Proceedings of the Standing Senate Committee on
Official Languages
Issue No. 31 - Evidence - Meeting of October 29, 2018
OTTAWA, Monday, October 29, 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 report.
Senator René Cormier (Chair) in the chair.
[Translation]
The Chair: Honourable senators, good afternoon. My name is René Cormier, and I am pleased to be chairing today’s meeting. Today the Standing Senate Committee on Official Languages is continuing with the fourth theme of its study, which deals with the justice sector.
It is our pleasure to welcome Marc A. Giroux, Commissioner at the Office of the Commissioner for Federal Judicial Affairs, and Daniel Gosselin, Chief Administrator of the Courts Administration Service. He is accompanied by Chantal Carbonneau, Deputy Chief Administrator, Judicial and Registry Services.
Before I open the floor to our witnesses, I invite my colleagues to introduce themselves, starting on my left.
Senator Poirier: Rose-May Poirier from New Brunswick. Good evening and welcome.
Senator Smith: Larry Smith from Quebec.
Senator Mégie: Marie-Françoise Mégie from Quebec.
Senator Gagné: Raymonde Gagné from Manitoba.
Senator McIntyre: Paul McIntyre from New Brunswick.
The Chair: Welcome to the committee. We are pleased to have you with us.
Mr. Giroux, the floor is yours.
Marc A. Giroux, Commissioner, Office of the Commissioner for Federal Judicial Affairs: Thank you for the opportunity to testify before you today as part of your study of the Official Languages Act, more particularly as it concerns the justice sector, and for allowing me to say a few words about the Office of the Commissioner for Federal Judicial Affairs.
[English]
I want to explain very briefly what our office does. Our mandate is to promote and safeguard judicial independence. We provide a variety of services to the Canadian judiciary. We are also independent from the Department of Justice. In terms of legislation or policies, while we are consulted from time to time, we are not responsible for those. That responsibility rests with the Department of Justice.
This being said, I want to move on to a few things that will hopefully interest you.
[Translation]
I’ll start with the process for appointing judges to the Supreme Court of Canada. As you know, the process was amended in August 2016. Under it, the government has assigned us several responsibilities, one of which is to determine whether candidates for appointment to the Supreme Court of Canada meet the new bilingualism requirement established by the government, which is that they be functionally bilingual.
The government has established that a judge appointed to the Supreme Court of Canada must be able to read materials and understand oral argument without the need for translation or interpretation and, ideally, be able to converse with counsel during oral argument and with other judges of the court in English and French.
The experts in our language training division therefore established a one-hour, three-part test together with a scale of competencies and measurable performance indicators, evaluation grids and a rating guide to assess candidates based on the criteria the government had established. Every candidate had to achieve a minimum score of 3 out of 5 on each of the components to be considered functionally bilingual and thus to be eligible for appointment to the Supreme Court.
I can discuss this at greater length, if you wish, but suffice it to say the process has yielded two excellent appointments, those of justices Malcolm Rowe and Sheila Martin.
[English]
I want to move on to the process for appointment to the superior courts across the provinces and territories. We administer this process as well. This process has existed since 1988, but very important changes were brought to it in October 2016. As part of those changes, four new questions were asked to candidates in terms of their language abilities: if they can understand court material in both languages, discuss with colleagues in both languages, and do so with counsel as well, and understand oral submissions made in either French or English.
[Translation]
In September 2017, after the justice minister announced the action plan to enhance the bilingual capacity of the superior courts, we added two more questions. If you answered “yes” to the first four, we asked you this: “Are you also able to preside over a hearing in both languages?” and “Are you able to draft reasons in both languages?” If candidates answer those questions in the affirmative, they then undergo a formal evaluation by our office, and we will already have communicated with certain candidates so we can proceed with evaluations in the following weeks.
Third, and lastly, I want to talk to you about our language training. The language training division was in existence even before the Office of the Commissioner was created. After the Official Languages Act was adopted in 1969, a language training division was established and housed at the Department of Justice. Today, we have 480 judges taking language training provided by our office. We offer two types of training: private sessions between a teacher and a judge and immersion courses. The latter vary and are offered to a number of groups: English as a second language, French as a second language and development in French as a second language. There is also an immersion course for francophone judges working in common law provinces.
Our experts have developed modules and are still developing them in various legal fields in consultation with the judges.
[English]
I hope I am within my five minutes, Mr. Chair. I thank you for the opportunity to say a few words. I will be pleased to take your questions whenever you please.
[Translation]
The Chair: Thank you very much, Mr. Giroux. You absolutely stuck to your five-minute limit.
Mr. Gosselin and Ms. Carbonneau, you have the floor.
Daniel Gosselin, Chief Administrator, Courts Administration Service: Thank you very much for your invitation and for the opportunity to answer your questions.
I’ll be brief. First, I would like to introduce the Courts Administration Service and to tell you about the context in which we comply with the Official Languages Act in Canada and about the challenges that entails for the courts and the CAS.
The Courts Administration Service was created in 2003 — 15 years ago — to make all judicial and registry services and all corporate services — departmental services — available to the four superior courts of record: the Federal Court of Appeal, the Federal Court, the Court Martial Appeal Court and the Tax Court of Canada.
Without going into too much detail concerning our responsibilities, I would like to draw senators’ attention to two key aspects of our work that are central to our everyday activities involving the courts. The first is our responsibility to enhance judicial independence. We are a department independent of government for reasons of judicial independence, and one of our responsibilities is to enhance and protect judicial independence.
The second aspect, which is also very important and central to today’s discussion, is our responsibility for the consultations we are required to conduct with members of the judiciary, the chief justices, judges and prothonotaries on the administration of the courts. These two aspects will probably come up frequently in our discussion when I answer your questions.
Much has been said about our compliance with the Official Languages Act, and my impression is that you’ll have a lot of questions about it. Complaints about us have been filed with the Commissioner of Official Languages in recent years regarding translation quality and translation delays. I’ll be able to give you some context when I answer your questions. I want to assure you that the CAS and the federal courts we serve are very serious about their official language responsibilities and the importance of access to justice for all Canadians. That being the case, we have developed various tools in recent years to maximize the way we use the limited resources at our disposal to comply with the act. I will answer your questions on this point in a more detailed way if necessary.
The Chair: Thank you, Mr. Gosselin. We will begin our discussion with Senator Poirier.
Senator Poirier: Thank you for your presentations.
I have a few questions. The first is for the representative of the Courts Administration Service. You say in your 2017-2018 annual report that you are making every possible effort to improve access to justice by reducing delays in the translation of decisions. Can you tell us what action you have taken to reduce translation delays and, if possible, what results you have achieved to date? Do you think changes should be made to the act regarding publication of Federal Court decisions on the Web?
Mr. Gosselin: Thank you very much for your questions. I’ll begin with the measures we have taken. The official languages file is a lengthy one. The dilemmas and challenges we face in complying with the act have been around for a while. First of all, our interpretation of the act relative to that of the Commissioner of Official Languages is really quite controversial. Without going into details, we feel we comply with the act because decisions must be published in accordance with section 20 of Part III of the act, which concerns the administration of justice, as opposed to Part IV, which concerns communications with the public. We believe, based on our interpretation of the legislation, that we are complying with the act.
