed that in our discussions with my counterpart, the Minister of Justice and Attorney General. We will revisit that in the course of the FPT meetings in January.
On your other point, we are exploring what we call the interchangability of judges so that where you have, for example, in British Columbia, a hearing where there is no bilingual capacity, but a bilingual capacity is necessary for purposes of that of hearing, a judge would be brought in from Quebec to British Columbia.
Interchangeability is something I have started to discuss with the judiciary and with the Attorney General to see if we can work out a framework whereby we can expand the access to justice in both languages with the interchangeability approach. Thank you for raising that matter.
Senator Murray: I need put only one question to the minister. I may have several for the officials, assuming they are staying behind.
Minister, what is the position of the government with regard to Senator Gauthier's private member's bill, which is now before your house, the one that would make justiciable, I guess is the word, Part VII, section 41 of the Official Languages Act?
Mr. Cotler: I am a long-time admirer of Senator Gauthier, that is, from the time I first worked here as a special assistant to the then Minister of Justice and Attorney General, John Turner, in the late 1960s and early 1970s. I met with him on several occasions since I became Minister of Justice and Attorney General, both on these matters, generally speaking, because I respected his commitment. That is why I wrote the chairman a letter on the occasion of his retirement.
With regard to his particular bill, I just had a discussion today with my fellow ministers on it. We share the basic principles that are set out in Senator Gauthier's bill, and it is our intention to support that bill as it moves over into the House particularly respect to the basic principles, which are the enhancement of promotion and protection of both minority languages and, in particular, access to justice.
As to the particularity of the justiciability issue that you mentioned, that matter is currently before the courts, and we are awaiting their disposition of this issue. The view we have taken is that the framework for the Action Plan for Official Languages allows us to do, by way of —
[Translation]
It is a complete commitment for the development of the official languages.
[English]
— to achieve the very objectives of Senator Gauthier's bill, without creating a sense of legal obligation that may be difficult for a number of reasons to implement, both financial and otherwise.
We want to work toward the objectives in Senator Gauthier's bill. I cannot respond on my own on this. I know that you had the Minister of Canadian Heritage before you, and my other colleagues are engaged in this.
We are discussing this with a view to supporting the bill and supporting the main principles of the bill, and looking at the means by which we can implement the objectives that Senator Gauthier had in mind.
Senator Murray: Will it probably be referred to committee?
Mr. Cotler: I think it will be referred to committee, yes.
The Chairman: Senator Murray, I would ask you to bide your time with the officials. I will recognize you for the officials. I want to give Senator Léger an opportunity to put a question or two to the minister before he leaves.
[Translation]
Senator Léger: Good evening, I am pleased to meet you. I would like to know whether there is a shortage of bilingual judges and lawyers in New Brunswick. Those working there at the moment are tired out from running to Caraquet, Edmundston and elsewhere, because there are not enough of them. Is the same true nationally? What are your selection criteria for bilingual individuals, because law is more than just a technique, words have a profound importance. It is essential that clients be understood properly. What progress have you made in this regard to date?
Mr. Cotler: First of all, we want to table a bill with amendments that will deal specifically with the problem of the shortage of staff, not only for New Brunswick. For 20 years New Brunswick has been asking for more judges, particularly in the family court. For the Superior Court and the Court of Appeal, we hope to table a bill to deal with the shortage not only in New Brunswick, but elsewhere in the country by March 2005.
I'm going to have to leave. I will ask Marc to answer your second question. I would like to thank the senators for their attention today.
The Chair: Before you leave, Mr. Minister, on behalf of the committee, I would like to thank you for appearing before us today. We will certainly take you up on your offer to appear before the committee again. I had at least 10 questions to ask, but we ran out of time.
Mr. Giroux: I will try to answer your question to the best of my ability. There is definitely a shortage of judicial candidates nationally. To be honest, for New Brunswick, I would have to look at the figures to find out how many candidates are bilingual. Nationally, there is no doubt that there is a serious shortage of bilingual candidates and we encourage the associations of francophone jurists in the various provinces to put forth the names of bilingual candidates for judicial appointments.
