Proceedings of the Standing Senate Committee on
Official Languages
Issue No. 29 - Evidence - Meeting of October 22, 2018
OTTAWA, Monday, October 22, 2018
The Standing Senate Committee on Official Languages met this day at 5 p.m., in public, to continue its examination of Canadians’ views about modernizing the Official Languages Act and, in camera, to consider a draft agenda (future business).
Senator René Cormier (Chair) in the chair.
[Translation]
The Chair: Honourable senators, I call this meeting to order. My name is René Cormier and I am pleased to be chairing this evening’s meeting.
The Standing Senate Committee on Official Languages is continuing its five-themed examination on Canadians’ views about modernizing the Official Languages Act.
The fourth theme of our study deals with the justice sector. It is our pleasure to welcome Ronald Bisson, Director of the Réseau national de formation en justice, as well as Nadia Effendi, Chair of the Association des juristes d’expression française de l’Ontario. She is accompanied by Geneviève Pilon, Acting Executive Director. Welcome to you all.
Before I open the floor to the witnesses, I invite the members of the committee to kindly introduce themselves, starting with the committee’s deputy chair.
Senator Poirier: Good evening and welcome. Rose-May Poirier from New Brunswick.
Senator Smith: Good evening. Larry Smith from Quebec.
Senator Mégie: Marie-Françoise Mégie from Quebec.
Senator Forest-Niesing: Josée Forest-Niesing from Ontario.
Senator Moncion: Lucie Moncion from Ontario.
Senator McIntyre: Paul McIntyre from New Brunswick.
The Chair: Thank you very much, my dear colleagues. Mr. Bisson, the floor is yours.
Ronald Bisson, Director, Réseau national de formation en justice: Thank you very much for the invitation. We are very pleased to be with you this evening. We have sent you our brief, so I will take the five minutes we have to give an overview of its main points.
You are familiar with our network, but you can also find information about us on our website, www.rnfj.ca.
Our network has 16 members, including three jurilinguistic centres with experts in legal vocabulary. We have six universities, including three law faculties, three community and applied arts colleges, and four community institutions and organizations, with legal tool distributors and on-the-job trainers.
In the time I have been given, I have one message for you and one recommendation. This is very broad and we could include a lot of subjects, but we have decided to focus on one single recommendation.
In our network, we have really simplified the subject of the administration of justice. What exactly are we talking about? First of all, we are talking about the employees and participants in the legal system. We are talking about employees who have to master the linguistic skills needed for them to provide services in French and English. We are also talking about employees who need access to legal tools, which ensures equal access to justice in both official languages.
When you submit your reports and they are fed into the great machinery of government, you will hear people telling you about all kinds of institutional obstacles as reasons why they cannot abide by the law. They don’t have enough employees, they don’t have enough trained people, they can’t measure the skills, they don’t have the tools they need.
The message I want to give you today is this. Those people are giving you excuses. We have everything we need. We have a network that goes across Canada from coast to coast. We work in the field of law and we are equipped to respond to all requests to provide people with general training, to train people on the job, to develop tools and to measure language skills.
That is our first message. We urge you not to let the people who talk about institutional obstacles blur your vision of a modernized Official Languages Act that would truly reflect the Canada of today.
As for our recommendation, I would first like to establish a context for it.
I want to tell you about two negative impacts from the current act. You are legislators. We know the system: legislation leads to public policy, to programs and to action in the trenches. You are positioned at one end of the telescope as legislators and we are at the other end in the trenches.
I would like to give you two examples of really serious challenges attributable to some shortcomings in the act. A number of people will talk to you about the translation of court judgments. It is one of the topics in your study. We work with the trainers. We talk to professors in the colleges and universities. Here is how we live with the problem of translations that are not yet produced or are late.
Our professors use the translations as educational tools. They teach with this material. Some professors have mentioned to me that, in 2018, it is quite embarrassing to have to tell students that only the English text is available since it has not yet been translated into French. Sometimes, they even have to say that, although a text is translated, they are not sure about its value.
I wanted to give you that example of the translation of court judgments. It has repercussions in the entire system, including at its base, in classrooms. We are training future lawyers, future police officers, and we are explaining to them the importance of equal access to justice in both official languages. Then they ask us how it is that, 151 years after Confederation, the tools are not yet available in both official languages. That is the first of the problems I wanted to emphasize.
Here is my second problem. Some of you are legal experts. You know that, to practice law, you have to have access to legal tools in French, in divorce law, for example, or in other areas.
In Canada, private sector lawyers are the ones mainly developing tools such as forms, precedents and contract templates. Outside Quebec, of course, where lawyers represent 4 to 5 per cent of the francophone population, the main determinant of the availability of legal tools is our demographic weight. Since the tools are produced by the private sector, and since we represent a twentieth of the private sector, we have about a twentieth of the tools produced in French. That is a gap in the market.
Lawyers practising in French need all their tools to be bilingual. We cannot ask French-speakers in the private sector to produce 20 times as much. That makes no sense.
Let me illustrate another shortcoming in the system. We have documented cases of lawyers who want, for example, to argue a divorce case in French. They had to go to legal scholars to say that they want all the material in French. Legal scholars are mobile, they can travel, they can go to their home provinces and practice or submit their tools in French.
There are other documented cases where lawyers tell their clients that they can argue their divorce case but the client has to pay for the forms to be translated. For us, a litigant paying for a form to be translated is not what we call equal access to justice.
Let me give you two examples. Here is the basic question I would like to discuss with you. The challenges are rooted in the Official Languages Act. Two things are missing from the act. The act makes no mention at all of the federal government’s objectives for the administration of justice. The objectives that clearly set out what we as a federal government want to see in terms of equal access to justice are nowhere to be found.
The other problem is that the legislation is silent on the fact that the administration of justice is a shared jurisdiction. The act does not mention it. If someone from outside read the Official Languages Act for the first time, they would not understand that the administration of justice is shared in the Criminal Code. The 2009 needs analysis conducted by the Department of Justice indicated that about 99 per cent of criminal cases are heard in provincial courts. The law is silent on the subject and it does not indicate the principles that it wishes to establish when working with the provinces for access to justice in both official languages. That is all left to local governments. Here is our recommendation. We do not know exactly where it would go in the act when the text is produced. But it is certainly necessary for the federal government to clearly indicate its objectives and to develop principles for collaborating with the provinces.
On page 4, we have indicated some examples of objectives that the federal government should include somewhere in the modernization. Do they have to be included in the act, in the preamble, in the regulations with Part VII? I do not know, but they have to be spelled out. It is in the federal government’s interest to affirm that any litigant anywhere in Canada must have access to a lawyer who wants to and can provide legal services in the official language of his or her choice. You can imagine that, in all the provinces across the entire country, this can turn out to be a huge challenge. It is also in the federal government’s interest to affirm that post-secondary students wishing to pursue their studies in French in a field of law and justice must be able to do so under conditions similar to those of their counterparts who study in English in the same fields. It is important for employees to have access to on-the-job training and that the employees are able to measure and certify their professional language skills. Finally, the federal government should affirm its obligation to support the standardization of legal vocabulary and the development of tools. Thank you, Mr. Chair.