Delays are obviously a problem. We have a major concern in that regard, and we are putting all kinds of measures in place to reduce them. In recent years, with additional government support received under Budget 2017, we have increased our capacity by adding jurilinguists and revisers to the courts. We have considered the option of awarding contracts to private businesses to secure more competitive rates and to enable us to complete a large number of translations within reasonable timeframes. One issue that I can’t tell you more about is currently before the federal courts, but it’s one of the solutions we’ve tried and evaluated in the past two years, in addition to the services we’ve received from the Translation Bureau.
We’ve also worked in co-operation with members of the courts to determine what other measures might be taken to reduce delays. We have a full-time team devoted to evaluating and reducing delays. We’ve also negotiated with the National Research Council to use a machine translation tool to determine whether it’s an appropriate way to speed up the translation process. So several measures have been put in place.
The machine translation tool requires an enormous amount of manipulation. One person is needed at all times to ensure that the translations the tool generates in fact reflect the intended meaning of the original language. It will never be a perfect tool. The accuracy rate is currently near 70 per cent. The tool will never replace the services of a translator or a jurilinguist, but it can be used to speed up the process, even though that option requires further investment.
Unfortunately, the team of jurilinguists that has been added doesn’t meet all the courts’ needs. At our current capacity, we can provide high-quality service in roughly 25 per cent of the translation files we have to produce. A great deal of work remains to be done. We are in talks with the government to determine whether we can secure additional resources. It’s all about the resources. There is a direct correlation between the resources made available to us and our ability to provide the service.
Senator Poirier: I have a few brief questions. To get a better handle on the volume you produce, can you tell us how many decisions are rendered every year by the Federal Court of Appeal, the Federal Court, the Court Martial Appeal Court of Canada, the Tax Court of Canada and the superior and appellate courts of the provinces and territories? How many of those decisions are translated, within what timeframes and who handles them?
Mr. Gosselin: I can answer your question as it pertains to the Federal Court of Appeal, the Federal Court, the Court Martial Appeal Court and the Tax Court of Canada. I’m not responsible for the other entities you mentioned.
Generally speaking, 2,500 decisions are rendered by the courts and must be translated under the Official Languages Act. These are final decisions. In addition to the final decisions, I have received instructions from the chief justices of the courts concerning the translation of certain interlocutory decisions that are of significant value to the courts and the judicial community. Adding the interlocutory decisions to the courts’ final decisions, we’re talking about some 4,000 decisions that must be translated annually. I could give you some estimates, but I don’t have the exact details for each court.
Chantal Carbonneau, Deputy Chief Administrator, Judicial and Registry Services, Courts Administration Service: Each decision runs to 3,500 words on average. If you include final decisions and interlocutory decisions, more than 10 million words has to be translated. Cost is calculated by the word in the industry. That’s why this is an important figure.
Mr. Gosselin: We made a considerable effort to reduce translation timeframes this past year. Not so long ago, it could take 18 months before a translation was available for publication. So that’s a considerable improvement. At the Federal Court of Appeal, we’re currently talking about 95 days, slightly more than three months. For the Tax Court of Canada, it’s five months. The Federal Court’s decisions are currently not revised. That’s a significant deficiency, and the resources we need could meet that demand. The file comes back translated from the Translation Bureau or from suppliers within approximately 35 days, about a month. You have to add a week for publication. I’d say that Federal Court decisions can be posted within five or six weeks. With regard to quality control, however, no decision is revised, hence the complaints we receive from the community about translation quality.
Senator McIntyre: Thank you for your presentations. I understand your two institutions are required to submit an official languages report to the Treasury Board Secretariat and Canadian Heritage every three years. My question is this: Have your institutions stated in their annual official languages report what measures they have taken to implement parts IV, V, VI and VII of the act? If not, why not?
Mr. Gosselin: We’ve always expressed our concerns about the act. I don’t remember the last report we filed.
The Commissioner of Official Languages’ report was released in November 2016. I don’t know whether a subsequent report was prepared. We were very careful before the commissioner’s report was tabled as the matter was under investigation and talks were under way with the government to obtain more funding. We were cautious about what we said, but we always claimed we needed additional resources to meet the growing needs of the courts.
I also mentioned 4,000 decisions earlier. Incidentally, we anticipate an increase in the number of decisions for translation as a result of the new legislation and other measures taken to address tax evasion and immigration cases. Consequently, that number may increase slightly.
Getting back to your question, I don’t remember the last report or what it stated, but I can tell you we’ve had several discussions about translation needs with federal representatives, the central agencies and the Department of Justice.
Senator McIntyre: Mr. Giroux, I’d like to hear your opinion on the report issue?
Mr. Giroux: As far as I’m concerned, senator, the requirements under Part III of the act have no consequences for us given our duties, but I’d be pleased to inform you at greater length and to provide you with information on the last report on our internal operations.
Senator McIntyre: You’ll keep us up to date?
Mr. Gosselin, you mentioned funding. In the 2017 Budget, the federal government announced $2 million in financial support over two years. That funding is mainly allocated for translation of the decisions of the federal courts. Apart from that funding, what other tools are needed to ensure equal access to justice in both official languages?
Mr. Gosselin: We spend a total of approximately $4 million on translation every year, including an average of $2.5 million on outside translation services from the Translation Bureau and private sector translation businesses. The rest of the budget is intended for internal resources — our employees and jurilinguists — to manage that function. As I mentioned earlier, we are able to meet reasonable deadlines and provide the required level of quality in approximately 25 per cent of cases. We would need to increase our budget significantly to meet all needs. A proposal is currently before the government. I can’t really give you any details on it, but there is a proposal, and the required investment is quite significant.
Senator Mégie: One of the letters we received from the Canadian Bar Association reads as follows:
Of the 31 documents declared in the Constitution Act, 1982 to be part of the Constitution of Canada, only nine have been enacted by Parliament in both official languages...
That means approximately 9 out of 31. Has the number remained unclear because there hasn’t really been any real impact? Do you have a few specific examples that might illustrate the consequences of that for people seeking access to justice in both official languages or in their language?
Mr. Gosselin: Is the question for me?
Senator Mégie: Yes, or for anyone who wants to answer it.
Mr. Gosselin: There are major consequences. We regularly hear about them. It’s a comment we hear when we meet with representatives of the Canadian Bar Association. That point is raised in all the liaison committee meetings — the federal courts cover several jurisdictions. The issue is raised when our chief justices have to meet with the community at general or annual meetings. It’s extremely embarrassing that the courts don’t have the resources to comply fully with an act. If you’re subject to something, you should have the necessary resources.
That’s not a criticism of the government. We’re working with the government to determine the most efficient and economical way to meet that need. For the moment, however, the courts are in a situation where they can’t meet their statutory obligations respecting reasonable timeframes because they lack the resources. The point is raised regularly.
