Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 2 - Evidence for November 28, 2007
OTTAWA, Wednesday, November 28, 2007
The Standing Senate Committee on Legal and Constitutional Affairs met this day at 4:00 p.m. to study Bill C-13, an Act to amend the Criminal Code (criminal procedure, language of the accused, sentencing and other amendments).
Senator Joan Fraser (Chair) in the chair.
[Translation]
The Chair: Today we are beginning our study of Bill C-13, an Act to amend the Criminal Code (criminal procedure, language of the accused, sentencing and other amendments). This bill has been passed by the House of Commons and is now before us for study.
[English]
Our principal witness today is the minister who presented this bill in the House of Commons, the Honourable Robert Douglas Nicholson, P.C., M.P., Minister of Justice and Attorney General of Canada.
Welcome, minister. We are glad to have you with us. I know you have been before this committee before, and we are glad to have you back.
Mr. Nicholson is accompanied by Ms. Anouk Desaulniers, Senior Counsel, Criminal Law Policy Section, and by Ms. Renée Soublière, Senior Counsel and Litigation Coordinator, Official languages Law Group.
[Translation]
Welcome to you both.
[English]
Mr. Nicholson, we will ask you for your remarks and then we will turn to questions.
Honourable senators, the minister and his officials have an hour with us, so I would ask you to bear that in mind as you formulate your questions.
Hon. Robert Douglas Nicholson, P.C., M.P., Minister of Justice and Attorney General of Canada: Thank you for the opportunity to say a few words about Bill C-13, An Act to amend the Criminal Code (criminal procedure, language of the accused, sentencing and other amendments).
As you know, this bill was introduced as the former Bill C-23 in June of 2006, with a view to making a number of amendments to the Criminal Code that would address, among other things, some procedural anomalies, clarify the intent of certain provisions and correct some of the shortcomings that come to our attention in the law.
It is with the same intent in mind that we have reinstated Bill C-23, which is now before you as Bill C-13. To let you know, this is identical to the bill passed last June by the House of Commons. At the time of prorogation it reached second reading in the Senate. I am pleased, of course, that this bill is now before the committee.
This is not major criminal law reform; nonetheless, I think it responds to a number of concerns. Quite frankly, I think bills like this should come forward on a regular basis. When there are anomalies, efficiencies that we can enact, I would like to see them come forward and be passed.
There are a number of items in this bill that help the criminal justice system remain modern, efficient and effective. This, in turn, responds to the overall goal of the government, which is to tackle crime. As you know, that is one of the government's main priorities.
Many of the amendments in Bill C-13 have been developed in collaboration with justice system stakeholders, the Uniform Law Conference of Canada, the Commissioner of Official Languages, and of course our provincial and territorial counterparts. These stakeholders are all helpful in identifying areas in which the Criminal Code needs to be changed.
I think the provinces and the territories will be pleased. Indeed, I raised this matter with them at a recent federal- provincial-territorial meeting of justice ministers in Winnipeg.
[Translation]
Legislative changes were put forward in three main areas of the Criminal Code — criminal procedure, the language of the accused and sentencing.
Bill C-13 consists mainly of technical changes to the legislation, most of which are unrelated. The bill puts forward some substantial amendments as well.
[English]
I propose to highlight some of them for you today, and following this brief overview I would be pleased to answer any questions you may have concerning the bill. I propose to turn first to the criminal procedure amendments, followed by the provisions dealing with language rights, and then the proposed sentencing amendments.
With respect to criminal procedure, most of the amendments are technical and will, among other things, expedite the execution of out-of-province search warrants by allowing the use of current technology, harmonize and consolidate provisions dealing with the proof of service of documents, improve the process regarding the challenge of jurors to assist in preserving the jury's impartiality, and correct an anomaly by identifying the proper appeal route for judicial orders to seized property.
The criminal procedure amendments that are of a more substantive nature consist of the following: the reclassification of the offence of possessing break-in instruments, which is currently a straight indictable offence, thereby changing this to a dual procedure offence to allow the prosecution to proceed either by way of indictment or by way of summary conviction. Also, there are the creation of an offence for the breach of a non-communication order imposed on an accused who is remanded to pre-trial custody and a new election right for the accused as to his or her mode of trial where a preferred indictment has been filed against him or her where the Supreme Court of Canada orders a new trial.
I would like to talk briefly about the proposed amendments to sections 530 and 530.1 of the Criminal Code, which deal with language rights of the accused. As you may know, these provisions are the culmination of a long process that led to the recognition of the right of the accused to be heard and understood by a judge or judge and jury who speak and understand his or her official language.
These sections have been in force throughout Canada since January 1, 1990, and they set out in detail a series of rights and corresponding obligations that apply when an order is made that the accused be tried in his or her official language. The implementation of these language rights has, from time to time, created some legal and practical difficulties, as demonstrated by the case law that has developed over the years.
There have been many studies by the Commissioner of Official Languages, and the investigation by the department has also confirmed that there are still obstacles to full and equal access to the criminal justice system in one's own official language. The proposed amendments will help reduce these obstacles and solve the interpretation problems identified, thus contributing to the evolution of language rights in the criminal law context.
For example, one of the amendments would ensure that accused persons are better informed of their language rights. It provides that all accused, whether represented by counsel or not, must be advised of their language rights. As you know, information is passed on to those who currently are unrepresented, but if you are represented by counsel, there is no guarantee that your counsel would know of these provisions. That is not meant to be an indictment of the legal profession. I simply want to ensure that everyone is aware of that.
Another amendment would require the charging document to be translated into the official language of the accused upon request. That seems to be a logical complement to accused persons' exercising their language rights.
In order to solve a very real interpretation problem, another amendment would make clear that the rights and duties that arise when an order is issued for a bilingual trial are identical to those that arise when an order is issued for a trial in the language of the accused.
With respect to sentencing, the sentencing amendments include some changes that are substantive and others that are technical. These amendments seek to update the law by responding to current realities and clarifying the intent of certain sentencing conditions. The substantive changes would provide the court with the power to delay sentencing so that an offender can participate in a provincially approved treatment program. This is a big step forward and is one of the very important things that we are doing in this bill.
It would also order the forfeiture of computers and other related property used in the commission of Internet luring offences. In addition, it would order that a driving prohibition be served consecutively to any pre-existing order, and it would order an offender not to communicate with identified persons while serving a jail term. This seems to be an important step forward. It imposes a fine of up to $5,000 for a summary conviction offence where no other maximum fine is provided in a federal statute.
With respect to this last amendment, by increasing the current maximum fine from $2,000 to $5,000, prosecutors will have more flexibility to proceed by way of summary conviction and to seek a higher fine in appropriate cases.
The technical amendments to the sentencing portion of the bill include changes that propose to provide that where no maximum prison term is otherwise specified in the federal statute, the maximum term that can be imposed in default of a fine payment for an indictable offence is five years; to provide a Court of Appeal with the power to suspend a conditional sentence order until appeal from sentence or conviction is determined; to clarify that the minimum fine and minimum jail terms for first, second and subsequent impaired driving offences, such as operation of a motor vehicle while impaired and refusal to provide a breath sample, apply to the more serious situations of impaired driving causing bodily harm or death. That makes sense.
Regarding this last amendment, the bill would make it clear that repeat impaired driving offenders whose new offence causes bodily harm and death would receive a mandatory jail term and not be eligible for a conditional sentence of imprisonment. We have asked for that for a long time.
Before I conclude, I would like to inform the committee that since the reinstatement of Bill C-13, a need for a technical coordinating amendment has been identified, and a proposed amendment to address the issue will be presented to the committee at the appropriate time.
This concludes my remarks. I hope that those opening comments have been helpful. I am anticipating questions on this to which I would be pleased to respond with the assistance of my officials.
The Chair: Indeed, there are questions, minister.
Senator Andreychuk: I know there will be other speakers but I thought I would work with my assistant legal counsel, Senator Baker. The technical amendment, I presume, will be presented by someone. When we come to the Senate, we always look at the coordination, the implementation and the process, and I would be interested in seeing which one it is.
I want to zero in on two things. One has been raised by some service providers on the issue at page 2, clause 5. In clause 5, paragraph 202(1)(i) of the act is replaced by the following: ``. . . wilfully and knowingly sends, transmits . . . .''
The question posed to me by some service providers is this: Is there any intention of moving toward using this section in any way on the issue of offshore betting?
Mr. Nicholson: It would apply equally to onshore and offshore betting, and other provisions in the Criminal Code make that clear.
With respect to the technical amendments, a small one is coming. At times, technical amendments can be tricky to get completely correct at the time. We will make that available to you as well.
Senator Baker: Is it in this section?