The Chair: Thank you very much, Mr. Bisson.
Nadia Effendi, Chair, Association des juristes d’expression française de l’Ontario: Thank you very much, Mr. Chair. We are very pleased to appear before you this evening to share some of our thoughts on the modernization of the Official Languages Act, and specifically on the justice sector.
The Association des juristes d’expression française de l’Ontario (AJEFO) is a community and, at the same time, a centre of legal expertise in French that brings together more than 1,000 members: legal scholars, lawyers, judges, students and other professionals in the field, including translators. As such, the AJEFO is the largest body or group of French-speaking legal professionals in Ontario. We are proud to appear before you today and to note that, in your number, there is a former member and former Chair of the Association des juristes d’expression française de l’Ontario in the person of Senator Forest-Niesing. Our greetings go to her.
Since 1980, the Association des juristes d’expression française de l’Ontario has been working to improve access to justice in Ontario through its programs. We do this in two ways. First, by informing the general public about their rights, through two of our programs—to which I will return—and, second, by providing French-speaking lawyers with tools so they can serve their clients in the minority language. We do this with our Jurisource program, which may be of interest to you. I will return to that as well.
In addition to those programs, AJEFO is an advocate. We appear before committees like yours, but also before federal courts and tribunals. Very recently, we appeared before the Supreme Court of Canada on the Mazraani case, which dealt with language rights. We must point out that AJEFO is a member of the Fédération des associations de juristes d’expression française de common law inc., which in turn is a member of the Fédération des communautés francophones et acadienne du Canada. Both organizations have previously appeared before you. In addition, we are members of the Réseau national de formation en justice, through our Jurisource program. As you will be able to see, our remarks this evening are, in fact, very similar to those that you have heard from those three organizations.
In the time I have left, I would like to talk about two points. First, I would like to tell you about our thinking on three aspects of the act, an act that, in our view, must be modernized. Clearly, we support a number of other suggestions that have been submitted to you, but we are going to focus on three in particular. Second, we want to assure you that tools are available for professionals, for the government and for federal institutions, tools that will ensure compliance with the obligations that, we hope, will be strengthened in the act and will not go unheeded. I will share with you some of the AJEFO’s programs that try to meet those obligations.
Allow me to suggest particular aspects of the act that merit your attention and to which we are committed. The first is the appointment of bilingual judges to the Supreme Court of Canada. This has been an imperative for AJEFO and for our members for a long time. For a number of years, AJEFO has repeatedly stated that bilingualism must be a prerequisite for judges appointed to the Supreme Court of Canada. As a result, in our view, the exception in section 16 must be removed.
In 2018, with all the progress we have made in bilingualism in the country, it is unacceptable that a litigant or a lawyer presenting a case in French at the Supreme Court of Canada is not able to be heard and understood by all the justices of the court without the aid of an interpreter. In fact, those appearing must be able to be questioned in the language of their choice. In our view, it makes no sense that litigants can appear before every level of court and argue in the language of their choice, in French, but, before the highest court in the land, they meet an obstacle.
In our view, the obstacles that have been raised in the past, before your committee and elsewhere, have no basis. We believe that, as of now, there are eminent legal minds everywhere in the country who are bilingual. They are equipped to sit on the Supreme Court of Canada, as in fact we have seen with the recent appointments that have been made to the highest court. I can be more specific about the issue when it is time for questions. In our view, requiring bilingualism from all judges on the Supreme Court of Canada would improve access to justice, because it would encourage legal experts to become bilingual. It would really serve a very useful purpose. We also need to enshrine in legislation some key principles underlying the obligations in the Official Languages Act: the active offer, genuine equality and the “by and for” principle. On that last point, in our view, we really need to enable official language minority communities to be part of the implementation. We really support the recommendation made by the FCFA to create a consultation system for those communities. Finally, we support the idea of having real recourse in the act, recourse that would establish an administrative tribunal with the mandate to hear and decide on complaints from litigants.
If I may, Mr. Chair, I would like, in the few minutes I have left, to talk about the second part of my presentation. What tools are provided that allow us to keep our obligations pursuant to the act? There are a number of them and, at the AJEFO, we are proud to offer three in particular. Two are for litigants, providing them with a measure of knowledge of justice, and one is for professionals. The first is the Centre d’information juridique de l’Ontario. This is the service we provide to litigants, in fact to anyone contacting the centre, either in person, or by telephone, or through a 30-minute meeting with a lawyer, to obtain information in French. The second is the CliquezJustice.ca program, which I encourage you to visit. This is a Canada-wide portal providing legal information for the minority francophone population in Canada. Its mandate is to provide the general public with information in a clear and simplified way.
Finally, we have Jurisource. I believe that the committee will perhaps be interested by this program in particular. It is another Canada-wide portal; but this one is aimed at legal professionals in their daily work. It is a virtual library that puts tens of thousands of legal and terminological resources at the professionals’ disposal and allows them to provide legal services to their clients and to litigants. As you can see, there are a number of programs.
In summary, these kinds of programs must continue to be supported in order to ensure that the obligations in the act are met.
Thank you, Mr. Chair.
The Chair: Thank you very much for your presentation, Ms. Effendi.
Senator Poirier: My question has to do with the implementation of the act. We have heard from a number of witnesses who want the implementation to be effective and for the Privy Council, the Treasury Board or Canadian Heritage to be in charge of it. This summer, the Cabinet was shuffled and Minister Joly changed positions, but kept the official languages portfolio. Can you comment on the current situation whereby the Minister of Official Languages is now separate from Canadian Heritage? In your opinion what would be the best approach to make sure that the act is implemented effectively?
Ms. Effendi: Thank you very much, senator. That is an excellent question. In our view, dividing the department does not help the implementation of the act. We support the proposal that has been made by a number of others who have testified before you and who suggest that there should be a central agency responsible for the entire implementation of the act. We need one entity with the responsibility and the powers in the act. Unfortunately, at the moment, the heritage department does not have the powers it needs to convince its counterparts to comply with the act. It only has the power to urge and encourage.
In our view, the current situation does not change the implementation at all. The problem still exists. In our opinion, we need an entity with much greater powers, like the Treasury Board, an entity that would have tentacles everywhere in the government apparatus, and that would be able to convince people around the table to comply with the obligations in the act.
Mr. Bisson: I have nothing to add. Later, I could give you some thoughts on other aspects of coordination in the area of justice.
Senator Poirier: The government has recently announced its Action Plan for Official Languages, 2018-2023. The plan has a component designed to improve access to justice with an investment of $2 million over two years to increase capacity, as well as an action plan within the action plan designed to improve bilingualism on superior court benches.
