Proceedings of the Standing Senate Committee on
Official Languages
Issue 4 - Evidence - Meeting of April 26, 2010
OTTAWA, Monday, April 26, 2010
The Standing Senate Committee on Official Languages met this day at 5:05 p.m. to study the application of the Official Languages Act and the regulations and directives made under it. Topic: study on Part VII and other issues.
Senator Maria Chaput (Chairman) in the chair.
[Translation]
The Chair: Honourable senators, I see a quorum. I therefore call the meeting to order.
I would like to welcome you to the Standing Senate Committee on Official Languages, which is currently studying the application of Part VII of the Official Languages Act within various federal institutions.
We have with us today two representatives from the Fédération des associations de juristes d'expression française de common law: Josée Forest-Niesing, President, and Rénald Rémillard, Director General.
Although the Fédération des associations de juristes d'expression française de common law already appeared before the committee on February 25, 2008, the committee wishes to hear again from these witnesses at this stage of the study in order to see whether progress has been made with regard to the application of Part VII, and hear from the federation on the scope of that part of the Official Languages Act.
The committee thanks you for having accepted its invitation to appear and I would invite you to make your presentation so that senators can then ask you questions.
Josée Forest-Niesing, President, Fédération des associations de juristes d'expression française de common law: Madam Chair, allow me to speak to you briefly about the FAJEF. The FAJEF encompasses seven associations of French- speaking lawyers. Its mandate is to promote and defend the language rights of francophone minorities, especially although not exclusively in the area of administration of justice. Although largely composed of professionals, the FAJEF has a community mandate.
For your information, there are associations of French-speaking lawyers in the four western provinces, Ontario, New Brunswick and Nova Scotia. Together, the seven associations of French-speaking lawyers represent approximately 1,400 legal officers, the number which generally increases on an annual basis. The FAJEF is also a member of the FCFA, the Fédération des communautés francophones et acadienne du Canada.
Our presentation will be on Part VII of the Official Languages Act, and more specifically certain justice measures on official languages that have been taken by the federal government in the past few years.
Allow me to first talk to you about the Official Languages Support Fund. As you no doubt already know, Justice Canada provides financial support under its Official Languages Support Fund.
The FAJEF and its network receive basic funding from that fund, as well as funding for many projects designed to guarantee access to justice in French. In concrete terms, this support fund allows academic and community stakeholders, including the French-speaking lawyers' associations, to develop projects to promote such matters as careers in justice, training in legal French for many workers in the justice sector (including crown attorneys, clerks, defence counsel and bailiffs) and awareness of the judicial language rights of the French-speaking public.
Four years ago, Justice Canada also announced, as a positive measure, that it would be allocating $250,000 a year to official language projects under the child-centered family justice fund. This much appreciated measure has allowed us to direct more of our attention to the issue of family justice in recent years.
We were also able to organize a first pan-Canadian French-language seminar on family justice in Moncton, in 2008. Another such seminar is planned for October 2010 in Ottawa. For the first time, thanks to this funding, there will also be a day of training in family mediation.
Through such projects, some very interesting cooperation has also been created with the Quebec section of the international French-language association of practitioners working with separated families.
There is already a consultation process with Justice Canada for consultations with the CFA — the francophone and Acadian communities. This mechanism, and to a greater extent, the frequent informal communications with Justice Canada have been particularly productive.
For example, it was thanks to those consultations that we were able to point out the importance of placing significant emphasis on French-language training in the field of justice prior to the adoption of the Roadmap for Canada's linguistic duality.
More recently, the Department of Justice also shared with us its policies on public legal education and information, which we are happy to say take into account the importance of the official language communities.
Last, Justice Canada has also been able to help the FAJEF and its network develop ties with other departments, including Citizenship and Immigration Canada, through meetings or joint funding, particularly in the area of crime prevention. In short, we find Justice Canada to be proactive and very open to dialogue on official languages.
While we do not want to conclude on a negative note, we wish to mention two major shortcomings in the field of justice.
First, there is the process for appointing judges to the federal judiciary. We would like to see changes to this process so that it takes better account of judicial linguistic obligations. The bilingual ability of candidates should be assessed, and the number of bilingual judges necessary to ensure equal access to justice in French in Canada should be determined for each of the provinces or regions. At present, that is not being done.