Mr. Nicholson: No, it is not in this section. With my apologies, I reversed it. The senator talked about clause 5. I believe that you raised some concerns about clause 5, Senator Baker. I will respond to your concerns, and the officials can join in, about the operating section that states: ``. . . wilfully and knowingly sends, transmits, delivers . . .'' That would not create an onus on Internet service providers to monitor the information transferred. Those who unknowingly transmit messages containing this information would not be caught under this bill. That is the reply that I would provide to their queries on this.
Senator Andreychuk: Following up on that, we had a previous bill, Bill C-15A, where a similar issue was raised such that service providers had to meet certain standards in the way they produced their product, if I may call it that, and some accountability mechanisms were built into that. Their fear at the time, and as raised similarly with Bill C-13, was that this will add another onus. Will service providers, simply by having information transmitted that they do not catch in the normal course of the business, be open to the charge? In Bill C-15A, the Minister of Justice assured the Standing Senate Legal Committee that they would not be open to charge because of the words of condition ``wilfully and knowingly.'' The minister indicated that if providers were perpetrators of crime in any way, then they would fall into the ordinary citizens category and could be subject to a charge. However, simply by virtue of being a service provider, they would not be subject to charge. Is it the same under this new bill?
[Translation]
Anouk Desaulniers, Senior Counsel, Criminal Law Policy Section, Department of Justice Canada: Madam Chair, there will be no change in the situation. The clause in question broadens the types of communication whereby information can be transmitted, but it does not change the nature of the offence. It remains a specific-intent offence. The Crown will therefore have to demonstrate that the individual knew what he or she was doing and behaved knowingly. The individual may do something in the course of his or her daily commercial activities and may not have specific knowledge of the information that is being transmitted. The individual is merely transmitting the message. That amendment is not designed to make service providers responsible for supervising the content of the information on the Internet.
[English]
Senator Baker: In some of the charges litigated under the section dealing with gambling, convictions have been entered on the basis of wilful blindness and recklessness. Could you comment on that? You have said that if it is not done wilfully, then they would not fall under that umbrella.
We are looking for the intent of the government, because when a judge reads it, that is what he or she will ask. This is a huge change in the act. You have modernized the act, removed all of these ancient methods of communicating and now you have focused on the Internet. The intent of this change is to focus on the Internet, is it not?
[Translation]
Ms. Desaulniers: The objective of the amendment is to modernize the section, to bring it up to date with current communication methods. The intention of the government is not to target Internet service providers, but rather to continue to represent in an adequate and up to date way the communication methods that can be used to convey information for the purpose of betting. I should point out that the provision does not refer to ``gambling'' but rather to betting and bookmaking.
[English]
Mr. Nicholson: I would like to add that the wording is specific and intentional: ``wilfully and knowingly.'' You used the term ``reckless behaviour'' or ``acting recklessly.'' When you get a bill on the question of identity theft, you will see that we actually use the term ``recklessly'' to go beyond the wording here. We mean that for a specific purpose. In the particular bill, the person who is collecting other people's identification is reckless with it after it goes out the door. We do want to catch that, but it seems to me we are specific with respect to this piece of legislation, and we did not go further. We did not get into reckless behaviour in ``wilfully and knowingly'' provided that information.
Senator Baker: My argument is that you did not add ``wilfully and knowingly.'' That has been there since 1913.
Mr. Nicholson: We are including it, and we are updating the technology. That is the challenge we have.
Senator Baker: The intent of the legislation is to apply it to situations involving Internet betting, is that not correct?
Ms. Desaulniers: Yes.
Senator Baker: I have just repeated the words you used before the House of Commons committee. Convictions have been entered under this section. We have some case law on it. The case law shows that cases have been prosecuted in which wilful blindness forms the gravamina of the offences. Are you saying that because you are removing these things from this section that will apply to the Internet, wilful blindness and recklessness will not apply to the Internet?
[Translation]
Ms. Desaulniers: We have to be careful about the case law that has interpreted section 201. If you read the various offences set out in section 202, you will see that paragraph (i), which is amended by this bill, is the only one that contains the words ``wilfully and knowingly''. Care was taken here in particular to make this a specific-intent offence.
[English]
Senator Baker: The most recent case is the Supreme Court of Canada judging what happens on the Internet. There is a case from 2004: Society of Composers, Authors and Music Publishers of Canada v. Canadian Assn. of Internet Providers. What saved the Internet service providers was a provision made in the law in 1988 to exempt Internet service providers in the copyright law. It was on that basis that the Internet service providers were not held liable by the Supreme Court of Canada to make payments to our composers and music producers. There is no such exception for Internet service providers in this section of the Criminal Code.
What will this apply to? Why would you be making the change? Will it capture someone else? Who would this capture? Can you tell the committee why the change is being made and who are the people who will be captured who were not captured before?
[Translation]
Ms. Desaulniers: The change or the amendment is to cover individuals who use the Internet to convey information related to bookmaking. These individuals do so wilfully and specifically, in other words there is specific intent. However, the amendment does not target the service providers.
[English]
Senator Baker: Everyone who gambles on the Internet when it is operated from offshore will be prosecuted under this. Is that what you are saying?
[Translation]
Ms. Desaulniers: The amendment is about the transmission of information.
[English]
Senator Baker: The transmission of information includes the Internet service provider.
[Translation]
Ms. Desaulniers: It applies to people who do this wilfully.
[English]
Mr. Nicholson: It could. Whoever uses whatever technology for bookmaking purposes is included.
Senator Baker: Therefore this will, in effect, open the whole range of people in our society who bet on the Internet to charges under this section of the Criminal Code. It will apply not only to the people who bet but also to the people who transmit the information, because that is what this says. Transmission of the information has been defined by the Supreme Court of Canada as being an Internet service provider. The most recent case was Harper v. Canada (Attorney General). The Supreme Court of Canada said that the Internet constitutes a highly effective means of conveying information. What you are getting at here is the prosecution of those who convey information. If it is not, then the information in your bill is wrong. Your information notes at the beginning state: ``The enactment amends the description of the offence of conveying information on betting . . .''
With regards to Harper, who is the present Prime Minister of this country, the Supreme Court of Canada says that conveying information is information conveyed on the Internet.
Hal Pruden, Counsel, Criminal Law Policy Section, Department of Justice Canada: I agree with comments that have been given in answer already.
The intention is to retain ``wilfully and knowingly.'' That is the existing provision in paragraph 202(1)(i), and the intention is to modernize the means of communication.
Currently, individuals who bet on the Internet are permitted to do so under paragraph 204(1)(b) if they are private individuals not engaged in any way in the business of betting. Therefore, we are not trying to capture through this amendment people who choose to bet privately by telephone, by Internet or by any other means. We are not going in that direction. We are not attempting to capture Internet service providers, and that is why ``wilfully and knowingly'' is a protection for those individuals, even when we ensure through this amendment that other technologies besides telegraph and telephone are picked up.
Senator Baker: Who will you capture?
Mr. Pruden: Bookies in Canada today.
Senator Baker: Are there many bookies in Canada today?
Mr. Pruden: I do not know. You will have to ask police officials who investigate gambling offences, or those who have expertise in that area.
[Translation]
Senator Chaput: My question is about the examination or cross-examination in the official language of the witness. I do not think anyone is calling into question the right of the accused to be tried in his or her official language. My question is about the provision of the bill that states that the judge may allow the prosecutor to examine or cross- examine a witness in the official language of the prosecutor, and not that of the witness.
The prosecutor examines that witness in the prosecutor's official language. In a case such as that, would the court be required to provide the accused with interpretation services? Because that is not stated in the bill.
Renée Soublière, Senior Counsel and Litigation Coordinator, Official Languages Law Group, Department of Justice Canada: Yes, the Criminal Code requires that the accused by given interpretation services in such a case.
Senator Chaput: You say that the judge can order interpretation services for the accused in such a case. In your opinion, is that not in contradiction with the right of the accused to be tried in his or her official language?
Ms. Soublière: We do acknowledge that this is a derogation from that rule whereby trials are to be held in the official language of the accused. That is why the judge is given the discretion to allow this practice or not, depending on the circumstances. As you may know, an amendment was made when the bill was being studied by the committee of the House. It stated that the judge could authorize this only if the circumstances warrant.
The Chair: I have another question for Ms. Soublière. I had always understood that, at least in Quebec, any individual could use the official language of his or her choice in the courts. How can we reconcile that with the right of the accused to be tried in his or her language? Could I, as an anglophone, be required to testify in French or vice versa?
Ms. Soublière: I think this issue has been dealt with by the case law, particularly the decisions made by the Quebec courts. You are quite right when you say that in Quebec, for example, section 133 of the 1867 Constitution Act gives all individuals the right to the official language of their choice and the Supreme Court has confirmed that this right applied to everyone, including the judge and the others. However, when in sections 530 and 530.1, the accused is given the right to be tried in the official language of his or her choice, the right to a judge who will understand directly and the right to a crown prosecutor who will use his or her language, the case law has held that there is no incompatibility between the two provisions. The case law has held that these are institutional obligations and that it is up to the Attorney General to appoint prosecutors and judges with language skills and who agree to use the official language of the accused during the trial.