One of the witnesses who appeared before your committee, Mr. Bisson, the director of the Réseau national de formation en justice, discussed the unfair situation between anglophones and francophones regarding the availability of decisions. English is the source language in which approximately 85 per cent of our decisions are drafted. You could say that anglophone candidates for the profession are at an advantage over francophones since they have access to more decisions.
We regularly hear that Canadians in general and lawyers who appear before our courts don’t necessarily have access to the decisions. I would like to draw your attention to one important point, and that is that the government appears before our courts 95 per cent of the time. The Department of Justice has access to all decisions, whereas the rest of the legal community doesn’t as a result of significant translation delays.
So I’ve just given you a few examples illustrating the significant consequences of this deficiency.
Senator Mégie: Thank you.
Mr. Giroux: Since we don’t have a courts administration function, that has no impact on our duties.
Senator Mégie: Thank you.
Senator Gagné: Welcome to all three of you. Thank you for accepting our invitation.
Mr. Gosselin, I’m going to continue in the same vein. What I understand is that funding is quite a significant barrier.
Mr. Gosselin: Absolutely.
Senator Gagné: Tell me about labour availability. Is there a shortage? If so, is there a remedial plan to address that shortage?
Mr. Gosselin: The proposal currently before the government takes those constraints into account. It’s a well-known fact that there are not enough jurilinguists in Canada to meet our needs. The proposal currently before the government takes those factors into account.
We propose to hire additional jurilinguists. I think that’s a very reasonable proposal given the number of jurilinguists we have. We also propose to add more revisers to our revision team and to establish a partnership with the Translation Bureau. Consequently, these three factors and certification from the Translation Bureau, with the associated costs, would enable us to meet our obligations more adequately.
Senator Gagné: Is the private sector brought in to help with translation?
Mr. Gosselin: We currently have a case before the courts. I can’t really answer your question.
Senator Gagné: I’ll move on to another question. Mr. Giroux, could you tell us about the judicial appointments process, particularly about the criteria established to determine the percentage of judges required in each of the provinces to facilitate access to justice for people requesting a trial in English or French?
Mr. Giroux: As I said earlier, the process was extensively changed in 2016, and the questions are now much more specific, regarding, for example, what skills the candidates claim they have.
A single, very general question was asked before 2016, and it concerned candidates’ language skills. Now there are four questions. In addition, there are two more questions to ensure that the answers the candidates provide on their questionnaires are true and that their statements can be verified. We’ve developed a test to determine that. It’s quite difficult to determine the number of judges across the country who have the required linguistic competencies. Since last year, however, we’ve published statistics on candidates who say they’re functionally bilingual and appointments of judges who are in fact bilingual.
Since issuing statistics last year, we’ve published new figures essentially on language and aspects of diversity among judicial candidates and appointees. Just to provide you with a few figures, I’ll begin with last year. We received an incredible number of applications. Since the process was new, there was an increase in the number of applications. Out of 997 judicial candidates who applied, 300 answered “yes” to the four questions concerning language skills. Of the 74 judges appointed last year, 24 had indicated they had the four skills. The judicial advisory committees in each of the provinces are obviously asked to assess and consider this criterion and the skills of those persons.
Coming back to this year, there was a decline in the number of applications in view of the fact that applications are valid for a two-year period, and there was an increase in the number of applications last year. This year, we received 252. Of that number of applicants, 73 answered “yes” to the four questions on their language skills. Of the 79 new appointees, 21 indicated that they had the four required skills.
I’d like to make it clear that these statistics concern new appointments, as distinguished from those in which the individual was already a judge but was appointed to another court. That would include, for example, a trial court judge who was appointed to an appellate court. We unfortunately don’t have any statistics on this because their nomination process was not the same as today’s.
Senator Gagné: I’d like to ask you to clarify something for me. How is the necessary number of bilingual judges determined in a province like Manitoba?
Mr. Giroux: That’s a very good question. Currently, when the minister is required to make appointments, she consults the report of the province’s advisory committee, which takes linguistic competency into account. Similarly, when the minister begins her own consultations with the chief justice, that’s definitely one of the important factors she must consider in asking the following questions: Does the court need bilingual judges? Are there any? Are there any who were not bilingual and have become bilingual, or who have taken training?
Among these factors, I would obviously mention the expertise required on the bench and geographic balance, for example. That’s one of the major factors that must be considered in the judicial nomination process.
Senator Gagné: Thank you.
Senator Smith: Mr. Giroux, when you say that candidates must score at least three out of five points on the evaluation, do you know who the individuals are who conduct those evaluations and how many there are? How do you ensure uniformity across evaluations? Is there a balance between the people who evaluate skills and those who make appointments?
Mr. Giroux: We’re essentially talking about appointments to the Supreme Court of Canada. To put matters into context, this is a new process for appointments to the Supreme Court of Canada, and a pre-selection committee has been asked to prepare a short list for the government.
In essence, every person who had been a member of the Bar for 10 years was eligible to apply. Our office received the applications, and a committee struck by the prime minister and chaired by the Right Honourable Kim Campbell was then asked to conduct a candidate pre-selection.
As part of its work, once the committee had determined the candidates it was interested in, it interviewed them. They had to come to our offices for an interview before the committee. Following the interview, they weren’t finished and went to another floor at our office to take a one-hour test administered by language training experts.
To develop the test, we used the criteria the government had established: that the person had to be able to read material in the other language and converse with the parties before him or her.
We developed a test divided into three parts of 20 minutes each. In the first part, we presented a legal document to candidates and asked them questions to assess their comprehension. In the second part, we read a submission to the candidates, again in order to verify their comprehension. In the third part, we had to determine whether the person was able to speak in the other language without any problem.
We established a rating grid with questions to be put to the candidates. To ensure consistency in the results of all candidates, the same two evaluators from our office evaluated them. Based on the grid we prepared, they assigned a score from 1 to 5 for each of the three parts. The applicable pass mark was 3 out of 5. The idea was to meet the “effectivement bilingue“ criterion established by the government. I prefer the English expression “functionally bilingual”, and evaluators had to ensure that candidates met that criterion.
Senator Smith: Do you think a score of 3 out of 5 is adequate? Since training is now provided and the government has made improvements to the judicial appointments process, do you think results will improve? A score of 3 out of 5 may be perceived as not necessarily a strong qualification.
Mr. Giroux: We acted based on what the government had anticipated in the change it made to the appointments process. There had previously been no bilingualism requirement for candidates, nothing at all, and the government could appoint essentially unilingual anglophones or unilingual francophones.
Consequently, in 2016, we established this criterion, and I know the issue of bilingualism on the Supreme Court has been discussed at length. The government set a minimum that candidates who are appointed must achieve to meet the definition of “functionally bilingual”. If the government had established a higher bilingualism threshold, we might have developed a test that would have helped meet that criterion.
However, given the fact that the established criterion — which, to a certain degree, was a bold one in the circumstances — was “functionally bilingual”, that was the minimum threshold we aimed for in our evaluations.
Senator Moncion: Good evening and welcome. I apologize for being late. I unfortunately didn’t hear your opening comments, but I will listen to what you said and read what you wrote.
Mr. Giroux, I would like to hear what you have to say about the constitutionality of the appointment of bilingual judges.