Is that enough to meet the needs, in your opinion? If not, what steps should the government be taking to improve the situation?
Mr. Bisson: I can answer that. First of all, I want to thank the federal government for the funding it has given the network and our members. We are an interface between civil society and the justice system. I acknowledge that, in a number of countries, this type of interface is not funded. So I am happy about that.
As for your second question, is the funding for equal access to justice sufficient? That’s a delicate question that needs a delicate and measured answer. So I will tell you in a measured way: the answer is no. To improve equal access to justice, the funding is clearly inadequate.
I can give you a few examples, if I may, Mr. Chair. In the action plan that we have recommended to the federal government — that may seem strange but it is what we did — we recommended that more money should be invested in the Justice Canada bureaucracy. We recommended that the Department of Justice should become a horizontal centre of expertise for the whole field of justice, so that the issue of the RCMP and all the FPT justice committees could be coordinated. We saw earlier that most criminal cases are heard by provincial courts, so we must be able to coordinate with the provinces. As a community group, when that coordination does not happen, our job becomes very complicated. I still do not know whether that recommendation was accepted.
I will give you some other examples. I was in Edmonton this weekend and I listened to officials from the heritage department saying that community groups had been given a 20 per cent increase. I can assure you that no one had a 20 per cent increase when the action plan was announced. We had cuts, and so did other groups. The biggest increases would have been in the order of 1 or 2 per cent. Other things are more serious.
Once more with your permission, I will talk about the training of provincial and municipal police. You come from different provinces where there are municipal and provincial police forces. Outside Quebec, not a single police academy can train police officers in French, even in the Atlantic region. We had therefore proposed that money be invested to train police in the academies — I am not talking about the RCMP — but that did not happen either.
Finally, in the government response to the House committee, there was a recommendation, recommendation 6, that talked about family justice. The recommendation announced with great fanfare that there had been huge improvements in the budgets for family justice and that the priorities included official language minority communities. That was in March. In June, the minister told us that all the money had run out and that there was no more money for us. In November, they told us that we could submit projects because we could access funds that the provinces had not spent. I have to tell you that we find it unpleasant to hear things like that.
I think that answers your question. Thank you for indulging me, Mr. Chair.
The Chair: Thank you, Mr. Bisson.
Senator Mégie: Thank you for your testimony. I really like your comment that administrative or institutional obstacles are no excuse for inaction.
I have a question about what your students are hearing. As you said, it is embarrassing to say that there is a French translation but it is not of equal value to the original English version. Here is my question. In Quebec, when a judgment is published in French, do they say the same thing, that the English version is not equal in value to the published French version?
Mr. Bisson: I am not familiar with the situation in Quebec. We work with minority francophone committees. I don’t know.
Senator Mégie: Do they say that the two versions are unequal in value because of the quality of the translation? Could we find jurilinguists to make the translations suitable, or are there other reasons?
Mr. Bisson: I am not familiar with the reasons. What we see sometimes is: “jugement rendu en anglais, traduction en français”. In cases like that, the issue of value comes into play. What we would like is for the act to say clearly that judgments rendered in both official languages are equal in value. That’s what it would take in the act.
Senator McIntyre: Thank you for your presentations. The objective is clearly to achieve the equality of both official languages in the field of justice. How do we achieve that objective? As we listen to you, we all understand that Justice Canada has obligations that should be clearly set out in the Official Languages Act. In which part of the act? That remains to be decided.
Mr. Bisson, as for the needs in legal training, in which areas of law and in which regions of Canada are the needs greatest?
Mr. Bisson: There is certainly a need in the area of French legal vocabulary. That is one of the major needs. As for legal professionals — I have a lot of statistics on this — we simply do not have enough who can practice in both official languages. The need is greatest in Western Canada and in some Atlantic provinces.
Today, the demographic weight of the professionals is equal to that of the communities. In Alberta, 2 per cent of the population is francophone and from two to three per cent of legal professionals can practice in French. That is not enough.
Second, some regions of Canada do not have a law school or criminology courses in French. So students either go elsewhere or study in English. We have to increase French-language training. The other major need that people point out is the whole issue of tools that allow them to practice in French. We are taking a system-wide approach. We cannot fund small projects here and there and think that it is going to result in major changes. A system-wide approach, as defined in our document, from standardization to the measurement of skills, looks at the issue as a whole and brings the stakeholders together around a table. Today, that is not happening.
Ms. Effendi: I would like to add something to what Mr. Bisson has just said. There is a huge gap with the tools and forms that professionals can use. You have heard one example of someone who wants to get a divorce in French. The lawyer does not have the documents in French and has to charge the client for the translation. That is one of the gaps we are trying to fill with Jurisource.
The problem is that it is a program in which we have to trust our collaborators and partners. We are trying to create something more solid, where we can create all the forms in a given area. Unfortunately, because of the lack of resources at our disposal, we are not able to do that.
Second, we are often told that we should collaborate with our counterparts in all provinces. We are ready to do so, whether through the Fédération des associations de juristes d’expression française de common law inc. or by other means, but clearly we need resources. It is difficult, and even often impossible, to sit down around a table. One of the factors preventing us from doing it is that we are still waiting for core funding. That would allow us to collaborate more and to create and share tools with all our partners at national level.
Senator McIntyre: There are definitely gaps in terminology and legal translation. We often hear about that. The situation may vary from one province to another or from one court to another. What measures can the federal government put in place to address that problem? Could an amendment to the Official Languages Act help to reduce those problems?
Mr. Bisson: Once again, I don’t know whether that would go into a renewed act, regulation or policy resulting from a renewal of the legislation.
Let me give you an example. I mentioned the training of municipal and provincial police officers. There is no training in French outside Quebec. As you know, a few years ago, the federal government adopted the Canadian Victims Bill of Rights. The language issue in minority communities was not addressed in that bill at all. Complete silence.
We have our ears very close to the ground; people talk to us about what is happening on the ground. Recently, in a town near here, a victim went to the police station with a worker. She said she wanted to do the whole process in French. The municipal police officer replied: “Victims have no linguistic rights”, which is true. The Canadian Victims Bill of Rights does not address the linguistic rights of victims.
That police officer, who is doing his best, is right in the middle of it. Is there a federal objective anywhere that says that, given that the administration of justice is a shared jurisdiction and that a number of provincial and municipal police officers implement the Criminal Code, something will be done with them? That’s what I’m talking about. I think that answers your question.
Senator Moncion: My question is about the administrative tribunal you mentioned. We welcomed the French Language Services Commissioner of Ontario, François Boileau, and the former commissioner of official languages at the national level, Graham Fraser. Both said that it was not a good idea to include an administrative tribunal in the Official Languages Act. I would like to hear what you have to say about that. Most of our witnesses on this issue said that the legislation needed to have more teeth and that an administrative tribunal that could issue sanctions is needed. We have two different points of view and I would like to hear what you have to say on the issue.