The Chair: Thank you very much.
[English]
Mr. Nicholson: It should be noticed, though, that when there is an order for a bilingual trial, the judge and the Crown attorney have to speak both languages.
Senator Jaffer: Minister, I first wish to commend you for looking at the rights of the accused in both languages. My question follows what has been said by the two senators before involving the issue of capacity. It is good to have the legislation, but I come from British Columbia and I am struggling. I hope I can bring this to your doorstep today.
Judges and prosecutors get training in French, but defence lawyers do not. It is a huge challenge. As you yourself said, the defence counsel has to tell the accused that he or she has those rights. It is good to have it on paper, it is good to have the law, but the challenge is to build capacity. In my province, few defence counsel speak the language. We had one Supreme Court justice who was very good at the language, and we are now struggling. If we are to take this seriously, we need to build the capacity. I would like to see a pilot project to train defence counsel. In addition — and I do not know how this would be done — we could look at ways to bring in bilingual judges from other provinces. It is a challenge, because they are not appointed in those regions, I understand. Otherwise, this is good on paper but does not work in practice.
Mr. Nicholson: You made several interesting suggestions, senator. I am very pleased that you are making those comments.
I was just at a federal-provincial meeting of ministers of justice. One of the issues I talked about was this bill. I indicated that in one sense we are trying to respond to what they want but they have to respond to the legislation that is before them.
The training of defence lawyers is not exactly within the federal sphere, but I would be pleased to pass along those comments. It is an interesting suggestion about judges who may be able to sit somewhere else.
We have come a long way on this. I was thinking about Senator Baker when he was talking about this. He will remember legislation that came through around 1990, which seemed to have general support at that time to move forward in this area. Indeed, in my own comments I said that this was part of the evolution. It is not perfect; there are always challenges and we have to be on top of those challenges, but it is another step in the evolution that started almost 20 years ago in providing fairness and equity for both official language communities in this country. I appreciate your suggestion.
Senator Jaffer: I have very little time, but while I have you here I want to talk about the treatment programs.
When I practiced, we had treatment programs for South Asian men who were in an abusive situation, but it is difficult to get those programs. I ask when you set up treatment programs in a multicultural community that they be sensitive; otherwise, they do not do the rehabilitation or the treatment we seek.
Mr. Nicholson: I appreciate that. One of the initiatives that you will have before you in other legislation is with respect to drugs. I am a big supporter of the drug courts that have been set up in a number of major cities across this country, because I like the idea of providing some sort of alternative to get people the treatment that they need, which is what you are saying. I hear what you are saying and I appreciate that very much.
Senator Jaffer: When you are looking at drug courts, I would appreciate it if you would look also at domestic violence courts as they exist in Alberta. They are much needed in my province.
Mr. Nicholson: Thank you.
The Chair: Senator Bryden has a five-second supplementary question.
Senator Bryden: It relates to the language of choice. I am referring to proposed new section 531, which allows a change of venue if one cannot have a trial in the language of choice. I feel a little discriminated against because you made an exception — the Province of New Brunswick. Is that because we are officially bilingual?
Mr. Nicholson: It is, senator. It is all set up in New Brunswick. That is the only reason why it is not included there.
This goes back to what Senator Jaffer was saying about having some alternatives and being able to move these trials around. Resources are a challenge. Your home province has this well in hand.
Senator Merchant: I have two questions. The first concerns clauses 23 and 24. Where a direct indictment is filed, which the government may choose to do, an accused loses his right to a preliminary inquiry. That is unchanged. When that happens, the accused is deemed to have elected a trial by judge and jury. The accused may then elect a trial by judge without a jury. Currently, the prosecutor's written consent is required to elect a judge without a jury instead, and prosecutors always give consent. The bill removes the requirement for consent, since prosecutors always gave consent. This is no change. However, if there is a direct indictment of an alleged crime punishable by imprisonment for more than five years, even if the accused elects trial by judge without a jury, the government may require a trial by judge and jury. I would invite the committee to amend the bill by removing the right of the government to require a trial by judge and jury. I will provide my reason for that suggestion, and I would like to know the government's justification for providing the power to force a trial with a jury.
First, I propose this amendment because the government ought not to force on an accused the expense of a trial by judge and jury. Such a requirement might drive the accused from his chosen counsel to seek legal aid, if eligible, because jury trials are so expensive.
Second, and more important, it strikes me that the only reason the government could want the power to force a jury trial is so that it could increase the chances of getting a conviction. For example, the accused in the Air India trial were thought by virtually everyone in the public to be guilty. Yet, a judge alone held that they were not guilty. I suspect that the government would have forced that case into a trial by jury in order to obtain a conviction. Any crime involving gory details, photographs of blood, multiple deaths —
The Chair: Senator Merchant, I think we understand where you are going. Perhaps the minister could respond.
Senator Merchant: Can the minister tell the committee what justifies giving the government the power to force a trial by jury?
Mr. Nicholson: It is not our motive to try to set up convictions; that is not what we are trying to do. The amendments before the committee respond to the challenges that we have in handling trials.
Ms. Desaulniers would like to comment on that.
[Translation]
Ms. Desaulniers: The suggestion to remove the obligation to get the Attorney General's consent before a re-election when the Attorney General has proferred an indictment came from a resolution passed at the Uniform Law Conference of Canada two years ago, if I remember correctly. The reason this resolution was passed, and for your information, this conference is attended by representatives of the provinces, the various bars, defence associations and judges, was that all the parties at the table could not see how the Attorney General could start by proferring an indictment which, as you say, would deprive the accused of his or her preliminary inquiry and furthermore force a trial by jury. It was thought that the accused should at least have the right to re-elect in his or her preferred type of trial. That is the reason for the amendment in clause 23 of the bill.
Clause 24 is merely a coordinating amendment. We are not changing the current state of the law, which actually allows the Attorney General in some circumstances — you were quite right in what you said regarding offences which are punishable by more than five years — to force a trial by jury. This is a very rarely used provision. When the Uniform Law Conference studied these provisions, it was actually surprised that some of them existed. They are used very rarely.
However, this is a residual power that the prosecutor has to prevent a party from re-electing late. For example, if under clause 23, a party wants to re-elect on the eve of a trial by jury, knowing that the prosecutor could despite everything force the party to have a trial by jury may perhaps encourage the party to re-elect beforehand to give the system a reasonable amount of time to adjust to the re-election.
This is a residual clause, and I do not think the Crown has any interest whatsoever in trying, for strategic reasons, to have a trial by jury or by a judge alone. I know of no reason for thinking that a verdict by one rather than the other is more valid. This is a residual clause that ensures the smooth functioning of the judicial system generally.
[English]
Senator Merchant: I think I have already stated to you that I would object to this.
My second question concerns minimum sentences. The government has taken away conditional sentences and house arrest. Jail is not for everyone. It does not correct all errant behaviour and the threat of jail does not stop people from behaving in certain ways. You have taken away the power of judges to show leniency and fit the sentence to the person who made the mistake. I would like your comments on that section.
Mr. Nicholson: Are you referring to the section on impaired drivers causing bodily harm?
Senator Merchant: Yes.
Mr. Nicholson: Many people think it a serious offence if someone is killed by an impaired driver and, therefore, the impaired driver should not be sent home but rather to jail.
In respect of minimum sentences, part of the role of the legislative branch is to set the parameters under which an offence should be treated. As a member of the House of Commons Sanding Committee on Justice, I was involved many times in altering, for instance, the maximum sentences. We are doing our outmost to establish guidelines, because some offences have become more serious in the minds of many just as some have become less serious as the years have gone by. It is incumbent upon those of us who legislate to set those guidelines. Minimum and maximum sentences are a part of what we do and, within that range, we leave it to the courts.
Senator Merchant: That means the person would be sent to jail.
The Chair: I would ask the minister if we might sneak a few extra minutes of his time beyond the stated time of one hour.
Mr. Nicholson: Yes, I believe so, because the bells are not ringing for the House. I have something else on but, by all means, I want to ensure that we get as much done as possible.
Senator Milne: Most of my questions have been asked, in particular by Senator Baker, but I would draw to the minister's attention clause 37 at page 14 of the bill, which states at proposed new subsection 732.1(6): ``For greater certainty, a failure to comply with subsection (5) does not affect the validity of the probation order.'' Subsection (5) contains an explanation of the conditions of the order. How on earth do you expect an offender to be able to obey a probation order if it has never been explained to them?
[Translation]
Ms. Desaulniers: Clause 37 provides for a number of obligations for the court, including that of providing a copy of the probation order. Unless I am mistaken, I believe the offender must actually sign the probation order. In addition, the court must explain to him or her the conditions and consequences for probation violations, and so on.