In New Brunswick, the Chief Justice is bilingual. Last year, a bilingual candidate was appointed to the Court of Appeal. I do not know whether any progress has been made in finding bilingual candidates. We would perhaps have to check with the people from the office of the commissioner of judicial affairs responsible for candidate assessment. Some progress has been made with respect to the number of new judges appointed who are bilingual. Since the minister was named to his position, he has appointed many bilingual judges. Proportionally, the number is much higher than the number of bilingual judicial candidates.
Senator Léger: I was referring to the national level. I gave New Brunswick as an example. Compared to Manitoba and British Columbia we are lucky. That is why I wondered whether any progress had been made. You say that overall, things are better.
The reason why no one is coming forward is that there are no bilingual candidates. If people are not bilingual, they do not apply. How can we make people understand that the word ``bilingualism'' does not mean that one is a dictionary? I am pleased that some progress has been made. We cannot force people to be bilingual.
I used to be a teacher. When physics teachers had learned everything they knew from books in English tried to speak French to us, things became rather complicated. I imagine the same is true for judges.
Are courses in the common law and civil law increasing in number at the University of Moncton and the University of Ottawa? The minister referred to McGill University a little bit earlier.
Ms. Poirier: When we talk about the shortage of bilingual candidates, whether francophone or anglophone, the programs at the University of Moncton and the University of Ottawa, and all their graduates will inevitably help us to correct the problem.
Senator Léger: Good.
Ms. Poirier: These programs certainly cannot hurt. As an aside, I know that the University of Ottawa has submitted a project to the department which has not yet been approved, but which will try to analyze what happens to the graduates of the common law in French program. Where do these people go? Do they work in French? Are they making a difference? Another one of our objectives is to work with the universities to see how we can assure that there is a pool of people who can provide services in the minority language.
Senator Murray: I assume that the level of linguistic ability required for judges is very high? It is not as though we were hiring a public servant with passive bilingual skills. Judges must be perfectly bilingual, otherwise they cannot preside over trials.
Mr. Giroux: The question we ask candidates is not whether they can speak or write both official languages. The question is: Can you preside over a trial in the other language? That is a higher criterion than simply requiring that someone speak a little French and have taken some courses. When the candidate says yes to the question ``Can you preside over a trial in both languages?'', we expect him or her to have a fairly high level of ability, and that is what the committees are there to ensure.
[English]
Senator Murray: I know quite a few Anglophone judges who do take French courses. There is a school for judges, just as there is for senators and MPs. Do you follow what is happening in these courses? Do you know anything about them?
Mr. Giroux: I certainly know the Commissioner for Federal Judicial Affairs is active in having judges take those training courses.
Senator Murray: Are those courses producing judges, who can preside over a French trial?
Mr. Giroux: In certain cases. I have some anecdotal evidence. I am thinking of an example from Saskatchewan where that has certainly worked. I would not be able to speak to the overall success of the program.
Senator Murray: Our briefing notes indicate that the Fédération des associations de jurists d'expression française de common law has made some recommendations about bilingual judges and so forth. Three are mentioned here. One is that a mechanism be put into place to evaluate the bilingualism of candidates for federal judicial office. I do not know whether that could be done or how. The second recommendation, however, rather appeals to me, but I may be missing something. It is that a minimum number of positions in each province or region be designated bilingual. I presume they mean judicial positions. That would not take too much science, would it?
[Translation]
In light of the circumstances in each province, in consultation with the Attorney General or the Chief Justice of the province, could the federal minister set a certain minimum number of bilingual judges that must always be maintained?
Mr. Giroux: In that regard, the minister said earlier that the provinces are responsible for the number of judges and the designation of judges.
Senator Murray: So there is no system in place at the moment.
Mr. Giroux: There is no limit on the number of bilingual judges. As the minister said earlier, in some locations, it would be difficult to have a pool of candidates large enough to meet this need.
Not having a judge in a particular region or province does not prevent the Chief Justice from designating one of the judges to sit in a region where a need has been identified.
[English]
Senator Jaffer: The minister said he was looking at judges being mobile. I do not think that is enough. Having been in the system, I think that having only a knowledgeable judge does not cut it. You need a prosecutor and defence counsel who can also speak French. By only providing a knowledgeable judge is not providing effective services. I have seen situations where the defence counsel was not up to scratch. That is a disservice to the person who is charged.