Mr. Giroux: Senator, it would be a pleasure to discuss that with you, but I’ll begin by telling you that the mandate of my office is to provide services to the federal judiciary and to protect its independence. We are somewhat caught, you might say, between the duties of the minister and of the Department of Justice, from which we are independent, and, for reasons of judicial independence, the mandate to promote judicial independence. Thus, the policy on this matter is established by the Department of Justice, not by our office.
However, the Department of Justice determines the necessary criteria. The issue of whether that’s constitutional is important. I understand that various opinions have been expressed here. The only thing I can tell you on the subject is that I would applaud at least the introduction of criteria respecting the type of bilingualism that has applied since 2016 and that did not previously exist.
I’m sorry but I can’t answer your question and give an opinion since that’s not one of my responsibilities.
Senator Moncion: Thank you. Mr. Gosselin, I have two questions for you: How do you determine which judgment gets translation priority, and how do you function when you receive a request from the public?
Mr. Gosselin: We function in full compliance with section 20 of Part III of the act. Two types of decisions therefore take priority: those for which the proceedings were conducted in whole or in part in both official languages and those that are of significant public interest. In both cases, we request a simultaneous translation, and, failing any indication to the contrary by the judge or a chief justice, we give priority to those two types of decisions.
Section 20 gives judges the discretion to exercise their judicial independence where they are of the opinion that the delay would be prejudicial or result in hardship to one of the parties. In those circumstances, in accordance with instructions received from the judge or chief justice, the court may issue a decision in one official language until the translation is available at the earliest possible time. Section 20 dictates how the service proceeds with the translation and publication of decisions.
We have an internal policy and jargon that enable us to determine the level of priority, but it’s in accordance with the instructions we receive from the judge or chief justice.
Senator Moncion: If you receive a request from an ordinary citizen, is it still section 20 that comes into play?
Mr. Gosselin: If we receive a request for access to a decision that has not yet been translated, we give priority to those requests as well. Our objective is to promote access to justice. If a decision is one in a batch of decisions for translation, and we receive a request, we try to speed up the process to make it available as soon as possible.
Senator Moncion: And if it isn’t in a batch?
Mr. Gosselin: They’re all in a batch. A decision enters the translation process the moment it’s rendered. Whether it’s a priority 1, 2 or 3, it’s part of the process, and it’s sent to the Translation Bureau. The concern is not to translate the decision but rather to ensure quality control. The timeframe for translating a decision is usually about 15 days. The issue is that, once it’s received, we must proceed with quality control of the translation. I may be exaggerating slightly when I say a timeframe of 15 days. Thinking it over, I would say it’s more like a month.
The process consists of a series of stages. The first is the translation, which is done relatively quickly. I believe my Supreme Court colleague Mr. Bilodeau described the same situation. The second stage is quality control and obtaining the judge’s approval for publication. The four courts that I serve are all itinerant courts; the judges are often on the road, and it takes time to obtain their approval because of the volume of transactions we have to manage and the decisions that must be reviewed.
The Chair: I have a few questions before we move on to the second round. I’ll ask them all, and then you can answer them.
Mr. Gosselin, some of the witnesses we have heard criticized the wording of section 20, which you just discussed, particularly with regard to the degree of public importance. I don’t have the exact terminology, but do you think a clarification in section 20 would be helpful in improving the process of classifying judgments as having translation priority, if there is an improvement to be made based on what is stated in section 20? We’ve heard several comments to the effect that this section perhaps lacks clarity.
If I understood you correctly, earlier you mentioned that a machine translation tool is used but that it will never replace translators or jurilinguists. If that’s the case, what’s the point of the tool? This has raised considerable concern, particularly in the minority language communities.
Mr. Giroux, further to Senator Gagné’s question, a bill has been introduced in Parliament that proposes to designate bilingual positions in the superior courts. Do you believe a legislative amendment would more effectively meet needs and ensure equal access to justice?
Lastly, the government has just passed regulations under Part IV of the act, in which it makes improvements to the way the bilingual regions of the country are determined, more particularly by expanding the definition of the term “francophone”, for example. Will this approach make any changes to the way we determine which region is bilingual and how many bilingual judges must be appointed in a region or not?
Mr. Gosselin: Thank you for your questions. With respect to the comments you heard concerning the clarification of certain notions in section 20 such as reasonable delays and the degree of importance of the decision, I retain a right of reserve to answer that question because I think it’s central to the debate on judicial independence. It’s really up to the judge to determine whether a decision is important and to establish its degree of importance. We obviously respect the fact that it’s up to the executive branch to decide whether to modernize the act, but I hope that, in that modernization effort, judicial independence and the discretion granted to judges and prothonotaries to make their decisions regarding those two concepts will be respected.
I may not be answering your question fully, but I’m exercising my right of reserve with respect to judicial independence.
As for reasonable delays, we must ensure that the judicial community, students and the general public have access to decisions as soon as possible. Does a reasonable delay simultaneously mean a month, two months or three months? We can all give what we think is the best definition of a “reasonable delay”. I think there’s an attractive proposal before the government right now, and, from all the signs I am seeing from the minister, she wants to work with us to find an efficient and economic way to meet requirements.
The other point I would like to make is that, in the report it tabled in December 2017, the House of Commons Standing Committee on Official Languages expressly referred to this point, that is to say, whether we should define what we mean by an important decision. In the response that it tabled in March 2018, the government avoided answering the question for the same reasons I just outlined regarding judicial independence. The government’s response was that it would continue to work with me to find the most acceptable compromise to meet our requirements.
The machine translation tool won’t replace translators or jurilinguists, but we have fully bilingual judges who often use it for writing purposes. Some judges prefer to draft their own decisions in their language of choice, and, if they want to switch from English to French, they do. The tool can help them. It’s really a drafting tool to assist the judges. It could also be used for administrative purposes, but it will never replace revisers in the process of translating court decisions. It’s a tool you use as an assist.
Mr. Giroux: To answer your questions regarding the designation of bilingual positions, senator, it’s up to the Department of Justice to determine whether that should be done, and my role would be to implement what’s decided.
At the moment, the minister and chief justice or the chief justice of the jurisdiction in question are responsible for determining whether there is a need for bilingual capacity in the courts. This question is being raised in the other consultations the minister is conducting. Is it reasonable? It raises other questions. A constitutional issue would arise if it were to be determined that the federal government’s authority to appoint superior court judges under section 96 of the Constitution Act, 1867 conflicts with a bilingual position designation.
The other issue is that, unlike at the Supreme Court of Canada or even in the system in effect in the provinces for appointing judges to provincial courts, when a position becomes vacant, it is advertised. People can then submit their applications. The system in place for the superior courts is one in which applications are assessed, regardless of whether there are any vacancies. When a position is vacant, the minister is able to draw on that pool of candidates who are recommended or highly recommended by the advisory committees. A bilingual position designation would raise questions on the constitutional issue and also as to whether the present system should be thoroughly amended.
The Chair: I see. Thank you very much, gentlemen. Now we will move on to a second round. I invite you to be brief with your questions and answers so we can stick to the time allotted to us.