[English]
Senator Milne: That is quite clear, but subclause 732.1(6) says that a failure to do any of these things does not affect the validity of the order.
[Translation]
Ms. Desaulniers: If the court fails to explain a particular condition, the accused does have the written version of any probation order, which sets out all the conditions.
You know how courts proceed. Given the heavy case load, the idea is to prevent a situation where, if a court does not describe one of the conditions specifically and in detail, everything that is said could invalidate the probation. The idea is really to guarantee compliance with court orders if we want to avoid situations where orders of this type could be invalidated on a technicality.
[English]
Senator Milne: The technicality here is that under proposed subsection 731.1(5)(a), the court shall ``cause a copy of the order to be given to the offender''; proposed subsection 731.1(6) then states that if they do not comply with this, the validity of the order is not affected.
Mr. Nicholson: I guess it is a matter of in whose opinion is it done. I know what would happen. You would make the challenge on the probation order immediately to say ``one of those parts was not that well explained to me. Therefore the probation order does not apply to me.'' The consequences of that would be pretty serious. Most people would then make that claim and say, ``You did not get one of those sections right. You did not explain it to me well enough, and therefore it does not apply to me.'' I do not think we want to go down that road. It is still incumbent upon the court to take a very careful analysis. Various steps are set out: give a copy, explain the order, et cetera. However, if one of those is missing or does not live up to the expectations of the person sentenced, we would not want the person to walk away. Yet that is what would happen. They would be back in court.
Senator Milne: They could all be missing. Nothing there says that it applies if several of these steps are missing; it says if any of them are missing.
Mr. Nicholson: If individuals are placed on probation, they are expected to live up to the terms of that probation.
Senator Milne: I say again: They do not know it.
Mr. Nicholson: It is incumbent upon them to find out for themselves through their counsel to ensure they have it right. I am sure you have advised clients, as I have, telling them to make sure that they understand the probation order because the consequences of missing it are serious. The court sometimes has not done as good a job as it should, but, in general, we find that it works well.
Senator Milne: I have great concerns with this. I would have even greater concerns if I advised a client, because I am not a lawyer.
Senator Di Nino: I do not know about that.
Mr. Nicholson: That was a compliment, senator.
Senator Milne: I can read this and it states clearly that the court does not really have to do any of these. How can someone comply with a probation order if they do not know what it is?
Mr. Nicholson: It does put obligations on them. My reading is that the court shall give copies to the offender, explain the conditions, cause an explanation to be given for applying under this, take reasonable measures to ensure they understand the subsections, et cetera. Do we really want a situation where everyone who does not comply with a probation order will say, ``It does not apply to me because they did not explain it well enough''?
Senator Milne: That brings me back to proposed subsection 732.1(6), which states that ``. . . a failure to comply with subsection (5) does not affect the validity of the probation order.'' I have great concerns with that.
The Chair: I think the two sides of this argument are now clear.
[Translation]
Senator Joyal: I have a conceptual problem with the way in which the provisions of the bill deal with the accused's right to a trial in the language of his or her choice. I am having trouble reconciling section 133, which is about Quebec, with the provision that protects New Brunswick. In other words, in Quebec would people be less entitled to a trial in the language of their choice in the region where the offence was committed than the citizens of New Brunswick? That is my first question.
My second question is this: Does section 16 of the charter provide fewer rights than those provided by section 133 regarding language in criminal courts? From the way the bill is drafted, the Quebec Court of Appeal interpreted section 133 as binding as regards the accused's right to a trial in the language of his or her choice at all stages. However, what is being suggested in the bill is a limit on the rights of the accused to a trial in the language of his or her choice for some documents, in some circumstances and at a particular stage in the procedure. I am trying to reconcile the provisions of the bill with these three statutes on language in criminal proceedings — section 133 for Quebec, the exception to section 531 for New Brunswick and the way in which the Charter has been interpreted by the courts. Section 16 of the charter gives the Canadian government a responsibility to promote language rights, and not the opposite. When I read the provisions of the bill, particular clauses 18, 19, 20 and 21, I cannot help but conclude that the ability of the accused to use the language of his or her choice has been limited.
I must admit that I am having a hard time trying to decide how we should characterize these fundamental rights which, in my opinion, would give the accused the right to be charged and tried in his own language, and to be fully apprised of his rights in his own language, at all stages. I think that the bill, in its present form, could be subject to legal proceedings based on the interpretation given to language rights in clause 16.
I would like to ask for clarification on this point. I imagine that Quebec or other provinces have made representations that led you to conclude that these language provisions in the Criminal Code should be amended; or perhaps you were swayed by decisions brought down by the Federal Court or high courts in Canada which demonstrated that the Criminal Code provisions were unconstitutional and did not respect the spirit of the charter. If not, then I do not see why the provisions that are coming forward today would limit the right of the accused to be tried in the language of his choice.
[English]
Mr. Nicholson: You have covered quite a bit of territory, senator. Again, I think this is a step forward in the evolution of the rights of an individual with respect to a trial in both official languages. It is an evolution that started quite some time ago in this country. You said that you cannot get a hold of the whole of it or understand it, but I am urging you to do just that, to recognize that these are some clarifications that are sometimes needed. This an extension of the rights, and I think it is a very fair treatment. It is not the last word, but I think it is a step forward. Ms. Soublière can perhaps address some of your other concerns in detail, but those are my general comments.
[Translation]
Ms. Soublière: I will reiterate what the minister has just said. I do not understand how you can say that this will limit the language rights of the accused. On the contrary, in our opinion, this bill includes provisions to improve the language rights that already exist in sections 530 and 530.1. That is something to which the minister referred in his speech. All defendants will now be entitled to be advised of their language rights, whether or not they are represented by counsel. Currently, under the Code, the judge only advises unrepresented defendants of their language rights. With this bill, that right will be extended to all defendants. That is one example.
Also, a defendant will be entitled to ask for the translation of specific parts of the charges and information. That right does not exist in the Criminal Code at this time. Case law, particularly in Ontario, has shown that an accused has the right to a translation of those documents and this will be spelled out in the Criminal Code with Bill C-13.
The bill will also clarify an issue that restricted the language rights of defendants through clause 20(1), which will shorten the first provision of section 530.1
What we are doing is to clarify, once and for all, that the rights and obligations under clause 530(1) apply to both a unilingual and a bilingual trial.
At present, this introductory provision of clause 530.1, which sets out the relevant rights and obligations, makes no mention of an order for a bilingual trial. There is a reference to a trial in the official language of the defendant in order to facilitate his testimony, but no reference is made to a bilingual trial. In Canada, some courts have made note of this omission and have told us that the rights and obligations under clause 530.1 did not apply when a bilingual trial was ordered, which, in our opinion, makes absolutely no sense whatsoever, which is why we are clarifying the situation now.
In other words — and I could go on, but I do not understand how you can say that this will limit the language rights of defendants. As the minister has explained, we consider this bill to be a step in the right direction.
Senator Joyal: Did the Attorney General of Quebec ask for this extension, as you called it?
Ms. Soublière: We discussed these matters repeatedly with the provinces, and there was a consensus. The provinces are fully aware of this bill, including the amendments proposed at sections 530 and 530.1.
Senator Joyal: Was the Official Languages Commissioner consulted with regard to the drafting of sections 18 to 21?
Ms. Soublière: The Official Languages Commissioner was consulted as were the provinces. We also consulted the Fédération des associations de juristes d'expression française de common law, and its various associations. It was a very good dialogue. They were consulted. Perhaps you know that at the committee study stage, they expressed certain reservations with regard to some of the amendments. But they were generally satisfied with the bill, even though there were certain reservations. Members of the opposition tabled some motions reflecting concerns raised by the Official Languages Commissioner, for example, and the Fédération nationale des associations de juristes. We accepted most of these motions, and the bill was amended accordingly.
The Chair: Senator Joyal, as you know, we will hear from the Official Languages Commissioner and from the Barreau du Québec. Perhaps we can ask them those questions.
[English]
Mr. Nicholson: Senator Joyal, I had the matter raised specifically with all of the justice ministers at the table at the meeting in Winnipeg. This was the precise area of discussion. I indicated what the government is trying to do, although not in any detail. The consensus was that I was to move forward as expeditiously as possible. You will likely hear most people say that it is an improvement, a step in the right direction and that they have been asking for it.
Senator Watt: Along the same lines, I register that I have a great deal of concern, in particular for the unilingual Inuktitut people, but that is not my point.
Rather, I would like to comment on clause 31 at page 13 in respect of Nunavut, which states:
If a new trial ordered by the Supreme Court of Canada is to be held before a court composed of a judge and jury in Nunavut, the accused may, with the consent of the prosecutor, elect to have the trial heard before a judge without a jury.
Why does that apply only to Nunavut and not to Nunavik? Can we correct that and include Nunavik? It would seem fairly simple to do.