Second, the francophone and Acadian communities have been concerned for many years about the RCMP and its relations with them. At the provincial level, there are currently three issue tables between the francophone communities and the RCMP: in Saskatchewan, Nova Scotia and Manitoba. To our knowledge, these tables are working well. At the national level, however, we have been in discussion for some two years in order to set up a national RCMP- communities table, but we are not making any progress on the issue. We believe that the RCMP, as a national institution, should be much more proactive, particularly at the national level.
Those are our preliminary remarks, and we would now be happy to answer your questions.
The Chair: Thank you.
Senator Champagne: I would like to thank you for appearing before us on this beautiful day. I have two issues I would like to address with you.
First, your federation's mandate is to promote the development of a body of case law favouring the development and vitality of the francophone and Acadian communities, and to inform the members of francophone communities of their language rights and of the importance of access to justice in French. In June 2008, the government announced the creation of the Official Languages Support Fund, which replaced the former Court Challenges Program. In September 2009, the Department of Canadian Heritage and official languages announced that the University of Ottawa had been chosen to manage the new program. The department allotted an annual fund of $1.5 million to decide which cases should be heard. However, the mediation component that is provided as part of the program raised many questions among a number of experts. The Honourable Justice Michel Bastarache, who appeared before our committee, is not really in favour of the mediation component. What do you think of that program? In your view, is that a step in the right direction or are we turning in circles?
Ms. Forest-Niesing: Mediation is certainly taken into account throughout our current judiciary system. Alternative dispute resolution measures are starting to be used in various sectors, particularly in family law and other areas where disputes can be rather heated and quite acrimonious.
Senator Champagne: Very emotional.
Ms. Forest-Niesing: Very emotional, indeed. When emotions come into play, alternative resolution methods become somewhat more complicated. I think that time will tell whether we are taking a step forward. I see this as something positive: we are taking into account the trend toward alternative dispute resolution methods, and, despite the fact that a case might be considered for funding from the support program, and therefore quite far along in the process, and opposing parties quite entrenched in their positions, there is still room for dialogue in order to try to achieve resolution. The fact that mediation is a mandatory part of the procedure cannot be detrimental, in my view.
If I understand correctly — and Mr. Rémillard can correct me if I am wrong — the potential for resolution is assessed quite early in the process and, indeed, if there is really no room to negotiate, then the case is moved forward.
Rénald Rémillard, Director General, Fédération des associations de juristes d'expression française de common law: I believe that mediation is part of the process. Mediation is of benefit when addressing the implementation of an existing right, not its interpretation or scope. For example, if you know the state of a right, then you know its ambit. Some cases that deal with funding issues might involve a gymnasium or shared space, for example, and that is really a question of implementation of a right. Mediation can serve a purpose in such a context. It is up to the courts to define the ambit or scope of a right.
As long as the process takes into account those constraints, those divergent objectives, then mediation serves a purpose, but it is not necessarily appropriate in all cases. One of the elements of the process under the new support program is the determination that parties should not enter into mediation when inappropriate.
We have to wait and see how things will unfold, but that is certainly part of the mediation process concept, and we will see whether the results will be along those lines once the support program is truly established and several cases are moving through the system.
Senator Champagne: Thank you. I would like to address another issue later on, but I will give the floor to the next question and wait until the second round.
The Chair: Supplementary question?
Senator Tardif: I had a supplementary question to that of Senator Champagne with regard to the program's mediation component.
If I understand correctly, the program will examine test cases, which deal with constitutional matters and address the scope of protection of a right. Therefore, cases that arise from the Official Languages Act or its application are not accepted as part of the mediation program.
Then how can we talk about mediation when it does not deal with such test cases? That seems to be contradictory.
Mr. Rémillard: Yes. I know there were cases in the past. When I was the director of the Court Challenges Program, there were cases that focussed more on implementation. I gave the example of a gymnasium or a laboratory — those who know school management rights know that people have a right to those spaces — but sometimes it becomes quite complex to ensure that such a constitutional right is respected. And one of the things that we defined was that such a determination had to be made in light of the specific circumstances of a province or locality.