Senator Mégie: Mr. Giroux, earlier you said, in response to a question from Senator Gagné, that there was an advisory committee in every province to evaluate judges who submit their applications. Does Quebec have the same bilingualism obligation in selecting its judges?
Mr. Giroux: Thank you for that question. Yes, advisory committees in every province and territory are responsible for assessing the skills of people who apply for judicial appointments. There are two in Quebec: one for Québec Ouest and the other for Québec Est. The criteria the advisory committees use are the same and are published on our website. We consider candidates’ professional competencies and personal characteristics, which are also very important in determining whether someone is suited to becoming a judge. Bilingualism is one of the criteria used in assessing those competencies. Consequently, the fact that a candidate is not bilingual doesn’t preclude him or her from being appointed or from being favourably recommended by the committee, but, if you’re bilingual, that’s another feather in your cap that may encourage the committee to give you a positive recommendation.
Senator Mégie: But more so that of Québec Est or Québec Ouest?
Mr. Giroux: It would be exactly the same for both committees.
Senator Mégie: Perfect, thank you.
Senator McIntyre: Mr. Gosselin, as you mentioned earlier, your institution provides services to four federal courts, including publication of decisions on the Web. I understand there’s a lag between the postings of the two versions of decisions on the Web. Is that lag a significant barrier to access to justice in both official languages? If so, should changes be made? Should we draw on the model that’s been put in place at the Supreme Court of Canada?
Mr. Gosselin: Thank you for that question. When you say “lag”, do you mean “delay”?
Senator McIntyre: Yes.
Mr. Gosselin: Yes, there are significant lags. Our objective is to provide access to justice for all Canadians. Consequently, that’s a significant barrier to access to justice. I don’t think it’s a realistic idea to draw on the Supreme Court model. The Supreme Court publishes 65 to 85 decisions a year. It has teams of jurilinguists to assist the CAS and judges in drafting their decisions. We’re talking about 4,000 decisions in our organization. Since the judges are constantly on the road, the resulting volume prevents us from using the Supreme Court model. On the other hand, notable improvements can be made if we’re granted the necessary resources to meet our needs. The model will obviously have to be evaluated as we move ahead and the resources are provided to us. I’m quite certain we’ll be able to meet those needs with the government’s commitment and the discussions I’m currently leading.
Senator McIntyre: A little funding could help the situation.
Mr. Gosselin: Absolutely. I hope it’ll be a lot of funding rather than a little. Even though I’m grateful for the $1 million allocated to us in 2017, it was too little.
The Chair: Thank you, madam and gentlemen, for your presentations and the quality of your answers and professional ethics. We will take note of your comments. Now we will hear from our next witnesses.
We are pleased to welcome Mark Power, Chair of the French Speaking Common Law Members Section of the Canadian Bar Association. We also have Marc-André O’Rourke, a lawyer with the Legislation and Law Reform Section of the Canadian Bar Association. Gentlemen, the floor is yours.
Marc-André O’Rourke, Lawyer, Legislation and Law Reform, Canadian Bar Association: Good evening, Mr. Chair and committee members. Thank you for inviting me to appear before you this evening.
My name is Marc-André O’Rourke, and I am a lawyer with the group representing the Canadian Bar Association. The CBA is a national association that represents more than 36,000 lawyers across the country. The CBA’s main objectives are to improve the law and the administration of justice, and that is why we are here this evening on behalf of the CBA’s French Speaking Common Law Members Section and Constitutional and Human Rights Law Section.
[English]
I am accompanied by Mark Power, Chair, French Speaking Common Law Members Section of the Canadian Bar Association, and we are pleased to comment on your committee’s study on modernizing the Official Languages Act.
[Translation]
The CBA has demonstrated a profound and long-standing commitment to bilingualism in the law and access to justice in French. I’m going to turn the floor over to my colleague, Mr. Power.
Mark Power, Chair, French Speaking Common Law Members Section, Canadian Bar Association: Good evening and thank you for your invitation. I do volunteer work in my free time with the Canadian Bar Association. You’ve already received a tabbed paper copy of a written submission and brief signed by the Canadian Bar Association, more particularly by two of its sections: the French Speaking Common Law Members Section and the Constitutional and Human Rights Law Section. I would like to thank the people who helped prepare those documents, in particular, Allan Damer and Patricia Paradis from the University of Alberta, and Audrey Mayrand and Darius Bossé.
[English]
In the very little time I have in terms of introductory remarks, I will try to hit on a few points. The first is that 71 per cent of constitutional documents have effect only in English. That’s quite a statistic.
[Translation]
The Constitution requires that these documents be translated into French. That obligation was completed in 1984 by experts in the field, people like the late Senator Gérald Beaudoin, former justice of the Supreme Court of Canada Louis-Philippe Pigeon, Robert Décary, who became a Federal Court judge, and Gil Rémillard, a Minister of Justice for Quebec.
[English]
All of this reviewed and approved by Kim Campbell.
[Translation]
Consequently, a great deal of work was done, but the problem is that it was never implemented. The Canadian Bar Association urges you to encourage a little action in this area. I know I’m speaking on behalf of the CBA when I say the remarks the previous witnesses made were encouraging. With regard to substance, the Canadian Bar Association’s legislative proposal is outlined on pages 6 and 7 of our brief.
The CBA proposes that a new official languages act include a section that we have provided in draft form for your consideration. The first subsection provides: “The Minister of Justice shall undertake to use best efforts...” For the jurists in the room, the term “best efforts” is legalese. The minister alone can’t solve the problem, but he can at least try.
Then, in the second subsection, the CBA proposes that the Minister of Justice be accountable and report to Parliament every five years. Sometimes there’s a risk the report will state that there’s no commitment on the part of the provinces. Sometimes the minister will have some work to do. The CBA’s idea is that, if the minister is required to report every five years, the issue won’t be forgotten, as has previously occurred in the legal community.
I think it’s important to emphasize, as my colleague Mr. O’Rourke noted, that the CBA is a national association representing thousands of lawyers and that one of the letters you have before you — the letter of August 14, 2018, signed by Gaétan Migneault, a former lawyer with the Office of the Attorney General of New Brunswick, and co-signed by Veronica L. Jackson, a Victoria lawyer who has since been appointed to the Supreme Court of British Columbia — underscores the national scope of our actions.
Second, I would like to say a few words about the more general reforms the Canadian Bar Association is seeking. Those reforms are outlined in Annex C of the package you have before you. You’ll see it has tabs to facilitate reading.
In tab C, you’ll find a letter from November 2017, signed by none other than Kerry L. Simmons, then president of the CBA, essentially outlining five ideas. The first is that the Official Languages Act should be amended for the purpose of legislating on the language requirements applicable to provincial superior court judges. What are we talking about? For example, we are talking about the Court of Queen’s Bench of Manitoba, the Superior Court of Québec and provincial courts whose judges are appointed by the Government of Canada.
Second, the Canadian Bar Association requests that section 16 of the act be amended to repeal the exception provided for the Supreme Court of Canada.