[Translation]
Ms. Desaulniers: Because Nunavut has a unified court, it can opt for a special regime under the Criminal Code. The Provincial Court and the Superior Court were merged into a single forum. So it is possible to choose this option because of the special provisions which apply to the system in Nunavut. It is strictly for that reason. There is no distinction between Nunavut and Nunavik. It is simply to ensure that the current provisions are consistent.
[English]
Senator Watt: I raise the question because Nunavik does not fall under the jurisdiction of Nunavut. This falls more under provincial jurisdiction. A special recognition with provincial governments was established on the basis of negotiations and reconciliations between the South and the North in terms of recognizing the needs and differences.
If it is good enough for Nunavut, then it should be good enough for Nunavik.
[Translation]
Ms. Desaulniers: I cannot compare the two regions, except to say that Nunavik is governed by the same rules of procedure which exist in Quebec, and in that province, there are Federal Court judges and Superior Court judges. There is no unified court as there is in Nunavut. There are no special rules of procedure for any part of Quebec, including Nunavik.
[English]
Mr. Nicholson: It would be a specific case of trying to make an amendment with respect to Nunavik at this time, and trying to reorganize the procedure within the province of Quebec. I do not think that is on, and I would not recommend it.
[Translation]
Senator Joyal: Ms. Soublière, let me give you an example. Section 19 introduces a new paragraph, namely 530.1, which is on page 7 of the bill. It is before you. This section creates the obligation to provide the accused with a written copy of the translated criminal information and indictment. But there is no obligation to provide the accused with evidence which may have been written in a language other than the language of the accused. But is this not an important factor in the right of the accused to have a trial and access to documents in the language of the accused?
Ms. Soublière: You are right to say that section 19 does not apply to evidence. It applies to the criminal information and the indictment. However, as it now stands, there is a language provision in the Criminal Code, section 841.3, which requires that the pre-printed part be available in both official languages.
As it now stands, the handwritten part can be written in the language of choice of the person who signs the document, which explains the proposed amendment, namely to provide the accused, upon request, with a translation of the handwritten parts.
As far as the evidence is concerned, it is not covered by the amendment. Based on the jurisprudence in the area of language rights, the right to ask for translated copies of the evidence in a language other than the accused's language does not exist.
Senator Joyal: Is that the case despite the Beaulac ruling in Quebec? Do you really believe that your interpretation of the right of the accused to have a trial in the language of the accused's choice would limit the accused's access to evidence which might be translated?
Ms. Soublière: The Beaulac decision does not change our opinion. Certainly, there may be circumstances in which some of the evidence might have to be translated, but that would be done for reasons pertaining to fundamental justice and not for reasons linked to language rights. In some cases involving an accused who did not understand some parts of the evidence, the courts have ordered that those parts be translated not for reasons related to language rights, but for reasons pertaining to fundamental justice, which applies to every person, regardless of the language of the accused, be it English, French, Chinese or Italian.
Senator Joyal: I know we do not have time to debate this matter, so allow me to humbly or respectfully — as is said before the courts — agree to disagree with you on your interpretation of the Beaulac decision.
Let me give you another example which, in my view, restricts the interpretation of this bill. Section 530(3) of the Criminal Code states, and I will read it in English:
[English]
The justice of the peace or provincial court judge before whom an accused first appears shall, if the accused is not represented by counsel, advise the accused of his right to apply for an order under subsection (1) or (2) and of the time before which such an application must be made.
[Translation]
The judge advises. In your proposed amendment to replace that provision, you simply say that the accused should be advised of his or her rights. So this could simply be done in both official languages when the accused is before the judge; the accused can ask the judge questions and receive additional information; the accused may ask how far his or her language rights extend, and whether they extend it to some parts of the evidence, as I just mentioned.
But if you simply say that the accused should be advised, it is not at all the same thing, since this involves the right of the accused to be informed of what it really means to have a trial in the official language of his or her choice. I feel that when an accused understands the full implications of being tried in the language of his or her choice, it can affect the scope of those rights.
Ms. Soublière: In fact, the only words which were dropped from the provision are ``is not represented'', I believe. It is true that there are different ways of advising an accused of his or her language rights. In some jurisdictions, the judge advises the accused of these rights. But in other jurisdictions, these rights are mentioned in a form which is given to the accused. The form says that an accused has language rights under sections 530 and 530.1. In other jurisdictions, the existence of these rights is announced at the hearing.
So there are a number of ways to notify the accused. However, it must be noted — and this is the improvement I spoke of earlier — that the provision is currently only intended for unrepresented accused persons. Under Bill C-13, a judge would have to ensure that all the accused be notified of their language rights.
The Chair: I truly apologize. This is an issue that I also feel very strongly about. We will pursue the discussion, I am sure.
[English]
Senator Andreychuk: You talked about offshore betting and said that it falls under the bill. I want to be clear that no new offence is being created in terms of offshore. The bill is saying that if bookmaking takes place elsewhere but a part of the offence, i.e., the transmission, took place in Canada, then should that person ever come to Canada, we could charge them. If we had existing ways to go offshore in a criminal matter, we could gather evidence, but this bill is not creating a new offence that goes extraterritorially. Am I correct?
Ms. Desaulniers: My colleague is so much more eloquent than I am in these matters.
Senator Andreychuk: I hope he does not have first-hand experience in this area.
Mr. Pruden: You are correct in saying that there is not a new offence. It is the same offence that currently exists in section 202(1)(i); there is no change, other than to say that the technology used will go beyond the archaic terms that we find in the existing provisions. There is no change to the offence.
As well, you are correct in saying that if someone today, under those archaic technologies, were committing the offence in Canada while still offshore, should they some day be found in Canada, the police and prosecution might be able to proceed against them, even based on the existing provision.
The Chair: Minister Nicholson, thank you for appearing. We are grateful to you for your time. I thank Ms. Desaulniers and Ms. Soublière as well for coming before the committee.
We will hear from our next panel from the Office of the Commissioner of Official Languages. For this portion of the meeting, I shall not be in the chair because, as some of you know, Mr. Graham Fraser is a relative of mine. Therefore, because the Deputy Chair, Senator Andreychuk, has been called away on business, I would ask Senator Milne, former Chair of the Committee, to take the chair.
Senator Lorna Milne (Acting Chair) in the chair.
The Acting Chair: We now have before us a very well-known personage in Canada, Mr. Graham Fraser. He is particularly well known to one member of this committee. Mr. Fraser, we are in your hands, sir.
Graham Fraser, Commissioner, Office of the Commissioner of Official Languages: Thank you, Madam Chair, and I appreciate your rising to the occasion for the particular circumstances involving my appearance before this committee.
[Translation]
Madam Chair, thank you for giving me the opportunity to appear today to comment on Bill C-13, more specifically the proposed amendments to sections 530 and 530.1 of the Criminal Code.
As stated by the Supreme Court of Canada in Beaulac, the purpose of these provisions is:
... to provide equal access to the courts to accused persons speaking one of the official languages of Canada in order to assist official language minorities in preserving their cultural identity.
For quite some time, the commissioner's office has identified the need to amend these provisions. In 1995, the Office of the Commissioner conducted a study on the equitable use of English and French before the courts in Canada. It recommended certain changes to sections 530 and 530.1 of the Criminal Code, namely in terms of the obligation to inform the accused of their language rights.
[English]
When Bill C-23, which preceded Bill C-13, was introduced, I was in favour of the proposed amendments to sections 530 and 530.1, because they took into account some of the recommendations made by the Office of the Commissioner of Official Languages and the case law. This is the case with clause 18 of the bill, which amends subsection 530(3) of the Criminal Code to impose on justices of the peace or provincial court judges the obligation to ensure that the accused is advised of his or her right to a trial in the official language of choice. Currently, the accused is informed of this right only if unrepresented by counsel. Without question, such an amendment represents a positive step forward.
When I appeared before the House of Commons Standing Committee on Justice and Human Rights on May 3, I proposed two changes to Bill C-23 regarding the language of information and ordering a bilingual trial.
[Translation]
In regard to the language of the information, I was pleased to see that section 19 of the bill recognizes the accused's right to receive a translation of the information or indictment against him or her. This is a positive step in the direction set out by the courts. However, I would have liked the accused to have been able to obtain a translation of the information without filing an application to do so. I understand that the amendment we proposed was not accepted because it would have required the agreement of the provinces due to the additional costs it might have entailed. As a result, I invite the Minister of Justice to continue his discussions with his provincial and territorial counterparts, in order to convince them of the importance of such an amendment in the future.
I also expressed to the committee of the House my concerns regarding bilingual trials. The Criminal Code currently allows for courts to order bilingual trials. However, according to the relevant jurisprudence in this area of the law, a court can only make such an order if it is first convinced that the rights of the co-accused and the interests of justice are appropriately balanced.