Ms. Effendi: Thank you very much, senator. Right now, as you know, the commissioner does not have the necessary powers to ensure compliance with the Official Languages Act. All he can do is make recommendations to the various federal institutions. He has the power to investigate and recommend.
At the risk of repeating myself, without tangible recourse, the legislation has no teeth. This current regime imposes an onerous obligation on the litigant, who must go to court and convince the judge to try to impose compliance with the legislation. It’s unimaginable. The commissioner rarely does it.
The reason we support this idea of an administrative tribunal is that we have heard from Commissioner Boileau and others that it is difficult to combine the roles of investigator and enforcer. As a result, we think the commissioner should retain his role as investigator, which is to promote compliance with the legislation, and the policing or enforcer role should be assigned to an independent tribunal, which would have the expertise required to hear that sort of debate.
This exists in other areas, such as the Canadian Human Rights Act. It is not unusual; we find it in other legislative regimes. In our opinion, this could be very useful. Courts and tribunals could still review the decisions of the administrative tribunal. We see a possibility of collaboration between this expert administrative tribunal and the commissioner, who could appear before the tribunal.
Senator Moncion: So it wouldn’t be under the role of the commissioner, who is in another completely separate division of the act?
Ms. Effendi: Exactly.
Senator Gagné: Thank you and welcome. I apologize for being late. Forgive me if I ask a question that you have already addressed in your brief.
You mentioned the importance of ensuring a continuum of post-secondary education, whether it be undergraduate law programs, continuing education or human resources development and tools that enable people to better serve Canadians. You also addressed the issue of funding; you delicately said that there are not enough funds.
That cannot really be found in the Official Languages Act. What adjustments must be made to ensure that acquired rights are maintained? What is needed to strengthen the legislation to provide access to justice in both official languages at the national level?
Mr. Bisson: There are a number of approaches. I will touch on a few of them. The legislation cannot provide for exceptions. If we talk about equal access to justice in both official languages and start detailing exceptions for translation, among other things, the exceptions will quickly take over. We need a systemic approach.
We are testifying before a Senate committee. You are the legislators. You play an important role. Your eyes are on that. However, in reality, when you are on the ground, when you start having exceptions, everything stops. For example, under the Criminal Code, we have the right to a trial in French. I have participated in discussions with police officers and prosecutors during training courses. Where does this right start? Is it at the time of arrest, at the time of first appearance? What does this mean? When you start in English, you know where it ends.
Recently, while talking to members, I understood that, in a criminal case, individuals do not have the right to an appeal in French. They cannot be heard in their language. Of course, this varies from province to province. In some cases, a person is entitled to an interpreter. In reality, that is an accommodation. In some provinces, it is not possible.
When a system is not connected, the minority francophone litigant is also not connected. There is no progress on access to justice. How do we reflect that in the legislation, senator? I don’t know, but I think the federal government needs to make its objectives clear with respect to the administration of justice, equal access to justice. It must define the principles of collaboration between the provinces, since the administration is shared. If we do not have this statement of will, we will always be “piecemeal”.
Ms. Effendi: On the issue of acquired rights, I would hope that everyone would now agree that this is a quasi-constitutional piece of legislation. The courts have said so many times: they have been acquired. However, if there is a fear of losing those acquired rights, there are various ways to incorporate them into the legislation, either in the purpose or the preamble of the act. Those provisions are used in interpretations. It is a tool that can be used by federal courts.
We must not forget that there is always room for improvement in the legislation. For example, in terms of the Divorce Act, it is not possible to obtain a divorce in English or French everywhere across the country. There is a gap. Should there be an amendment to this act or to the Divorce Act? It is up to you, but it is important to keep moving forward.
I would also like to address the issue of consultation with official language minority communities. It is a way of ensuring that we are always making progress and meeting the needs of those communities. They are the ones who understand the needs. The tool could be incorporated into the legislation to ensure that acquired rights are preserved and that progress continues to be made to meet their needs.
Senator Forest-Niesing: My thanks to our witnesses, who speak a language I know and that is part of my daily life. Could you specifically address the issue of bilingual judges appointed to the Supreme Court? This is a long-standing issue with which I’m quite familiar.
After consulting the documents — and I apologize if there are any subtleties that I did not grasp, since I read over them quickly — I would like to ask you the following question: to do the trick, what you are proposing is an amendment to the Supreme Court Act and an amendment to the Official Languages Act, which means, first, the individual bilingualism of a judge sitting on the Supreme Court of Canada and, second, imposing institutional bilingualism. In a perfect world, this would be achieved with those two amendments in favour of linguistic equality in the Supreme Court of Canada. Those are big bites, given the situation. Can a significant improvement be achieved by amending either of those acts? If so, which one should be a priority?
Ms. Effendi: AJEFO has not actually addressed which of the two pieces of legislation should be given priority. In a perfect world, we would like the whole system to be changed. However, since we have the Official Languages Act before us — the one you are currently studying — it is important to say that it is a piece of legislation that is fairly easy to amend. I am not saying that this act should be given priority, but since it is before you and would be easy to amend, I would give it priority.
In fact, there’s no real problem. This debate should no longer be taking place in 2018. Clearly, among the appointments that have been made, there are some very competent people who are bilingual and there are many others in the profession. Some have said that there may be a constitutional problem in amending either of the acts, but I think you have heard the views of various constitutional experts. Justice Grammond took the position that a constitutional amendment is not needed to make changes to the legislative system, whether it be to the Official Languages Act or the Supreme Court Act, and we support that position. In our view, one aspect of the qualification of appointed judges should be changed, not the make-up of the Supreme Court of Canada. We need a tool in the hands of this Parliament. We must be able to change everything that comes with the constitutional amendment in this regard.
I’m not sure I answered your question, senator. We have the Official Languages Act before us. It would be easy to make changes. We should move forward. I’m not saying we shouldn’t make changes to the Supreme Court Act, but for now, perhaps we should proceed step by step, if that’s what you’re suggesting.
Senator Forest-Niesing: I have a follow-up question about the way a judge’s language skills are assessed, whether it is on the Supreme Court of Canada or any other court. For positions designated bilingual, it goes without saying that language skills will be assessed. What do you know about what is available to assess those skills? If you had any proposals to make to that effect — because I think you are well aware, as I am, that there are some gaps and that the mechanisms are not necessarily the most rigorous or effective — how would you suggest we go about making improvements?
Mr. Bisson: Senator, thank you very much for your question. One of our members, who is based in New Brunswick, is called KortoJura. A new language industry will soon emerge in New Brunswick around the issue of French and English legal terminology. I am very proud that this initiative is being launched in New Brunswick, because it is a bilingual province.