Third, the Canadian Bar Association recommends that Part IV of the Official Languages Act be amended to take into account the vitality of the communities. You’ve no doubt seen that the Canadian government recently announced new regulations. That’s all well and good, but the Canadian Bar Association invites Parliament to consider vitality criteria, such as the identification of primary and secondary schools, as signs of significant demand under Part IV.
Fourth, with respect to Part VII of the Official Languages Act, the Canadian Bar Association asks that “positive measures” be defined — I know you understand that subject — and that mechanisms for consultation be specified and, especially, prescribed in the act.
Fifth, the Canadian Bar Association asks that the Commissioner of Official Languages play a more active role and that he must — not only may — institute court actions in certain cases.
In closing, the Canadian Bar Association notes that, notwithstanding the good intentions of the many people who drafted the present act in the 1980s, it is a struggle for that act to be respected. People are entitled to their opinions, but, in the view of the Canadian Bar Association and its two sections, modernization of the act is necessary.
Now we will be pleased to answer any questions you may have.
The Chair: Thank you very much, gentlemen.
We will begin our discussion with Senator Poirier.
Senator Poirier: Thank you for your presentations. The sixth recommendation in your brief concerns two points that often come up in our committee meetings: implementation of the act and the role of the Commissioner of Official Languages.
My first question concerns the implementation of the act. As you no doubt saw this summer, there was a cabinet shuffle, and Minister Joly changed positions but retained the official languages portfolio. Can you comment on the present situation in which the Minister of Official Languages is now separated from the Department of Canadian Heritage? In addition, what do you think would be the best approach to ensure effective implementation of the act?
Mr. Power: Senator Poirier, the Canadian Bar Association doesn’t have a position on your specific question. At most, as you noted at the outset, the sixth recommendation concerns the Commissioner of Official Languages and the more active role he should play.
From a purely personal standpoint, and speaking solely for myself, not on behalf of the Canadian Bar Association, the position of the FCFA, Quebec anglophones and others is the right one, that is to say that a central agency should play a leading role. So much the better if there’s a department of official languages and a minister or department assigned to the task, but, in reality, I think that architecture should be prescribed by the act and not achieved through accommodations.
I shouldn’t say any more about that, Senator Poirier, given the topic before us, but especially since I’m here on behalf of the Canadian Bar Association, not on my own behalf.
Senator Poirier: You recommend improving the mechanisms for implementing the act. Can you clarify what mechanisms should be improved and how?
Mr. Power: That’s a very broad question, Senator Poirier. I’ve already emphasized the role of the Commissioner of Official Languages. In the CBA’s view, it would already be significant if the commissioner were required to do more.
However, consider the language requirements of judges, to cite a more specific example. The witnesses who were here earlier explained how much more the federal government is doing to assess language skills — Senator Smith asked a question about that — to try to increase the number and perhaps especially the quality of the language skills of judicial appointees.
Of course, the Canadian Bar Association applauds the initiative, but, as we explain in the documents before you, we would like it to be codified so we can ensure greater stability and perhaps even certainty of language quality. What’s the benefit or appeal of that in the CBA’s view? It’s, of course, that it will improve access to justice and ensure that, when parties must turn to the system, it can more quickly and efficiently meet the language needs of litigants across the country.
Senator Poirier: I’d like to go back to the subject of the commissioner. I’d like you to clarify your position somewhat. You recommended that the Commissioner of Official Languages play a more active role and specified, for example, the circumstances in which he “must”, not only “may”, institute and participate in court actions.
What do you mean by a more active role, and in what circumstances do you think he should institute actions?
Mr. Power: Thank you for your question, senator. In tab C of the package you have before you, you’ll find the letter from Kerry Simmons, president of the CBA. It’s a letter dated November 3. In the CBA’s view, the second and third last full paragraphs on page 3 explain the problem in some detail.
The purpose of the CBA is, notably, to try to improve access to justice. When the Office of the Commissioner of Official Languages of Canada, which is quite a major institution, participates in court sessions, it usually does so as an intervener, rarely as a principal party, and rarely establishes the evidence necessary for a Federal Court judge to decide a matter.
As I think you can imagine, you don’t draft and prepare evidence overnight. That takes resources and experience.
If the commissioner played a bigger role in that area, either by preparing more rigorous investigation reports, together with evidence to support his findings, or by going to court more often, that would be a specific example of a change in the role of that institution that, in the CBA’s view, would result in greater access to justice.
Of course, everyone, including the CBA, wants to avoid going to court, but, in the CBA’s view, we should not avoid the courts for lack of resources, hence the specific recommendations made in the last three full paragraphs on page 3.
Mr. O’Rourke: I’d like to add a clarification to one of our suggestions. We would like the commissioner to appear as the plaintiff where possible, not solely as an intervener.
Senator Gagné: I’d like to go back to the right to a bilingual Constitution. I’m trying to get a clearer understanding of what you’re proposing. The problem isn’t translation as such because I imagine it’s translatable.
Mr. Power: And it’s translated.
Senator Gagné: You’re recommending that Parliament add an enforceable section to the Official Languages Act. Why this impasse? I’m trying to understand why we wouldn’t take action.
Mr. Power: Senator Gagné, I think the CBA’s main brief provides a partial answer to that question, on pages 4 and 5, where you’ll see two subtitles: “Political impasse” and “Legal impasse”. I think your question concerns the first subtitle, “Political impasse”.
In a word, Canada was going through tough times when the translation was completed in 1990, and there may have been more pressing issues at the federal level. That may explain some things. Given my role this evening, perhaps it would be preferable to read the CBA’s brief. Relations between Ottawa and Quebec were very tense, and Quebec had refused to take part in the process.
In the CBA’s view, circumstances have changed enough to warrant re-examining the issue. The CBA’s recommendation is quite modest. We’re not seeking amendments to the Constitution. We acknowledge that all kinds of political considerations are still relevant. The recommendation on pages 6 and 7 would at least require the minister to continue thinking about the matter and, especially, to report on it, whether it be to say that she has done nothing at all or that she has managed to enact certain documents but not all.
Senator Gagné: How can you explain why, even today, we still refuse to do something as simple as ensure that the Constitution is translated?
Mr. Power: If I may answer as an individual, there are two points. These remarks don’t appear in the CBA’s brief; they come from me. The Constitution has been amended a number of times since 1867. I’ll cite the example most relevant to your situation. In 1965, the age of retirement for senators was amended by an act passed in Ottawa in English and in French. So this has happened regularly since 1867, and even since 1982, and notably in 2011, when the Conservative government enacted the Fair Representation Act. The Constitution has been amended since that time, and it was done in English and in French. Constitutional documents are slowly being translated into French, but there’s still a big lag. Go to the CBA document and look at Annex D, which is the very last annex.
[English]
In Annex D, you’ll find a list of the texts that remain in English only, and it’s still striking. That’s why the CBA is here today and wanted to shed more light on this.
I would add this, Senator Gagné.
[Translation]
The legal community is monitoring the issue. The witnesses who appeared before me confirmed that, at least for the judiciary. A book has even been published on the question — and I could leave you a copy after the meeting — entitledLe temps d’agir. It may indeed be time to act.