That is a test case, but with a very limited application, with very limited situations of fact, which comes much closer to the implementation of a right than to its definition and the interpretation of its scope.
In such a context, which accounts for a minority of cases, mediation could serve a purpose. It is not enough to simply determine the scope of a right, but one has to surely ensure its implementation. In many other situations, that is not the case because if the issue is to define the scope of a right, then that is something only courts can do.
Senator Tardif: The new program does not use the same criteria as did the Court Challenges Program. Not all cases are eligible.
Mr. Rémillard: No.
Senator Tardif: Then, if I understood correctly, cases that call for the application of the law are no longer eligible as such?
Mr. Rémillard: The new Official Languages Support Fund has about the same criteria and scope as the former Court Challenges Program. It basically deals with the same constitutional rights.
There is no real difference with the previous program's mandate. The promotion component was enhanced, and there is obviously the whole issue of mediation.
But if we consider the process, there are a lot of details as to how the program will operate. As things stand now, the process was negotiated and developed taking into account a number of concerns — as I have said, things might be different once cases move through the system, and then we will see what the experience yields — but those concerns were taken into account when the program was drawn up.
There were discussions, negotiations and consultations among the communities, and their views were considered when the new Official Languages Support Fund process was established.
Will the program produce the expected results? It is a bit hard to predict at this point in time because we will have to see how the process is applied.
Senator Tardif: All the same, there seems to be a contradiction between the comments of former Justice Bastarache and the program guidelines. It would be interesting to review all the related documents.
The Chair: Senator Tardif, that was a supplementary question. Now, you were on the list to ask your own question.
Senator Tardif: I would like to get some further clarification. In your presentation on the appointment process of judges to the federal judiciary, you indicated that the process should be changed so that it takes better account of judicial linguistic obligations. You also said that that was a problem at the present. Could you give us some more details about that?
Ms. Forest-Niesing: I can start and I am sure that Mr. Rémillard will also have comments.
The fact that the federal judiciary appointment process does not currently include means to assess the linguistic abilities of candidates for positions in the provinces and at the federal level — something we would like to see changed — unfortunately leads to an insufficient number of bilingual judges who are able to hear cases in both languages.
In designated regions where people can ask to have their trials conducted in French, you need to have more than a single judge to hear a case and have the judicial process play out in its entirety, because the procedural rules require that the judge who hears a case cannot also deal with the preliminary investigation.
So you need to have at least two judges. You also need a certain amount of flexibility to take into account absences due to illness or travel requirements in order to cover a greater geographic area. All too often, those who choose to proceed in French anticipate delays and problems. On a number of occasions in my own private practice, I have come in with clients, when everything had been prepared and everyone was ready to begin, addressed the tribunal in French and been told to stop because someone had forgotten our request to have the proceedings conducted in French. As a result, the tribunal was not set up to receive us, and we had to request an adjournment. Therefore, either we agree to come back another day or consent to hold the proceedings in English, which is completely unacceptable.
Senator Tardif: Are you saying that the problem comes from a lack of infrastructure within the provinces in order to accommodate that type of request?
Ms. Forest-Niesing: Yes, there is certainly a problem in terms of the infrastructure, and a possible solution would be to assess candidates' abilities. Another solution could be to designate bilingual positions in the regions where there is a shortage of judges, and decide ahead of time how many would be needed for the system to function adequately and in a satisfactory way.
And I think that the problem can be resolved by designating judicial positions; candidates who are called would already have the necessary linguistic skills.
Senator Tardif: May I ask a supplementary question? We often talk about ``positive measures'' when dealing with Part VII and the changes made therein in recent years in order to foster the adoption of positive measures for the development of francophone and anglophone minority communities.
Do you believe that the appointment of Supreme Court justices who are able to understand both official languages constitutes a ``positive measure''?
Ms. Forest-Niesing: Absolutely, and I would invite Mr. Rémillard to comment.