For the past five or six years, our member, KortoJura, has been working with linguists and judges to create tools to measure language skills, as they are called in legal terms. It is not just about having French language skills, it is also about the need to master legal vocabulary.
They have developed a “legal French” scale of 1, 2, 3, 4. With that scale and the tests being administered, we can really classify the level of legal French of the professional in front of us. It is also possible to determine which level of legal French is appropriate for a certain position or task. It is a tool that exists today, that is already in use. We would like to thank the Department of Justice, which has largely funded the creation of those tools.
To show you an example of something that works, last year, Ontario issued a call for tenders to receive bids from firms or companies that can measure legal skills. It’s for French in the legal field, and KortoJura was admitted to this competition. One province has already put in place all the necessary measures to do so.
It is not enough to say that someone can speak French; they must also be able to do so in legal French. Those tools exist, and we are ready to deploy them further. KortoJura would be happy to answer any questions you may have on the issue.
Senator Mockler: I would also like to join honourable senators in congratulating you on your leadership across the country.
Mr. Bisson, did I understand correctly that mandatory training for police officers in French does not exist in Canada?
Mr. Bisson: French-language training in provincial and municipal police academies — I am not talking about the RCMP — is not available outside Quebec at this time. Community colleges have basic training programs in policing techniques; students are then hired by the forces and go to a police academy. There is not a single basic training program in French outside Quebec.
Senator Mockler: When you talk about a systemic approach, you certainly need the cooperation of all the other provinces, including francophones outside Quebec, to develop an action plan.
I have heard presentations on police training outside Quebec, and the École nationale de police du Québec in Nicolet has always said that it has the infrastructure in place and that it should be used more.
Mr. Bisson: For people outside Quebec, you are right. We have talked a lot about this project in our network. You will also be meeting with representatives from the New Brunswick Community College this week. The Community College is the leader for the project domestically.
There is not a single province outside Quebec where the francophone market is sufficiently developed to allow for a police academy program to be set up. There is no such thing. We want to work with New Brunswick, Ontario, Manitoba, Saskatchewan and Calgary, and build together, with the use of technology, an effective program that would meet everyone’s needs. You’re absolutely right about that.
Senator Mockler: Ms. Effendi, you’re from that area, I believe?
Ms. Effendi: I am from the Edmundston region, yes.
Senator Mockler: I would like to take this opportunity to congratulate you and your family on your great leadership in the francophone fact in New Brunswick.
Ms. Effendi: Thank you, Senator Mockler.
Senator Mockler: That being said, we are in the budget process right now. What amounts would you recommend to the government in order to achieve the objectives?
Mr. Bisson: The national network did a very detailed exercise on this subject, and we came to the conclusion that, to provide the systemic training we want, create the tools, develop an encyclopedia of forms, we would need $75 million over five years.
Senator Mockler: And how would that money be distributed?
Mr. Bisson: There are 16 different initiatives. There would be funds, according to the leaders who bring projects into the world. For example, one of the projects we are interested in is setting up a pan-Canadian centre for all training in language rights at the Université de Moncton. We would like it to be in Moncton.
In Ottawa, there is another project called “PratiquO”, so that lawyers are trained according to their professional requirements. There were projects where each province organized different initiatives, but that one had a Canada-wide leadership role.
Senator Mockler: Is that a related approach?
Mr. Bisson: Yes, absolutely. It is a joint approach.
Senator Gagné: We are asking colleges and universities, as well as legal groups, to collaborate, to take a very complementary approach, to be able to share knowledge, best practices, and so on. Finally, all this is done much more effectively and at a much lower cost to the system for the benefit of Canadians.
Are we asking more of francophones living in a minority situation?
Ms. Effendi: Senator Gagné, I think the simple answer is yes, and the reason is that our group is much smaller than the majority. The reality is that the financial resources are the same for the needs of the minority as for the majority, but there are fewer people who have the capacity to develop the necessary resources.
There is no doubt that we are being asked to do so, but I can tell you that the good news is that we are ready to do it. That’s why there is already collaboration between the network and the Association des juristes d’expression française. The problem is that much of this collaboration is done, as you have heard from other stakeholders, through volunteers and that we are not able to continue to meet increasingly growing needs.
Unfortunately, although we have very competent people, such as Ms. Pilon and the AJEFO team, who are very creative and want to develop new programs, we do not have the financial resources to implement them. All we can do is maintain existing programs, and unfortunately, we are told that we must now manage with fewer resources even for simply maintaining those programs.
Senator McIntyre: Mr. Bisson, in response to a question raised by Senator Mockler, you mentioned the Université de Moncton. The only Canadian universities that offer law programs in both official languages are the Université de Moncton, University of Ottawa and McGill University.
Am I to understand that it would be desirable to expand the offer of French-language programs in English-language law schools or colleges outside New Brunswick, Quebec and Ontario?
Mr. Bisson: The short answer is yes. The slightly longer answer is that it is happening right now. The University of Manitoba, an English-language university with an anglophone faculty, has created a program that is starting to offer courses in French. Two or three years ago, the University of Ottawa introduced a common law certificate in French. Courses are taught in French in English-language law schools at the University of Saskatchewan, Alberta, British Columbia and one other university.
I was in Edmonton this weekend and met 10 French-speaking students studying at the law school in Edmonton in English. They have created an association of francophone students who want to work with the community and to have training in French. They will obviously not have the same level of bilingualism as a graduate of the Université de Moncton or the University of Ottawa, but they will have enough knowledge of French to practice in their community. What’s even more powerful is that they understand the issue of language rights. Suddenly, the news spreads when the school has a small program, and the issue of rights is better known.
I would like to come back to a question from Senator Gagné. There are English-speaking models with which I work that are very interesting. One of them is the Canadian Police Knowledge Network at Holland College in Prince Edward Island. Municipal and provincial police forces collaborated to provide the distance education to 50,000 police officers. It’s phenomenal. I communicate with these people and they are ready to be the conduit for any training in French on language rights, for example. Imagine the tremendous synergy. That’s our goal when we are talking about a systemic approach; we just need the resources to achieve it.
The Chair: Thank you very much. To conclude, I have a quick question about new technologies. We talk about tools, but we have not discussed the issue of new technologies very much so far. Should Part IV of the act be reviewed to clarify the obligations of federal courts with respect to the language of judgments posted on the web?
Mr. Bisson: The short answer is yes. The long answer, with your indulgence, will take a minute. We have just started working with Innovation, Science and Economic Development Canada. We approached them and explained who we were. The Department of Justice provides funding for the training content, but not for the technology to deliver that training across Canada. Right now, we are conducting a study, paid for by Innovation, Science and Economic Development Canada, to see how we could organize a systemic approach to technology so that all training can be accessible on the computers of the professionals or on the smartphone of police officers who stop someone on the side of the road. That’s where we are at now. If we can do that, there must be something to organize at the court level.