Senator Gagné: Could we conclude that one of the reasons for the lack of action is that people might believe the Constitution would have to be reopened in order to enact these documents in both official languages?
Mr. Power: What the CBA is asking is that the act be reopened, not the Constitution. Otherwise, the answer to your question is a bit more complicated. Amending the act in the way the CBA is proposing would already be a major step, because it would force the federal government not to disregard the issue.
Mr. O’Rourke: That’s a good question, and there’s no right answer to the question why that hasn’t been done, except that there’s no desire to do it; there’s no movement. But you can create that movement. Is there any desire now? We’d like to create some.
Senator Gagné: I’m trying to assess the risk. If there’s no desire, is it because people want to avoid discussing anything that might inflame others over this issue?
Mr. O’Rourke: That’s possible.
Senator Gagné: I’m trying to understand a little more. I thought it was quite a simple matter, but I’m getting the impression it might not be.
Mr. Power: For the CBA, the status of the two official languages is very important, and access to justice in both official languages is also very important. The CBA therefore believes it would be useful to have the Constitution completely translated. That may be a sensitive historical topic, but it merits our attention. On the one hand, I congratulate you for stating it in your second report, which you did on page 38. Bravo!
On the other hand, even though you raised the issue, your report proposes no course of action, even at a personal level. That’s why the CBA is here. It’s offering you a course of action.
The Chair: Before turning the floor over to Senator McIntyre, I have a supplementary question. Some stakeholders who addressed this issue in 2017 said that the 1990 version itself should be updated. Do you think the constitutional drafting committee’s version should be enacted as is in French?
Mr. Power: The CBA has no position on that question. Whether it be retired Supreme Court Justice Pigeon’s 1990 version or a more recent one, there’s no consensus in the legal community as far as I know. The consensus that does exist, and that the CBA is bringing to your attention, is that there’s a need for the Constitution to be translated one way or another, hence the reason for the proposed section.
Mr. O’Rourke: I think it’s fair to say most of the work has been done. Do any updates need to be made? It’s possible. However, most of the work was done by that group.
The Chair: Thank you, gentlemen.
Senator McIntyre: I had the same kind of question as Senator Gagné. I’ll be very brief.
I understand from listening to you and leafing through the CBA’s brief that the obligation provided for under section 55 of the Constitution Act, 1982 should be entrenched in the Official Languages Act. My question is this: Is entrenchment in the act necessary given the obligations under section 55?
Mr. Power: In the CBA’s view, yes, because the issue has disappeared from sight. Translating dusty 19th-century constitutional documents is rarely a priority.
Senator McIntyre: Are we talking here about the official French versions of those constitutional documents.
Mr. Power: There aren’t any, Senator McIntyre.
Senator McIntyre: No, there aren’t.
Mr. Power: It’s not a theoretical question.
Beyond the symbolism, which, of course, is of interest to the CBA, judges, in certain cases, may at times say, “On question X, I’m interpreting only the English.”
If I can speak as an individual, as a lawyer who is a member of the team that represented the Franco-Albertans in the Caron case, I remember that my jaw dropped when my colleagues and I received a letter from Judge Eidsvik, of the Court of Queen’s Bench of Alberta, inviting the parties to submit additional arguments after realizing that the wrong version of the Constitution had been cited. I was much younger at the time and unaware that the Constitution was, at least in part, unilingual.
The issue is important. That’s why the Canadian Bar Association is here.
Senator McIntyre: Summing up, the idea is to comply with the obligations under section 55 of the Constitution Act, 1982 by enacting official French versions of the constitutional documents. Is that correct?
Mr. Power: Yes. Especially since, as Mr. O’Rourke reminded you, a translation already exists. Now someone has to take the initiative of communicating with the provinces and securing their approval.
Senator Gagné: So we have to reopen the Constitution.
Mr. Power: That’s not a subject that’s being addressed.
Senator McIntyre: You think the Official Languages Act should include that obligation.
Mr. Power: The CBA is requesting that the Official Languages Act —
Senator McIntyre: Not only should the Constitution be reopened, but the Official Languages Act should also include the obligation set forth in section 55 of the Constitution Act, 1982.
Mr. Power: At the moment, if the Minister of Justice does nothing, the remedy is ultimately judicial. It’s in everyone’s interest, starting with the CBA, that this matter move forward. The CBA’s proposal is that the Official Languages Act should require that the government take action. Senator Gagné is right: that’s done by amending the Constitution, but there are several formulae, as the senator knows. When Quebec’s denominational school boards were abolished in 1997, that legislation was enacted in Ottawa in English and French. It was done bilingually. Some amendments may be made bilaterally, others based on the 7/50 formula, and still others require unanimous consent, but the CBA is asking that the matter move forward.
Senator McIntyre: The objective is to promote equal access to justice in both official languages. Consequently, my question is this: Are all federal institutions concerned by that objective?
Mr. Power: Senator McIntyre, the lawyers and judges of New Brunswick apply a unilingual English Constitution every day. The same is true in Quebec and elsewhere. This matter doesn’t solely concern the Government of Canada; it also concerns the provinces. You are examining a potential reform of the federal Official Languages Act, and that’s why the CBA is making suggestions at the federal level, but this concerns and affects everyone.
Senator McIntyre: It concerns all institutions. It isn’t a matter of targeting one institution over another.
Mr. Power: No.
Senator McIntyre: Perfect. Thank you.
Senator Smith: You’re answering the questions with tact, and please be assured that’s not a criticism, because I understand that you’re respectful of the history of the act, but, if you had only one suggestion to make, what would it be?
[English]
Mr. Power: Well, I suppose, Senator Smith, there are at least two ways to answer your question. The first is keeping in mind that Mr. O’Rourke and I are here on behalf of the Canadian Bar Association, or at least two sections of it. The answer to that is in the submissions you have. On page 8, you will find a summary of the recommendations. There are six. You want one, but the CBA has six. The fact is, senator, they are still very — how can I put this? — direct. They are very easy to understand. You are obviously better placed than we are to determine the ability with which they would be implemented.
[Translation]
Mr. O’Rourke: I don’t know whether that answers your question, but one measure that we consider important would be to require the Department of Justice to report to Parliament every five years, which would encourage activities in this matter to evolve.
With changes in government, a report every five years could really help.
Senator Moncion: I’d like to go back to your eighth recommendation. I believe you discussed it a little earlier in response to one of Senator Poirier’s questions. As regards the commissioner’s role, when you talk about preparing a more rigorous investigation report so he can act as plaintiff, not merely as a witness, in the context of modernizing the act, you also talked about establishing an administrative tribunal. The commissioner currently plays two roles, one of which, I would say, is clearer than the other. He plays the role of official languages promoter and the role of official ombudsman. He must file an annual report that focuses almost exclusively on complaints. He doesn’t talk about promotion. In those circumstances, after everything I’ve mentioned, how do you see that role and how can it be integrated into the act?