Mr. Rémillard: The question raises a number of elements, including the right to be heard and understood. Being understood without the help of interpretation has its practical advantages. A number of lawyers will tell you that, following a reading of transcripts, there are often problems and shortcomings with the interpretations. Interpreters do not always seize the nuances, and communicating through them is not ideal. In speaking to a person in an unofficial manner, you do so in that person's own language. And that is not surprising; you want to be understood as clearly as possible without interpretation.
Obviously, there is the whole symbolic aspect. We would expect that the highest judicial institution in Canada be able to hear cases in both official languages.
In addition to the symbolism, there are also some practical considerations.
The right to be heard and understood is accepted at the Federal Court, the Federal Appeals Court and also during criminal trials. That is an important right. Why would that not also be the case at the Supreme Court of Canada?
Senator Fortin-Duplessis: I would like to follow up with Senator Tardif's question, but from a different perspective.
In your view, do the training services offered to lawyers and young judges, in all Canadian provinces, allow them to adequately learn the second language, enough so for them to preside in both French and English?
Mr. Rémillard: I have already asked a chief justice to know whether that was indeed the case. The judge told me that he knew of a few people who, with training, had become fluent enough in the other language to hear cases, but at the cost of much effort.
Learning a second official language is not an easy thing, even for a judge.
There are people who become sufficiently fluent in their second language to hear cases, but they are not the norm.
Senator Fortin-Duplessis: Not everyone is able to.
Mr. Rémillard: Some people have the ability to learn a second language. It is a matter of ability, will and effort. I believe those are the three factors that come into play. It would appear that it is possible. I asked myself the same question.
Senator Fortin-Duplessis: Some will have to work quite hard.
Mr. Forest-Niesing: Of course, you need the will and the ability. But despite those qualities, people should not lose sight of the cultural aspect in learning a second language. Knowledge of a language's culture can certainly influence the understanding and interpretation of testimonies heard in that language. From that perspective, requiring people to learn a second language can pose some risk.
Senator Fortin-Duplessis: Some people believe that the Official Languages Act must be completely rethought, given the situation in western Canada and the struggle against anglicization in Montreal.
In your view, should the Official Languages Commissioner have order-making power? I mentioned that because that is what the Fédération des communautés francophones et acadienne du Canada recommended to us last year. I would like to get your opinion on that.
Mr. Rémillard: We are members of the FCFA. That was indeed one of the recommendations that had been made in one of the reports. As members of the FCFA, we support that recommendation.
Over the years, the FCFA and other Canadian organizations have proposed a number of reforms and changes to the Official Languages Act. We heard the same kind of statements with regard to the regulations and the powers of the Official Languages Commissioner.
I think we have to take a comprehensive approach, because there are a number of factors to consider. Changing a single element will not do, you need a coherent approach with regard to the Official Languages Act. One must always consider the act in its entirety along with its different components.
Your question is quite specific. You must consider all the elements within the Official Languages Act in order to ensure its coherence. That is something that should not be neglected in any change or reform.
Senator Losier-Cool: I would like to talk a bit about the Official Languages Support Fund that you mentioned in your opening remarks.
Could you give me a concrete example of a project that the support fund will help to implement? It might a project to support those who would like to enter on a legal career. Can the support fund be used to train more jurists in both official languages?
Mr. Rémillard: When we speak of careers in the legal field, we are not only talking about careers as lawyers. The term is quite broad. We are also talking about support staff, clerks and interpreters. There is a range of occupations within the judicial system.
Our federation believes that it is important to increase the capacity of the judicial system. In fact, we are promoting legal occupations among three target groups: francophone newcomers, people who have gone through the immersion system as well as those we might call traditional francophones or from more traditional francophone communities. We are looking to increase their exposure to the field. The project was developed particularly in Ontario and has been growing. Moreover, a study is underway regarding the promotion of those occupations among the three target groups. The idea is to try to get young people interested in and excited about those occupations.
That is a way to ensure that our young people will find jobs. The project will also contribute to increasing access to justice in French. Increasing the capacity of the judicial system is a win-win situation for all, both at the provincial and federal levels.
The career promotion initiative is very positive.
Senator Losier-Cool: Would you define the support fund as a ``positive measure''?