The modification that I proposed aimed to maintain the judge's discretionary power on the matter. I was pleased to see that this provision has been amended to address my concerns and those expressed by the Fédération des associations de juristes d'expression française de common law. The federation has proposed further changes to improve the bill, and I am pleased to see that its proposals have been accepted.
I am therefore generally satisfied with Bill C-13 in its present form. The changes to the bill will help clarify the implementation of the language rights the accused presently benefit from.
While Bill C-13 does not grant the accused language rights for procedures related to the trial, particularly the appeal process, it is nevertheless an important bill that will facilitate access to criminal justice in both languages.
[English]
To conclude, I would like to draw your attention to a problem that I also raised in front of the House of Commons Standing Committee on Justice and Human Rights and that is related to the implementation of the language rights of the accused. That problem is the shortage of bilingual judges in provincial superior courts. This problem persists, even if it has been identified by my predecessors since the early 1990s and by the Department of Justice Canada in a study entitled Environmental Scan: Access to Justice in Both Official Languages. The Fédération des associations de juristes d'expression française de common law, the Canadian Bar Association as well as my predecessor, Commissioner Dyane Adam, have raised the issue before the House Subcommittee on the Process for Appointment to the Federal Judiciary. In its preliminary report made public in November 2005, the subcommittee recognized the importance of modifying the process in order to remedy the problem. It is important that the superior courts have a sufficient level of institutional bilingualism in order for the accused to benefit from the language guarantees provided for in sections 530 and 530.1 of the Criminal Code. Without this capacity, the language provisions of the Criminal Code have no chance of fulfilling their objective, namely to give the accused the right to be tried in the official language of his or her choice.
I thank you for having taken the time to hear my comments on Bill C-13 and I would be happy to answer any questions you may have.
The Acting Chair: I thank you for those remarks, Mr. Fraser.
Senator Baker: I would like to welcome Mr. Fraser to the committee. He is certainly well-known to everyone on Parliament Hill and we have always had great respect for Mr. Fraser and his knowledge of this place.
I am interested in the answer given by the government to your suggestion, commissioner, that the information be translated into the language of the accused's choice — that is, choosing between the two official languages. The government responded that they could cause a portion of the Information or indictment against the accused to be given in the official language that the accused uses. I am interested in your explanation for the government's not following your recommendation to have the entire information in the language of choice and choosing to identify this as a portion of the information because the provinces would perhaps have to undergo additional expenditures in so doing.
The problem with that, Mr. Fraser, is the following. Professor Oliver — we refer to him as ``professor'' because he is a professor of law — did not use the words ``an information or indictment under this act.'' He said ``the charging document'' when he introduced it. The three terms are used interchangeably to refer to a document that at section 2 of the Criminal Code is called the information. I have an information before me. If you are charged with a charge that is only one count, the information is a pretty short paragraph. It says that the police officer has reason to believe that so and so, on such and such a date, in such and such a community, violated section so and so of the Criminal Code. The information I have here is a violation of section 327.1 of the Criminal Code. It briefly identifies what the charge is: a reasonable inference that the instrument, device or component is intended to be used to obtain the use of any telecommunication facility or service.
Now, what does that tell someone about the charge before them? Why would the Government of Canada not be willing to translate the entire paragraph, given authority under this new act to translate a portion of it? I fail to understand why translating an additional three or four lines, the length of a typical information, is so problematic.
I have looked at many informations. That is your typical information. The particularization of the charge is found in the additional disclosure. In other words, prior to plea you get not only that information but also disclosure. You have the officer's notes, the continuation report and the Crown attorney's case report. Usually, these are short documents that are each about two pages in length. Yet, in response to your submission, the Government of Canada comes back with, ``We will translate a portion, if they request it, through a special procedure before the court.''
Mr. Fraser, do you wish to comment?
Mr. Fraser: My understanding of the government's reluctance was the nature of the federal-provincial sharing of responsibility for the administration of justice. Honourable senators, many of you have much more experience with the nitty-gritty of informations in the legal sense than I do. I would ask my legal adviser, Ms. Tremblay, if she has any specific comment on the senator's point.
Johane Tremblay, Director, Legal Affairs Branch, Office of the Commissioner of Official Languages: Our concern was mainly that the accused must ask for the translation. My interpretation about only a portion of it being translated is that it would be at the request, again, of the accused. It would be a portion or all the information contained in the charging document. However, as you said, most of the time the information is very short. We understand that the consent of the province s was needed before imposing that additional obligation, and we do not know about the costs that it would incur.
We understand that in some provinces, such as Manitoba, there is a practice where the information would be translated automatically without any specific request. However, that is not a practice in most of the provinces. That was the response we received.
Mr. Fraser: I do not want to impute either motives or explanations that I do not have to the government. However, my assumption was that this was related in part to the problem that I raised in the last part of my declaration, and it is a question that concerns me. There is a capacity problem, and it affects not only the availability of judges that can hear cases but also court personnel and the identification of jurors who can participate in the trial.
I had a session when I was in British Columbia with members of the Association des juristes d'expression française regarding their desire to see an alteration in the way in which potential francophone jurors could be identified. Right now, they are working from a very small pool and there are some practical problems.They are exploring the possibility of the Elections Act being amended to give them access to a larger pool of potential jurors who would identify themselves. They are exploring other instruments as well. It is a challenge in a B.C. community to find a sufficient number of jurors to make a bilingual trial a genuine reality.
Senator Baker: I agree with you, Mr. Fraser, that this bill is an improvement. There is no doubt about that. I do not think any member of the committee disputes that fact.
It is just that it seems awfully strange that right now the most voluminous part of a trial — the preliminary inquiry, which covers much of the evidence, and the trial, which could go on for a couple of years — is, in law, in the official language of the accused's choosing. Currently, the accused has that right, but the accused does not have the right to ten sheets of paper in the language of their choice when they are being charged, but only to a portion of the information, which tells nothing.
With respect to the other part of the trial, as Senator Joyal will testify, section 11(b) of the Canadian Charter of Rights and Freedoms defines that a person has the right to be tried within a reasonable period of time. The definition of ``tried'' by the Supreme Court of Canada includes from the moment of charge to the time of sentencing — that entire period of time. Yet, the accused's right to choose an official language covers only the preliminary inquiry and the trial. It leaves out all pre-trial Charter applications and the trying of those; it leaves out any voir dire that could be entered into as to the admissibility of evidence prior to trial; it leaves out the appeals to the Court of Appeal — and most of this happens at the provincial level; and it leaves out the appeals to the Supreme Court of Canada.
The problem is that what it leaves out is the least voluminous part of these trials, yet the most important part when someone is called upon to plea.
Having a portion of the information may tell you absolutely nothing, as Ms. Tremblay said a moment ago. If it were mandatory to translate only the officer's notes and a continuation report, that would do something to make sure someone knew what they were being charged with.
The argument that it puts an onus on the province to fund this voluminous transaction does not hold water, because what is being left out is the least voluminous and the least prejudice that the province could suffer if the entire thing were changed.
Mr. Fraser: I find your observation fascinating, senator. I must confess that as a former journalist, I always assumed that informations were intentionally drawn up so as to convey as little information as possible.
Senator Baker: That is right. They are.
Mr. Fraser: I think you raise a very useful point, which we will take note of for our further consideration of the question.
Senator Jaffer: Commissioner Fraser, I want to thank you for always being available to us.
I am struggling with this sharing of who is responsible for providing the trials. Each says the other, which is the usual problem we have between the federal and provincial levels.
I am talking about my province, British Columbia, and the issue of implementation. It is fine on paper. My colleague, Senator Baker, said this is an improvement. For me, the improvement will be if resources are provided to put this in place.
Commissioner, in your paper you were talking about provincial court judges. My biggest challenge working with lawyers in my province is that, while at least the judges and prosecutors obtain training, defence counsel does not. Neither does duty counsel nor legal aid. I have seen that, in the end, the person almost gives up, and they get treated like anyone else who does not know the language; they obtain an interpreter. That is not the way our country should work.
I think there is a weakness. If the person with whom the accused communicates is not as strong in the language as the prosecutors or the judges, then there is a big weakness in our system.
I have been asking for a pilot project between Quebec and B.C. in which young lawyers get exchanged so that there can be capacity building. Otherwise, this is just paper, and it will not be implemented. I would like to hear your comments on that.
Mr. Fraser: I find this an interesting suggestion. I have been most impressed with the degree to which the debate over the issues of access to justice has been active in British Columbia. I am very conscious of the role that Dugald Christie played in waging this battle for access to justice in British Columbia. Personally, I think he played a great role in making the justice system, the lawyers and the defence bar increasingly aware of the injustices and barriers that exist for people to get fair access to justice. It was a fight that inspired me, and I will certainly take note of your comments.