Ms. Poirier: You are absolutely right. We have two projects in Western Canada and British Columbia. Before we approve the projects we want to make sure that, when we are talking about linguistic training, it does not apply only to judges, that you have all the interveners in the system.
Following on what Senator Murray was asking, I would ask: Is it realistic? Can you train a judge sufficiently in a second language to preside over a trial? I do not want to say anything about what the Bureau du commissaire a la magistrature is doing, but I know what we offer the projects that we support. We do not pretend that we will take someone who is unilingual and that the person will manage to preside over a trial. We take someone who already has knowledge of the language but needs the tools, needs the jurilinguistic training, the formation linguistique de pointe, but we do not start from scratch. We would not approve projects like that.
Yes, you are absolutely right when you say that it has to touch all the interveners in the system.
Mr. Tremblay: That is why the Action Plan on Official Languages begins with more funding for second language training across Canada for kids, not adults who are judges and lawyers. It also provides for minority language instruction in English in Quebec and French outside of Quebec. You have to address these issues holistically, which was the idea behind the action plan.
[Translation]
Senator Chaput: I have a few more comments to make about the shortage of bilingual candidates. I do agree that there is a shortage, but it is not all that serious for the following reasons: many young lawyers can argue their case in court in both official languages.
The problem has to do with the fact that since bilingual francophones started much later, they do not have enough years of experience, and that is an important criterion.
I would like to make a few suggestions. The minister chooses from the list of candidates recommended by the committees. If he also got a list of bilingual candidates who were on the committee's initial list, but did not make it to the final list of recommendations, this could be helpful to the minister in revising the list of candidates that reach him.
It is very difficult to weigh the years of experience against bilingual ability. More often than not, bilingual candidates are not recommended because of their lack of experience.
Mr. Giroux: In Manitoba — I would have to check this with the Judicial Commissioner — our calculations show that approximately one judicial candidate in 10 is bilingual. We know by heart the list of candidates who are recommended and bilingual in Manitoba. As to experience, we should consider in some cases — and we may do this for other categories of candidates — that rather than appointing an older judge, we should appoint younger ones if they can meet a particular need.
With respect to candidates not recommended by the committee, ministers of justice generally do not go beyond the list of candidates recommended by the committee. As you can guess, legally, there is nothing to prevent them from doing that. This would be something to consider in some cases, except that this naturally creates other problems, which I do not need to explain to you.
[English]
Senator Murray: While you are looking it up, I know what I am going to ask. It is a question that probably should be directed to the Prime Minister, but one of you can volunteer to speak on his behalf.
It says in our briefing notes that, under the accountability framework contained in the action plan, the Minister of Justice is required to examine the initiatives, programs and policy approaches of federal institutions likely to influence the official languages.
Why, when we now have a minister whose responsibility seems to be one of coordination and oversight, overview, is not that responsibility to examine an issue of federal institutions, why is that not with Mr. Bélanger rather than with a portfolio minister? Is it because the Prime Minister thought Mr. Cotler was a safer pair of hands or because he thought Mr. Cotler was underemployed and needed more to do? I am just suggesting some possible avenues for you to go down if you would like to do that.
The Chairman: A brief political answer, Mr. Tremblay.
Mr. Tremblay: It will not be a political answer, I can assure you. In fact, I would direct you to the paragraphs in the action plan.
Senator Murray: I do not have it in front of me.
Mr. Tremblay: We will be happy to provide it to you if that is help. An administrative mandate was given by the Prime Minister and confirmed in the action plan, to the Minister of Official Languages. This does not change the roles as they were established in 1988 in the Official Languages Act that are attributed to the minister responsible for the public service human relations agency, as well as Canadian Heritage for, respectively, Parts IV, V and VI on the one hand and Part VII on the other. You have these two ministers with institutional responsibilities. You also have the Minister of Justice who is legal adviser to all of these departments and agencies, and as well defends the interests of Canada before the courts.
Those are the key players. The action plan and the accountable framework set out the lead departments that support their ministers, including Canadian Heritage, Justice, the then Treasury Board Secretariat, which has now been replaced by the agency, and the Privy Council Office, as the department that supports the Minister for Official Languages. They are the key departments.