Mr. Rémillard: I believe that it contributes to the development, at all levels, of francophone and Acadian communities as well as the visibility of the francophonie.
Senator Losier-Cool: Did you consult with the universities as to whether they could provide more bilingual legal training?
Mr. Rémillard: Universities are always invited. An official meeting that brings together community stakeholders and jurist associations is held once a year. Universities also attend, including the Universities of Ottawa and Moncton as well as anglophone universities, such McGill.
We have discussions with them on issues related to the judicial system. There is no specific forum for bilateral discussions. Such discussions occur when jurist associations are based at or have contacts with those universities, and some jurists are also professors.
Senator Losier-Cool: In today's universities, is it common practice to offer bilingual legal courses or courses for those who want to learn the legal profession in both official languages?
Mr. Rémillard: There are bilingual or French-language law faculties, such as those in Ottawa, Moncton and at McGill; and Weston, for example, had a French legal course. I also know that the University of Manitoba's law faculty has shown an interest in offering courses in French. That is something that was unheard of 5, 10, 15 or 20 years ago.
We now have law professors who studied in immersion programs and who would like to teach courses in French, and law faculties are becoming increasingly interested. I cannot speak for all faculties, but that is an interest that is gaining ground at a number of universities.
Senator Rivard: I would like to come back to the issue of judicial appointments. Your opinion seems to deal with judges appointed at the federal level; in Quebec, that is the Superior Court, and in Ontario, the Ontario Court as well as the Appeals Court. You are suggesting that there be a sufficient number of bilingual judges.
We are fortunate today to have representatives at this table from four provinces: the majority from Quebec, and New Brunswick, Alberta and Manitoba. I believe that accused persons in those four provinces can demand to be heard in French.
Whether in Quebec for someone who wants access to a judge in English, or an accused person in Newfoundland and Labrador who would require the services of a Superior Court judge in French and whose demand could not be met, do you know of any province where it is so difficult to have access to a judge that an accused person cannot be heard in the official language of his or her choice?
Ms. Forest-Niesing: That has always been a serious problem, because there has long been a shortage of judges. Coming up with a solution to that problem is not an easy feat in the current context. Allow me to speak of the situation in Ontario.
Ontario has designated regions pursuant to the French Language Services Act. In those designated regions, it is expected that there be a sufficient number of judges. I can talk to you about my own professional experience. For example, in Sudbury, where I practised for almost 20 years in the private sector, we regularly faced obstacles, despite all the good will of those who participated in furthering the cause: clients, lawyers and all members of the judicial system.
As I said earlier, you need more than a single judge. And you need more than two, three or four judges to ensure that the system is operating effectively. As soon as the slightest problem arises, whether due to travel, leave or illness, that suddenly paralyzes the system because there is only a single judge who is able to hear a case. The problem is ongoing, but we would have solutions to recommend.
Senator Rivard: Regardless of the level, whether at the Ontario Court or the Quebec Superior Court, do you think that simultaneous interpretation is a reasonable option or should there be bilingual judges who can understand and express themselves clearly without that service?
I see you approving. I would now like to talk about the Supreme Court. There are nine judges on the Supreme Court and only one, at present, is a unilingual anglophone. I wonder whether the other eight judges can hear a case and understand everything without the need of the interpretation service, and thus have a sufficient understanding of the language to render a well-informed decision in the case, given all the legal terms? Some lawyers tell me that they sometimes would need a dictionary to properly understand, even in their own mother tongue.
What would you have to say about that?
Ms. Forest-Niesing: When I was the President of the AJEFO, we negotiated a memorandum of understanding with the Ontario Provincial Police in order to ensure French-language service.
I will share with you an example that might make you laugh a bit — it made me laugh — and cry at the same time. A call came in to a provincial police station from a woman who said in French:
Mon mari vient de prendre le bois avec sa carabine. Je suis très inquiète. Pourriez-vous envoyer quelqu'un? (My husband has gone into the woods with his rifle. I am very concerned. Could you send someone?)
That is how she said it. The person responsible for dispatching the police officer reported the incident in English as: ``Armed theft of wood'' — my husband has taken the wood with his rifle.