Ms. Effendi: Jurisource is one of those examples of technology that’s already available. It is a virtual library that provides the necessary resources, perhaps not at the level of displaying court decisions, but at the level of terminology lexicons and forms. I invite you to consult it when you have a minute.
The Chair: Thank you very much for your very enlightening remarks, which will certainly help us in writing our report.
As part of the fourth stage of our study on modernizing the Official Languages Act, we are pleased to welcome Roger Bilodeau, Registrar of the Supreme Court of Canada. He is with us today to teach us more about the workings of official languages in the highest court in the country, from an administrative, not a political, point of view.
Roger Bilodeau, Registrar, Supreme Court of Canada: Thank you, Mr. Chair. I am very pleased to be with you on this beautiful October evening.
I’m not in a position to make great speeches, but I’m very open to your questions. I’m not sure which aspects of the court’s work might be of interest to you, but I’m ready to answer any questions you may have.
The Office of the Registrar is the federal agency that provides all the services and support that judges need to do their jobs. Of course, we are an integral part of the court, but it is still a separate agency, and the Office of the Registrar and the Supreme Court take the application of the Official Languages Act very seriously.
In terms of administrative procedures, you probably have some questions, otherwise I can probably talk to you about them a little bit, but it might be a good idea to ask questions at the outset, because it would help me to focus my comments. It’s up to you, I’m at your disposal.
The Chair: Thank you. We’ll start with questions right away. This will allow you to enlighten us on the various aspects.
Senator Poirier: Welcome to the committee, sir. We very much appreciate your being here. Last week, the committee heard very good comments about the translation services for Supreme Court decisions. Could you tell us how long it takes to publish judgments and who is responsible for them?
Mr. Bilodeau: Yes, we do have a well-established team at the Supreme Court. We are also very fortunate to have dedicated, competent and very skilled staff that allows the court to produce its judgments in both official languages each year. As for the usual timeframe for the publication of judgments, when the court hears a case, we can expect the judgment to be produced and published within about six months. The average is about six months from the date of the appeal hearing to the publication of the judgment. When judges prepare their draft judgment, and when the draft is relatively ready, it is sent for translation. The initial translation is done externally by the Translation Bureau. We receive the translated text and our staff gets busy revising, editing and fine-tuning the translated text to end up with the finished product.
As I said earlier, we are fortunate to have a team of lawyers, a team of jurilinguists and a team of technical revisers on site to ensure the quality, production, revision, editing and final publication of each judgment. Year in and year out, the court issues about 65 to 85 judgments per year, which is not a large number compared to other courts, and it allows us to look more closely at each judgment to achieve a quality product. Of course, since it is the Supreme Court of Canada and each judgment has a potential impact on some aspect of society or the law, each judgment must be accurate. We cannot afford to make mistakes in terminology, vocabulary or legal concepts. This means that we pay a lot of attention to the quality of the legal vocabulary used in both languages, in English and French, in both versions of the judgment. Therefore, the timeframe is approximately six months for the production, the publication of the judgment. As I explained, members of our internal team do the work with an initial translation by people from the federal government’s Translation Bureau. Does that answer your question?
Senator Poirier: Yes. On another note, the committee also heard about the very poor quality of decisions rendered in other courts. In your opinion, how can the Official Languages Act be amended to provide the same level of quality in the translation of decisions?
Mr. Bilodeau: In the other courts?
Senator Poirier: Yes.
Mr. Bilodeau: I will be a little circumspect, because I do not want to interfere too much in the work of the other courts, out of respect for their independence and status. However, as I suggested earlier, the other courts have a much higher volume of judgments per year. Depending on the number of judgments they have to produce, translate and publish, staff, resources and experience are required. We must also recognize that expertise in the production of judgments or in legal bilingualism in general is limited. We won’t find on every street corner in Canada, jurilinguists, lawyers and revisers who have the talent, skills, training and experience to produce high quality judgments in all Canadian courts. I am not saying that it is impossible, but it will take some time to get to a point where we have enough resources to be able to properly equip all Canadian courts that want or need to produce judgments in both languages. It is basically a matter of resources, training and experience.
Senator Gagné: Two Manitobans in the same evening is pretty impressive. Welcome, Mr. Bilodeau. You just mentioned the issue of the publication of judgments and so on. Could you explain how it works when the Supreme Court hears a case? Are briefs and all other documents filed automatically available in both official languages? Do judges have to wait for everything to be translated before they can process a case? Basically, the whole mechanics of a Supreme Court trial.
Mr. Bilodeau: I don’t want to make a mistake, but to my knowledge, every document that enters the court isn’t necessarily translated. There is a language of procedure for each case that is usually designated or chosen by one of the parties to the proceeding. If a case has been heard in French or in English in the lower courts, it will normally be treated in the same language in the Supreme Court. The parties will submit their documents in the language of the case, but they may choose, in a proceeding, to file it in their language. If, for example, the appellant in a proceeding is English-speaking and the respondent is French-speaking, everyone can plead in their own language, in writing and orally. It is then up to court staff to assimilate and understand these documents, and the same applies to judges. Usually, judges will read in the language of submission. That’s my understanding. Now, I can’t tell you tonight how judges do their job; it’s up to them. As far as we know, documents and submissions are submitted to them in the language in which they are presented.
Senator Gagné: Earlier, you mentioned the importance of having subject-matter experts for the written translation. There is also simultaneous translation available at all times in both official languages, right?
Mr. Bilodeau: Yes, in the courtroom, simultaneous interpretation is available at all times. It’s a golden rule. Therefore, at the Supreme Court, in any proceedings heard, interpreters are present and provide simultaneous interpretation of all presentations by lawyers and judges. Every oral intervention shall be interpreted and translated immediately.
Senator Gagné: You mentioned a delay of about six months before obtaining the finished product of a judgment. How many edits can be expected usually?
Mr. Bilodeau: How many edits of the translated text?
Senator Gagné: Yes.
Mr. Bilodeau: It is the judges’ job, but I know that it can sometimes be five, 10 or 15 edits; it depends on the judgment, its complexity and its length. It must be said that there are also revisions to the original text. The original text is reworked as we work on the translated version. Moreover, as we often see during our work, when a text is being translated, it often leads us to make improvements to the original text, because the translation forces us to think about the wording of the original text in French or English. So there are often several edits, but I couldn’t tell you exactly how many. However, it isn’t unusual for the text to be edited five, 10 and sometimes more times.
The Chair: I have a rather general question. I understand that you don’t have to pass judgment on the translation of the other courts, but what are the greatest obstacles to the proper functioning of the Supreme Court and the main linguistic challenges in the harmonization and evolution of documentation? You mentioned it briefly, but are there any major issues that emerge?
Mr. Bilodeau: In the process of translating texts for the Supreme Court?