To a certain extent, one of our challenges in making language policy work in this country is ensuring that people have access to the experience of exchanges and access to courses in the other official language in post-secondary institutions. A kind of double streaming has happened over the last few decades where those graduates of high school who have gone through immersion are the most bilingual of any generation in Canadian history, but those who have not are the least bilingual. There was a period where second-language requirements existed for entry into university, and it meant that everyone had a fairly mediocre knowledge of the second language, but there was a kind of universality to it. Now there is a gap between those who have a substantial mastery of the language as they emerge from secondary school and go on to university and those who do not.
I have raised this issue with university presidents, and I talked about it at the bar association meeting in Alberta this summer. It is important that law schools recognize the need for lawyers to understand that Canadian law does not exist in translation: it is written in two languages. Often we have a problem in law schools where students study the law in one language or the other but do not really grasp the bijuridical nature of our legal system.
Senator Jaffer: When you talk about a second language going into university, that does not necessarily mean the second official language. That is another challenge we have.
In our province, we have a diversity committee in the Law Society. That group has also been looking at ways in which we can provide better defence counsel services to accused persons. I encourage you to speak to them. Otherwise, this law is great, but if you cannot implement it, it is not very effective.
Mr. Fraser: I appreciate the point you are making. I will definitely take note of it and follow up.
[Translation]
Senator Joyal: Welcome, Mr. Fraser. As you know, courts, more specifically in Quebec, had to interpret section 133 for a number of cases over the past 30 years. They have succeeded in defining — clearly enough in my opinion — the issues arising from a citizen's right to be tried in the language of his or her choice, be it in English or in French; in Quebec, this involves English, which is mentioned under section 133.
The courts also determined that a citizen must not only have access to courts in the language of his choice, but that the trial must also be held in the language of his choice and that translation is not an adequate response to his rights. I am thinking specifically of the Garcia decision, when Madam Justice Barrette-Joncas defined very clearly that translation is not an acceptable way to meet the language rights requirement of the accused.
As we look at the overall language situation in criminal courts in Canada, we see that the provinces of Quebec and New Brunswick have recognized their general obligations to provide access to courts in either official language. As for the remaining provinces, section 16 was adapted to current needs, budgets, et cetera. The Official Languages Act was adopted 38 years ago, in 1969, and we are still deploring the fact that there are not enough bilingual judges in the other provinces.
I feel that there is some complacency. In practice, the process is off to a slow start, and if some provinces are more open to giving minorities the access to which they are entitled to trials in the language of their choice, they just give a little more access to the documents — as my colleague, Senator Baker said earlier. They can simply tell the accused ``you have the right to be tried in English or in French.'' Someone who has never been to court before does not know what this means. Being someone before a criminal court is already a trying experience. Even lawyers like ourselves feel tremendous pressure in that situation. When you are brought before court and you are simply told that:
[English]
``You have a right to decide if you want to have your trial in French or in English.'' That does not mean much for the accused. The person must understand very well the implications of the selection that will be made. The person might be under the impression that they will be judged according to their own official language when in fact only a portion of the procedure will be translated.
[Translation]
Similarly, if someone is co-accused with persons who speak the other official language, it is a well-known fact that a francophone who is co-accused outside of Quebec or New Brunswick will most likely be tried in English according to the provisions of this bill.
Should we not take clear measures to ensure that nearly 40 years after the adoption of the Official Languages Act and 25 years after the adoption of the Charter of Rights and Freedoms, the required system be implemented to ensure the rights of minorities in both languages, apart from the anglophone minority in Quebec and the francophone minority in New Brunswick? I am speaking only about courts.
Mr. Fraser: Some lawyers have told me how difficult it is to explain to the jury the fact that a witness's statements may be invalidated if the witness is forced to testify in his second language. When a witness is forced to use his second language, his very credibility is at stake. One could be at the mercy of translators. Not everyone has access to a quality translation service like the one at the House of Commons. I do not know whether you have already experienced this, but I had this experience abroad, when I heard translations from English to French that made me really uncomfortable because the statements were not translated to my satisfaction.
In fact, it takes some will to ensure that the sections of the charter have real meaning for the accused. They are extremely vulnerable. The Beaulac decision was made in view of the extreme vulnerability of the accused. This vulnerability must be recognized, for justice to be rendered.
Ms. Tremblay: I would say that witnesses always have the right to testify in their own language. The problem has to do with the quality of interpretation. This issue was studied by the Official Languages Commission. The judge must direct the trial so as to respect as much as possible the language rights of all the accused involved in a bilingual trial. The provision was ambiguous. We wanted to give the judge discretion to strike a balance among the interests at stake in the trial. On the one hand, this involves trying the co-accused together for certain types of crime, and on the other hand respecting the language rights of each co-accused party. In Quebec's jurisprudence, there have already been cases where the judge decided that the language rights of the co-accused prevailed and that there would be no joint trial. The amendment will maintain this discretion for the benefit of those co-accused persons who would choose two different languages.
Let me come back to the bill of indictment, namely the right of the accused to have a translation of it. It should not be up to the accused to apply for it. The bill of indictment should automatically be translated whenever there is an order to hold a trial in a given language. The problem often has to do with the appended documents. This was one of the issues raised before Supreme Court in the Charlebois case, namely, that pursuant to section 19 of the Charter of the French Language, the accused have the right to be tried in court in the official language of their choice. This case occurred in New Brunswick and involved the New Brunswick Official Languages Act. However, the court had to deal with the scope of this right as provided by the charter. It stated that it did not oblige the Crown to present evidence in the language of the accused.
The charter did not define the obligations. They were defined by jurisprudence over the years. The Beaulac decision clarified certain points. As the provisions were interpreted by the Supreme Court, the rights were clarified, as are the obligations of judges as well as crown prosecutors.
In summary, the obligations in the Criminal Code further clarify the meaning of having access to court in the language of one's choice. In addition, these obligations are complementary to the implementation of the constitutional rights granted by the Charter.
This is part and parcel of the federal government's commitment to further the equality of both French and English, and the amendments seek to address these situations and clarify the ambiguity that has been flagged over the years by case law.
[English]
The Acting Chair: Senator Joyal, perhaps I could put you on the second list, if we get that far.
Senator Joyal: With pleasure.
[Translation]
Senator Chaput: Good morning, Commissioner. It is always a pleasure to see you.
I have mixed feelings about this bill. I believe this piece of legislation is a step in the right direction: we are taking small positive steps, and we are progressing. There is no doubt in my mind about this.
However, by saying so, I wonder if I am thinking like a person living in a minority situation: this bill is a step in the right direction, and I am happy to settle for a few bread crumbs rather than the entire loaf. This is always in the back of my mind.
Based on my experience as a Manitoban francophone, it is by taking small steps that we achieve greater results.
My question relates to bilingual trials. You have your concerns, as you stated in your speech, but you also say that you are satisfied because this bill will now hand discretionary power over to the judge; it is the judge who can decide.
If I understand correctly, given the judge's discretionary power, does this mean that a court cannot bypass the accused's right to be tried in the official language of his choice? Or, is the accused spared from being forced into a bilingual trial?
Mr. Fraser: I believe that the accused has the right to make a request and cause this to happen. Is this not the matter at issue?
Ms. Tremblay: The judge, in exercising his or her discretionary power, must take this into consideration. It is in the judge's purview to decide whether or not holding a joint trial serves the interests of justice. For example, in a trial involving conspiracy, such a trial may actually serve the interests of justice. On the one hand, it is advantageous to take into consideration this right; on the other hand, there is the linguistic right of each one of the accused parties to be tried in the official language of his or her choice.
Judges must weigh this, and decide whether or not to split the trial out of respect for the language rights of the accused parties, or on the contrary, based on other considerations, to impose a bilingual trial on both of the accused.
It is abundantly clear that holding a bilingual trial is not at all the same as holding a trial in one language. Judges try to manage the proceedings in such a way as to ensure equity and respect of the language rights of the accused parties to be judged in the language of their choice.
Senator Chaput: Therefore, if I were being accused, and requested a trial in French, a judge is obliged to grant this? A judge would not have the right to impose a bilingual trial?
Ms. Tremblay: It can be imposed.
Mr. Fraser: I apologize if I misled you.
Senator Chaput: I was not sure, that is why I asked the question.
Ms. Tremblay: It is always about the context surrounding the co-accused parties. Many factors must be considered when deciding to hold a joint trial, such as in conspiracy cases, for example.
[English]
The Acting Chair: Mr. Graham, does your role as commissioner allow you to follow-up, to find out if a law passed by Parliament does improve access to the language of the defendant's choice in Canadian courts?
Mr. Fraser: Absolutely.
The Acting Chair: Very good.
[Translation]
Senator Joyal: Mr. Fraser, you are quite familiar with the Quebec justice system. My perception is —
Mr. Fraser: As an observer, of course, not as an accused person.
Senator Joyal: Nor as a Crown prosecutor, nor defence lawyer.
Based on my understanding, under the Quebec criminal justice system, the rights of anglophone Quebecers have been recognized to such an extent that they now have a stronger guarantee of being granted a trial in their language, whereas even the current amended provisions do not recognize this guarantee in other provinces, aside from New Brunswick. Am I right or wrong?