Mr. Power: On the one hand, the Canadian Bar Association’s official position is the one stated near the bottom of page 3 of Ms. Simmons’ letter, in tab C. The CBA isn’t suggesting any specific wording to you on this question; it’s doing so only on section 55, on the bilingual Constitution. I can’t go any further. I can’t say any more, but the obvious conclusion from those three paragraphs is that the Canadian Bar Association is asking that the commissioner’s role as policeman, or at least as litigant, be amplified and that greater importance be attached to that role for reasons of access to justice since the status quo must change.
Senator Moncion: That’s got me thinking. When we met with Commissioner Boileau and Commissioner Fraser, both said they didn’t necessarily want to play that role in relation to the administrative tribunal. I understand the objective, but I also understand their dilemma when they’re already playing an official languages watchdog role in connection with the complaints they receive, and here they’d have to take on an additional watchdog role.
They were in a quandary over their wish to be the authorities who would have to legislate, on the one hand, and impose sanctions on the other. I would have liked to have time to read Ms. Simmons’s letter because we just received it this morning. That’s unfortunate because I would have been better prepared for the meeting. I’m nevertheless going to read the articles. We’re still facing the question of how to combine the roles to make them even more useful.
Mr. Power: On the one hand, Senator Moncion, perhaps we can follow up on your question in writing. That might be a practical way to continue this dialogue and provide you with some food for thought. On the other hand, your work and that of your colleagues require you to consider all kinds of recommendations and experiences, such as those of former Commissioner Fraser, which were communicated to you on September 24, and his doubts about being able to play both roles, those of Mr. Boileau, on June 11, which were similar, and those of Mr. Théberge. I believe he explained his recommendations to the members of the House of Commons this month, in 2018.
One way of reconciling the opinions of people on the ground with the CBA’s recommendation would be to separate the duties. On the one hand, the CBA is requesting that the commissioner do more in the courts, but people who have previously held the position or who occupy similar positions elsewhere in Canada say it’s impossible to be both the top diplomat and head of the army at the same time. How do you reconcile all that? Speaking for myself, I think it’s by separating the duties. There are several implementation models, and the CBA has no specific suggestion to make on the subject, but there’s more than one way to do it and to separate those responsibilities.
Senator Moncion: Thank you.
The Chair: On pages 4 and 5 in your document, where you talk about the implementation of section 55, you discuss the political and legal impasse. On the role of the courts, you say there’s no consensus among the courts on the binding nature of section 55, given the need for political co-operation between the federal government and the provinces in the process of adoption by Parliament and the provincial legislatures.
So pardon my ignorance, but how do you establish this relationship between the federal government and the provinces over an issue such as section 55? What role does the Department of Justice play? How is this legal impasse resolved? Perhaps you’ve already answered the question, but can you expand on it so I can get a clear understanding of the nature of this legal impasse?
Mr. Power: Mr. Chair, it’s true that the words used in paragraph 21, on page 5, are legal jargon. If I may act as an interpreter, that paragraph means that it’s unclear at this point whether a judge may order the Minister of Justice or a given government to take action to implement section 55. That’s the doctrine of justiciability. It’s not clear. People have tried. That’s stated in paragraphs 21 and 22, and, as you can imagine, judges, who are judges from Quebec, have managed to avoid engaging directly on the issue given the political nature of the matter.
Here I have a 300-page book reporting on the question, Mr. Chair, and I will be pleased to lend it to you after the meeting. In it, you’ll find a chapter that I co-wrote with two colleagues, Marc-André Roy and Emmanuel Léonard-Dufour, and that focuses specifically on your question and could help you in your analysis. We are here on behalf of the CBA, which encourages the committee to avoid the judicial path and resolve the political impasse with a section that will ensure the issue is not forgotten and require the Minister of Justice to report every five years.
The Chair: There are still political stakes involved in this issue.
Mr. Power: Of course, Mr. Chair. As my colleague said, perhaps the minister’s first five-year report will state, “I’m still waiting for answers from my colleagues in the provinces,” but at least the matter won’t be forgotten, and that’s the issue; that’s perhaps the modest yet important objective the CBA is suggesting to you.
The Chair: Since you’re speaking on behalf of the CBA and have spoken as an individual, what do you think of the announced regulations under Part IV? What do you think about the content of the proposals relating to Part IV?
Mr. Power: I’m speaking solely for myself, not the CBA, but I believe it’s marvellous, Mr. Chair. It’s progress that’s been a long time in the making, and its effects won’t be felt until 2023. Things move slowly, despite the efforts of many people across Canada, particularly Senator Tardif and Senator Chaput.
However, the government must be congratulated for finally codifying vitality and stating in black and white that the existence of a primary or secondary school represents significant demand; that’s spectacular.
The challenge now is to state it in regulations, which may disappear overnight, and I think the challenge for you is to find a way to have it stated in the act so this element becomes more than just part of a regulation. If I may make an entirely personal remark, but one that relates in a way to the CBA, a census that asks the right questions is now more important because good data are required to determine where the anglophones, francophones and allophones are. The topic of changes to the census questions could not be more important. The questions have become much more important since last week, and this is important information, particularly in determining where judges must be bilingual. You need good data to determine where in the justice system bilingual capacity is required. The census must be amended to include all rights holders, but not just for that.
Senator Gagné: Thank you. I want to follow up on the right to a bilingual Constitution and so on. Pardon my ignorance, but would what I heard you say about consulting the provinces be done under the general formula involving separate procedures for amending the Constitution? No? You aren’t necessarily referring to that?
Mr. Power: That’s not an answer that appears in the CBA’s brief, but it’s law; it’s the amendment formula. I could leave you my copy of a book chapter that explains it all in detail.
The federal government could essentially act alone to francize certain sections. The 7/50 formula would apply for other sections. If we wanted to resolve everything at once, we would need unanimous consent. The common denominator of these three options is that we can move forward immediately, with or without the provinces.
Senator Gagné: I see.
Mr. Power: That’s another reason to take the CBA’s proposal seriously. This idea of requiring that the Minister of Justice not forget the issue could produce better, more tangible results than one might believe, and perhaps more quickly.
Senator McIntyre: I’d briefly like to go back to section 55 of the Constitution Act, 1982. Drawing your attention to recommendations 1 and 2, in paragraph 33, on page 8, unless I’m not understanding something, the CBA isn’t recommending that the Constitution be amended. It’s asking the federal government to meet the obligations provided for under section 55 of the Constitution Act, 1982. In other words, the Official Languages Act should include that obligation. It’s no more than that.
Mr. O’Rourke: No more than that.
Senator McIntyre: Do you agree, Mr. Power?
Mr. Power: You’re playing the trial lawyer, Senator McIntyre, but yes.
Senator McIntyre: That’s what you’re talking about in paragraph 33, points 1 and 2, adding an enforceable section to the Official Languages Act and a section to the Official Languages Act. Is that correct?
Mr. Power: Yes.
Senator McIntyre: I have no problem with those two recommendations. Thank you.
The Chair: With that said, gentlemen, since there are no further questions, thank you very much for your presentations. On behalf of my colleagues, I’ll take this opportunity to congratulate and thank the members of the CBA for all the work that is being done across the country. Your work and your presentation will be very helpful in our thinking, in our discussions and in writing this report.
On that note, we will continue in camera.
(The committee continued in camera.)