The Chair: For example, on language issues related to documentation, what are the major issues that do not facilitate the work of the Supreme Court, or what would it take to further facilitate the work of the Supreme Court? What can you tell us about this?
Mr. Bilodeau: Our staff is very experienced in translating judgments. We have this advantage. What makes it easier for us is that they have the knowledge of the trade, the vocabulary and the skill to do it. So we have an advantage in this regard.
In terms of issues, no doubt each judgment presents its own challenges, if you will, because each judgment is drawn up a little differently. It depends on the judge who writes it; it depends on the number of judges who write the judgment. There may be several reasons. That said, the team we have is fully capable of facing all these challenges.
I would say that, in general, for other courts, you have to ask yourself the question, or one of the questions that can be asked, is the following: do all the judgments of any court or tribunal have to be translated? Some may say no, because it isn’t clear, it is not guaranteed that every judgment in all courts has a significant, major or significant impact on the legal system or on the Canadian public. Some judgments are more important than others, hence the importance of the publishing function in determining, probably in consultation with the Chief Justice or Chief Justice of a court, which judgments deserve to be translated, so that the Canadian audience can read them in both languages.
This is one of the questions I think could be asked. However, in terms of language issues—off the top of my head—I’ll say that it’s the replacement of staff, the notorious succession planning problem that is affecting many sectors of activity, including this one. As we know, demographically, people are getting older and retiring. Where should we look for this expertise, this youth who will make sure that we have competent replacements and who want to pursue a career in a field like this? I would say that this is probably the biggest challenge. In my opinion, anyway.
Senator Mockler: I would also like to salute Mr. Bilodeau. His time in New Brunswick was greatly noted. He has advanced the cause of the French language in both linguistic communities, as well as English.
As Mr. Bisson said, if you will allow me the indulgence of the chair, does the Official Languages Act in its current form take into account recent case law? What decision should Parliament focus on as part of the modernization of the Official Languages Act?
Mr. Bilodeau: On what decision?
Senator Mockler: The Official Languages Act, the modernization of the Official Languages Act; which decisions should Parliament consider, what should Canadian Parliament focus on in order to modernize the current Official Languages Act?
Mr. Bilodeau: First, thank you for your kind words. Now, I’m a little annoyed because my role as registrar also involves a quasi-judicial role in the Supreme Court, which means that I have a role as a lower judge, if you will. Not only that, but as an officer of the Supreme Court, I hesitate to comment on what the government’s directions should be, because there is the executive branch and the legislative branch, as you know. This is one of the things I teach in my presentations, when we receive visitors to the Supreme Court—we receive many from all over the world—I obviously tell them about the three branches of government, and how the Supreme Court plays a role in itself in the judicial field, separate from the other branches. The Senate is one of these branches, of course. I don’t know, it doesn’t seem to be up to me. I wish I could help you, but I don’t know if these are the kinds of questions I can really help you with. Even if I could, I’m hesitant because of the position I hold.
That said, I would say that the governments, any government, would be wise to consult groups such as Ms. Effendi’s, the Association of French Speaking Jurists of Ontario, both in Ontario and elsewhere, consult Francophone communities in the broad sense, official language minority communities in the broad sense, to see what their concerns are. I think we may already know some of them. That is the suggestion I would make.
In terms of Supreme Court jurisprudence, you have lawyers working for the Senate or for the Library of Parliament who can help you. That would be one path to follow.
I’m sorry I can’t give you a better answer, but I think my role prevents me from giving you a more substantial answer.
Senator Mockler: As the jurisprudence says, you are cautious.
Mr. Bilodeau: I always try to be, especially in front of a room as well stocked as this one.
Senator Mockler: Lastly, Mr. Chair, if I may, are the decisions of the federal courts of equal quality in both official languages, in your experience? If not, what measures could the federal government put in place to address this problem?
Mr. Bilodeau: For federal courts, there are four courts: the Federal Court, the Federal Court of Appeal, the Tax Court of Canada and the Court Martial Appeal Court. These are the four federal courts. It’s really a machine separate from mine. I don’t want to comment on their work, it’s not my place, but I’ve heard that it’s largely a matter of resources, having the staff and funds to start producing and publishing judgments in both languages in an adequate and acceptable quality.
So far as they lack these resources, they are still facing a challenge. That’s what I think is the most prudent thing I can tell you. That being said, I know they are making every effort, but given the volume of judgments they make each year, because they deal with a lot more than the Supreme Court, it is certainly not always an easy task, given the resources at their disposal.
Senator McIntyre: Mr. Bilodeau, congratulations on your excellent work, and thank you for being here tonight and for answering our questions.
I understand that the Supreme Court of Canada must submit an official languages report to the Treasury Board Secretariat and Canadian Heritage every three years. Why didn’t the Supreme Court indicate any measures regarding the implementation of Part VII of the act in its official languages annual review?
Mr. Bilodeau: Part VII of the act. I’m embarrassed to say it, but I need to refresh my memory.
Senator McIntyre: That part includes the promotion of French.
Mr. Bilodeau: Ah yes, thank you. This is the first time I’ve been asked this question. I can only say that, in terms of the promotion mechanisms, this is again one of the answers I submitted earlier; for the moment, it doesn’t seem to be the role of the court to submit suggestions to the government on how to promote official languages.
As an arbitrator, the court tries to maintain an independent role—not only does it try, but it always plays an independent role. It would be inappropriate, I think, for the court to come forward publicly to make suggestions as to how the government should do its job or change the legislation. This could jeopardize, partially or totally, its independence.
So, I will leave it there and say that it is simply something that, in our opinion, is the responsibility of the executive branch, the legislative branch, and that to interfere would be to venture onto slippery ground.
Senator Forest-Niesing: Mr. Bilodeau, I am pleased to be able to ask you this question. In my other life, which wasn’t so long ago, I had the pleasure and shock of hearing, in a different context, a police officer telling us about a dispatch service—a dispatcher—who received calls and who had translated the sentence of a woman who was extremely concerned about the personal safety of her spouse. This woman said “Mon mari vient de prendre le bois avec son arme à feu, venez vite”. The dispatcher’s translation said, “armed theft of wood”, which completely changes the meaning. What I want to illustrate with this example is how much attention must be paid to translation and, in assessing the quality of a translation, how much attention must be paid to respect for familiar and regional expressions in order to properly capture the meaning of the intervention. If you tell your doctor, “J’ai mal au cœur”, you may end up connected to a machine, when what you really need is just a bucket.
This is what I’m getting at. I realize that, at the Supreme Court, there is less concern about taking evidence because it isn’t really part of the Supreme Court’s day-to-day, but we also know that some decisions revolve around very specific testimony, which comes from the court of first instance, second instance or the court of appeal, which revolves around an expression and meaning that could include this type of familiar expression.
My question is this: How do you ensure the quality of the translation, taking into account the importance of respecting the regional contextual meaning of these expressions?