I goes on to state that lead departments combine efforts to ensure enhanced information sharing, compliance, and compliance of government documents, policies, programs and initiatives with this framework. It then goes on in the next paragraph to say that, in that context, justice has a particular expertise, a particular network, a particular view of the world, if you like.
While someone was asking a question, I drew a little map illustrating our little piece of the justice pie. As I explained earlier, the other departments bring their particular view of the world to these joint efforts.
The reason justice is mentioned specifically is because we were at the drafting table when this framework was mentioned, and there was a recognition that a more proactive role was required for the Department of Justice. Instead of waiting for requests to come its way, when it, through its environment, could identify files that needed some attention, it could proactively take it forward to the next level, to the committee of deputy ministers and, ultimately, to the ministers for their attention.
[Translation]
The Chairman: I do not know whether our witnesses can answer this, but I am going to ask the question in any case. In her 2003-2004 annual report, the Commissioner of Official Languages repeated a recommendation on which the government had taken no action. It had to do with reviewing the process for appointing judges to superior courts and federal courts in order to ensure these courts had enough bilingual judges.
In the context of the government's newly launched democratic reform, it may have to answer some questions from some House of Commons committees about the qualifications of candidates for advanced language training.
What is the situation exactly? Why did the government not act on this recommendation made by the Commissioner of Official Languages? If the witnesses cannot answer the question, I will ask it of the minister later.
Mr. Giroux: I could not answer with respect to what happened in the past. Moreover, the recommendation made by the Commissioner of Official Languages has not been set aside and remains one that the minister will have to consider. At the moment, he is focusing mainly on the appointment process for the Supreme Court of Canada.
Senator Comeau: The University of Moncton, the University of Ottawa and various colleges where anglophone judges become bilingual have been mentioned as possible sources of bilingual judges.
There is also a very large pool of individuals trained at English-speaking universities, but who are bilingual and are called upon to become judges in the Atlantic regions and in the west. Are you drawing on this pool of lawyers?
Mr. Giroux: We are not necessarily drawing only on the pool of lawyers from a particular university. A candidate may have studied at Osgoode Hall, the University of Manitoba or elsewhere — what matters is that he or she is bilingual. In the case where there is a real need for a bilingual judge on a court, particular attention could be paid to such a candidate.
Senator Comeau: Is there a box where candidates can indicate that they are bilingual in the list of qualifications?
Mr. Giroux: On the application form for magistrate candidates, there is a place where candidates can indicate if they are bilingual, provided they can hear a trial in both languages. When the committee reports to the minister, it takes care to state whether the candidate is bilingual or not bilingual enough.
Senator Comeau: I hope the minister will quickly analyze the process for appointing judges to the Supreme Court and that he will look at the appointment of provincial court judges as quickly as possible.
Senator Chaput: I would like to come back to the list of candidates given to the Minister of Justice. The minister does have the right to ask some questions.
There are 16 selection committees and 16 chairs of this committee. These chairs meet once a year and meet with the Minister of Justice. If I were the Minister of Justice and there were a shortage of bilingual candidates, I would ask three questions.
The first would be: During the last year, how many applications did your committee receive from bilingual candidates? The second would be: Why were these candidates not recommended by the committee? And finally: Was the recommendation made unanimously, or did some committee members disagree?
Mr. Giroux: It is true that the minister meets with the chairs of the committees once a year. In the report to the minister, there are comments setting out why candidates were selected or not.
The Chairman: The committee would like to thank the witnesses for appearing before us today and for their fairly complete answers. We may see you again when the minister comes back before the committee.
As you will remember, at the last meeting Mr. Georges Arès was appearing on behalf of the francophone and Acadian communities. During his presentation, he referred to some documents and I would like to ask for the committee's consent to annex them to the committee's proceedings.
Does everyone agree?
Some honourable senators: Agreed.
The Chairman: Without these documents, the presentation was less than clear. We will now adjourn and continue our meeting in camera. We have some serious matters to discuss. I would therefore ask everyone other than the clerk and our two researchers to kindly leave the room.
The meeting is adjourned.