Mr. Fraser: I believe you are probably right. Without a doubt, language rights outside Quebec are often compromised because of capacity.
Senator Joyal: Lastly, may I repeat, after 38 years of official languages, and 25 years of the charter, has this matter of capacity not become the loophole that is used to avoid granting equal rights to minority groups in Canada? I am talking strictly about the criminal justice system.
Mr. Fraser: I can certainly tell you that it is an excuse we hear often, and not only in reference to the justice system. Often, we hear about the lack of resources, financial problems, and human resources problems. Problems affecting the justice system and its capacity to serve are not unique. I hear the same types of complaints regarding the federal government's obligations to comply with the law.
Senator Joyal: Do the courts not have the ability to intervene? Allow me to cite an example that you are most certainly familiar with: the famous ruling of the Penetanguishene School Board. The Ontario government refused to build a school because of budgetary restrictions imposed on all Ontarians. The Ontario court fully acknowledged that despite the reality of budget cutbacks, certain rights could not be assessed solely on the basis of available funding, and that these were constitutional rights.
I am not talking about improving highways or ferry services. I am talking about fundamental constitutional law which defines the very nature of Canada.
Mr. Fraser: To underscore your point, I would also cite the Hôpital Montfort ruling which was based on exactly the same principle.
Senator Joyal: Once again, after 25 and 38 years respectively, should we not consider the option of going before a court in order to obtain an order to overcome these systemic deficiencies... because after 25 years, one can conclude that there is systemic deficiency, that is the way the system works. We must achieve this recognition, set out in the law, and obtain court rulings that would order the government to take the necessary language measures and fully respect such a fundamental right before the courts — we are talking about an individual's freedom, whether or not he will be imprisoned, whether or not he will have a criminal record, whether or not he must pay a fine.
What we are talking about here is extremely serious. The status of an individual, as a free citizen in a free and democratic country such as Canada could be affected and this could have huge repercussions for the remainder of a person's life.
I believe that there are areas where the situations are more urgent than in other areas.
I read the recommendation that you are making today, but I fear that it will be put on the back burner with other pious wishes and that in practical terms, nothing will change once this bill is adopted.
To my mind, if this legislation were applied in its current form in the province of Quebec, should there ever be a provincial government that was not well-intentioned toward its official minority, there would be a regression of rights in Quebec. That is not we want in this country.
We want quite the opposite. We want rights to be expanded, and for that to be achieved the government must take positive measures — we used to talk about ``affirmative action,'' but that expression is no longer considered politically correct.
I do not feel that this bill is properly addressing the issue of language equality; there is a lack of personnel, of funding, and of political will to move forward.
As legislators faced with this situation, should we not also consider measures other than those contained in this bill?
Mr. Fraser: I would like to make a couple of points before asking my legal advisor to comment.
Firstly, I was delighted to hear the minister say, when she appeared before the committee, that there was more than just this bill in the pipeline.
If one point can be made about the battle for language rights, it is that it is a never-ending battle; part one was in 1969; part two was 25 years ago in 1982; and part three, the updated version of the Official Languages Act, was in 1988. And let us not forget that in 2005 Part VII of the Official Languages Act was amended. Measurable progress has certainly been made. There has not been a steady deterioration in the situation over the past 38 years; measurable progress has been made in certain areas and tools have been developed by parliamentarians and government.
Obviously, there is also the Action Plan. On that point, when I heard the Speech from the Throne, I was delighted to hear the government commit to renewing the Action Plan, which was due to expire at the end of March 2008, and which contains provisions for a justice fund.
I greatly appreciate your contribution to the debate. When I appeared before this committee for the first time, you told me about the Göran report on the abolition of the Court Challenges Program. It was with your suggestion in mind that we incorporated a second legal analysis of the impact of this decision into our inquiry on budget cutbacks that we carried out in September 2006.
I would like therefore to take this opportunity to thank you personally for your contribution which proved very useful to me in my study of the matter. I would also like to assure you that your suggestion is duly noted and I will certainly give it some thought.
Ms. Tremblay: I would very briefly like to give you some information about the Action Plan and the Access to Justice in Both Official Languages Support Fund. We were talking earlier about the need to train defence counsel. There was a project launched in Ontario to train defence counsel that was awarded funding, and if I am not mistaken, it was available to defence counsel from other provinces as well.
A federal-provincial-territorial consultation table has also been set up to discuss the implementation of the fund; it will be addressing what is involved, and what funding is needed to increase legal personnel capacity at the provincial level. The whole matter of access to justice is made all the more challenging by the fact that the area is of shared federal-provincial jurisdiction.
Senator Joyal: With the exception of judicial appointments, which is obviously a matter of federal jurisdiction.
Mr. Fraser: Indeed, and I drew the minister's attention to the importance of the judicial appointments issue.
[English]
Senator Bryden: In listening, I know I am on thin ice in this room, and what I am about to say may be heretical; however, somewhere in Canada at some point, someone other than a member of the official languages group will probably watch this. I cannot help but think that there are many groups in our country that will be very envious of the debate that we are having here this afternoon. If they were even close to the access to justice that is available to our two official language groups, they would feel blessed. That is a problem.
We are a very wealthy country, but we have limited resources. We are speaking about ensuring that training takes place so that all of the elements reflected in the bill and in the Justice Canada can be implemented, because if you just write it, it does not get to the people involved. There is a propensity in governments to assume that the answer to every problem is legislation. If there is something wrong with your treatment of a group or where you are going with any particular issue, then you go to legislation. You pass legislation and you flash the legislation on the screen, and everyone is happy because we are wonderful to have changed the law to this wonderful degree. However, there is not one thing that they are prepared to do to provide the resources to bring that change or that improvement to the street level, to the Aboriginal people, who are very much the poor relations of our Canadian sovereignty. They are often, as you know, compared to the situation of African-Americans and Latinos in the U.S., except I think ours have fewer rights and opportunities because of the size of our country.
I know I am not supposed to be doing this. We are not on the Hill at the moment, but we are very close and there is a rareness in the atmosphere here that somehow keeps us away from asking what we are really doing that will make a significant change.
The people we are talking about here are the elites, to a very large extent, of our society and they have the muscle. I am one of them. We are the two official languages, but there were other people here before us and who continue to be here. There are also tens and hundreds of thousands of new people coming every year who have to deal with these issues on a very personal basis. Some of us in this elite group need to bear in mind the competition for resources to give a lifestyle to all of our citizens. That ends my lecture.
The Acting Chair: You are not required to answer that because it is probably beyond your competences as Commissioner of Official Languages. There is a great deal of sympathy around this table for the remarks that Senator Bryden has made.
Mr. Fraser: I have a couple of comments, if I may add to this.
First, a distinction must be made regarding providing language services to people who do not speak either official language, who are in this country and have medical needs or legal needs. We all know about the tragic incident at Vancouver International Airport, where, I will say, without wanting to judge anyone's behaviour, some of those needs were not met. There is a difference between finding a just and humane way to serve those needs, on the one hand, and imposing a burden on the state to be able to respond as a state institution in one of our two official languages, on the other hand.
The languages spoken by those who come to this country tend to be transitional. They are languages that are spoken in a community for one generation. At the time of the Royal Commission on Bilingualism and Biculturalism, a minority report recommended that Ukrainian be recognized as an official language in Western Canada. In 1951, some 450,000 Canadians spoke Ukrainian at home. The problem is that by 1981, the original 450,000 had become 45,000. That does not mean that when a Tamil-speaking woman arrives at Scarborough General Hospital screaming in pain that there is not a human obligation on the part of society to try to treat the woman by finding out from her where it hurts and how she can be served. However, that is a very different kind of obligation on the part of the state than the obligation that we have to our two official languages, where for 14 generations people have spoken French in this country. There are 9 million French speakers, and 4 million of them are unilingual francophones.
Senator Di Nino: I do not think it should go without being said. For the most part, there is a recognition of the problem in major urban areas. I come from Toronto, so I know this. We speak over 100 languages every day. Is it enough? I do not know, Senator Bryden. I do think we should also recognize that when you go to a hospital, some 14 languages might be spoken every day. We must not let this dialogue end without at least acknowledging that a real effort is being made, that I know of at least, across this country to satisfy these needs.
The Acting Chair: In the new hospital in Brampton, they are demanding that the nursing staff be able to speak four languages.
Our time is close to half an hour over. I would like to encourage you to undertake, in some manner when this bill becomes law, as it likely will, to do a follow-up study to determine whether things really do improve in the courts for people who are tried in the wrong language. Unfortunately, you will not have a baseline to work from, so you will not have a statistically valid study. However, it would be interesting to know if this improves the situation or if we are wasting our time here today.
I thank you all for being patient with a new chair.
The committee adjourned.