Mr. Bilodeau: Thank you for the question. The best I can tell you is that, yes, the Supreme Court is independent, but it is not infallible. We hope that, in the court’s judgments, the meaning is always accurate or, in any case, well rendered in both languages. I can assure you that a check is done. There is a little story that is often told in the court, by the way; it’s a kind of saying that judgments don’t leave the court unless they’ve been reviewed and revised five, six or seven times. A great deal of attention is really paid to each text, to each sentence itself, to ensure that common sense is captured in both languages. It is a bit of a luxury to have fewer judgments to translate and prepare; there is also the fact that we have an experienced and very dedicated staff, who always want to ensure that the work is always done 100 per cent and that the exact meaning of the concept, expression or sentence has always been well rendered in both languages.
This reminds me of an article in a legal journal. I think it goes back to about 1980, in the Manitoba Law Journal; the Latin title was Traduttore, Traditore, a formula expressing the idea that any translation is a bit of treacherous. There is always a risk that a translation will not fully and properly express the exact meaning of the original.
This being said, at the Supreme Court, we attach importance to the importance, for each expression, even an expression from a segment of a judgment of a lower court—and, of course, we cannot modify the judgment of a lower court—if we must use this expression in our own formulation, to give the best possible version.
It is a continuous process, painstaking, as they say, because, indeed, revisers, jurilinguists, lawyers who review each of the judgments spend hours and hours reading, rereading, underlining and correcting, to ensure that almost every word is indeed accurate.
Senator Gagné: For the simultaneous translation in court, how is the quality of that translation evaluated? Does the judge evaluate it?
Mr. Bilodeau: We’re talking about the translation of oral submissions when lawyers plead in court, right?
Senator Gagné: Exactly. How do we ensure that the exact meaning has been understood?
Mr. Bilodeau: We use expert interpreters from the Translation Bureau. These are people who are used to doing this work. They are provided with the documents related to each case before the case is heard, so they can become familiar with the expressions and vocabulary that can be expected in the lawyers’ presentations.
No actual verification is done on site. There is no mechanism that allows it, to my knowledge. Every effort is made to ensure that each interpretation is a faithful and accurate account of what the lawyer presents orally. As far as interpretation is concerned, the dangers are greater than with written translation. With written translation, we have time to review, question and do research, but when we are pleading and there is a simultaneous interpreter, that is the maximum we can do under the circumstances. As for quality, this is the work of the interpreters who are trained and assigned to us by the Translation Bureau.
Senator Gagné: If I understand correctly, the check can be done later from the transcripts.
Mr. Bilodeau: Yes, a check can be done after the hearing by reviewing the transcript.
Senator Gagné: Are transcripts often corrected?
Mr. Bilodeau: I don’t know about that. I could find out and let you know. I don’t think it happens very often, but it’s quite possible.
Senator Poirier: I have additional questions in relation to some of the comments made earlier. Two or three times this evening, you mentioned the six‑month delay for translation. Later, you added that a revision can be done five, 10, 15 or 20 times. Do these revisions take place within six months?
Mr. Bilodeau: When I say five, 10 or 15 times, it varies from case to case. It is rereading, checks. It doesn’t necessarily mean that the entire text needs to be reviewed from beginning to end, but several checks are done within six months.
Senator Poirier: When we talk about translation at the Supreme Court, how many are from English to French, and how many are from French to English?
Mr. Bilodeau: I don’t have any statistics, but we receive more cases in English, and judgments are rendered in the language of the case. If the parties plead in English, the judgment is rendered in English. Actually, the judgment is rendered in both languages, but the work is done first in English and a translation is produced.
Senator Poirier: All decisions are published in both languages?
Mr. Bilodeau: Yes. The judges prepare a draft of an initial judgment. This draft is sent for translation. The translation comes back, and that’s when the hard work of the judges, editors and jurilinguists begins. They take the translation, and they work on both texts at the same time to reach with a final version in both languages after six months.
The Chair: I have a question, and you may have already answered it. Obviously, as you have understood, we are very keen to better understand the issue of translation in the Supreme Court. For instance, if Supreme Court judges receive lower court decisions that are of unequal quality in French and English, what kind of challenge does that pose?
Mr. Bilodeau: It would be better to have a judge answer that, because I wouldn’t want to speak on behalf of judges. They have staff available to help them; they have access to research support. They have legal workers who help them prepare every case to make sure it is well understood. Our legal team also prepares written information for judges. In light of their own experience, they, themselves, can always analyze, read and understand the judgments under appeal. I don’t think there are any major issues in that regard. I’ll leave it at that for now.
Senator Mégie: I have a quick question. We just heard that decisions are published six months later. When a case involves a hot button issue, everyone anxiously waits for the day the judgment is pronounced. Once it has been pronounced, everyone knows about it, for instance, that three out of the nine justices were of a certain view and so forth. What value is attached to the oral portion of a judgment?
Mr. Bilodeau: If the court issues a written decision, there will be no oral judgment. I’ll give you an example. The court hears a case on October 22, and the hearing ends at 12:30 p.m. The judges meet to discuss the case and to plan and prepare the judgment, including its direction. Next, one or more judges begin drafting the reasons, with translation to follow, and so forth.
The judgment is not pronounced orally when a written decision is rendered. The only time a judgment is pronounced is when the court is of the view that it will render a decision immediately, on the same day. That happened last week, by the way. When the court responds in a clear or strong enough manner, it is not necessary for the justices to prepare a lengthy judgment. In that circumstance, at the conclusion of the hearing, they will read a short oral judgment a few paragraphs long. Afterwards, they will prepare the final version of the pronounced judgment in both languages, which will then be published. That’s really the only situation when the court renders a decision orally.
Senator Mégie: I’m going to refer to the assistance in dying case. I wasn’t in the Senate back then. everyone was awaiting the decision, which was rendered orally. What I’m wondering about, then, is the timing and synchronization between the written decision and the oral decision.
Mr. Bilodeau: The judges do not comment. They hear the case and they prepare their judgment. Normally, it takes six to eight months for the judgment to be published. That means there isn’t an opportunity for the court to make a judgment before the decision is published in both official languages.
Senator Mégie: Thank you.
Mr. Bilodeau: Was that clear?
The Chair: To your knowledge, Mr. Bilodeau, does the Supreme Court appointment process include a mechanism to assess judges’ language skills?
Mr. Bilodeau: That question would have to be redirected to the Office of the Commissioner for Federal Judicial Affairs, because that is the organization responsible for the nomination and appointment process for the Supreme Court, as well as the evaluation of candidates. It’s not that I don’t want to be helpful, but I think it would be better if the commissioner’s office were to answer that question.
The Chair: Thank you, Mr. Bilodeau, for your contribution today and your unassailable ethics. We very much appreciate it.
On that note, honourable senators, we will now proceed in camera.
(The committee continued in camera.)