It gives you a bit of an idea of the direction my answer will take. There is a big difference between understanding French, French-Canadian, French from northern Ontario and French from Manitoba which is different from that in northern Ontario. Each region gives French its own flavour, if you will, and I would say that translation is very often not going to allow for the message to be well understood.
I would go further and say that more often than not, despite extraordinary talent and excellent translation capacity, sometimes one can lose the meaning of an entire sentence, therefore the meaning of the testimony and that can have a result on the litigation.
Senator Rivard: Based on your comment, you are demonstrating practically beyond a reasonable doubt how difficult it will be for us to find nine perfectly bilingual competent justices to sit on the Supreme Court. It is quite a challenge that awaits us.
Ms. Forest-Niesing: Yes, I agree. It is a challenge. But I would not agree with a number of opinions recently expressed in the headlines saying that it is impossible to do. It is not impossible because trials have taken place in French in the western provinces, entirely in French, without the assistance of interpreters.
And if this is possible in the western provinces, when we know how much more of a challenge it is, for Canada and the Supreme Court, this should not be an impediment.
[English]
Senator Seidman: Thank you very much for coming this evening.
In speaking about the shortcomings you see in the process of appointing judges to the federal judiciary, you responded to a question about the need for bilingual judges on the Supreme Court. I believe we touched on that just now as well.
You spoke about the translation services available at the Supreme Court. Are you aware of any complaints from lawyers or justices of the court about the quality of the translation services?
[Translation]
Mr. Rémillard: I can answer. There certainly has been testimony here, perhaps before other committees, where there have been gaps.
What I hear, not necessarily from those who have appeared, but I can tell you that before other courts, at the Court of Queen's Bench or elsewhere, almost all lawyers, when they refer to interpretation, would tell you that they would prefer not to use it because there is always something lost in translation. There are nuances, it is less flowing, less comfortable, there is this feeling of discomfort.
I think Ms. Forest-Niesing also mentioned that in some cases, one would like to bring nuances to what is heard, as to the accuracy of what we are doing, saying or representing.
There is always going to be some loss in interpretation, even if it is the best possible interpretation. But there are nuances. Each language has its own genius, its own expressions. When you take a concept in one language and try to transpose it into another, there are subtler points that will be lost, that is inevitable.
Ms. Forest-Niesing: I would add one final detail. If we had bilingual justices on the Supreme Court, it would obviate the need for translation. In the current context where translation is essential, I am not convinced it is the best use of resources.
[English]
Senator Seidman: I understand what you are saying, and I do not want to negate it in any way. However, my question really is very specific, and that is: Have you heard of any complaints about the translation services from a justice of the court or a lawyer who would be depending on those translation services?
[Translation]
Mr. Rémillard: Aside from the complaint we heard from Mr. Michel Doucette when he appeared before us, I have never heard that said by anyone else. But we have to realize that when it comes to our numbers here in the federation, there are indeed some lawyers who will be appearing before the Supreme Court of Canada, but not the vast majority.
Ms. Forest-Niesing: I for my part am not aware of any complaint as to the quality of translation at the Supreme Court.
Senator De Bané: Concerning the Official Languages Support Program announced by the government two years ago, former Justice Bastarache of the Supreme Court said that he did not see how the program could be useful if its purpose was to use mediation to interpret a law or test its constitutional validity, and that the focus should instead be on the implementation of the law.
He stated that he saw a fundamental contradiction in the new program. He added:
How can you negotiate the scope or the existence of a right and the constitutionality of a law? That to me seems to be an impossible task.
Mediation can be offered when legislation is implemented or applied. If there is no discussion about the implementation of the law and no agreement as to how it should be applied, why are mediation and discussion imposed? What will there be to discuss? What do you think of this analysis of the former Supreme Court justice?
Ms. Forest-Niesing: It is clear that for cases that involve only the analysis of the implementation, mediation could work to an extent. However, as concerns cases where there is a fundamental disagreement on the interpretation of the act itself or the constitutionality, I agree that mediation could not always be used, that it would not necessarily be the best way of achieving satisfactory results.
For such cases, I realize that the support program, despite its obligation to use mediation first, does not mean that we must remain seated at the negotiating table if there is a dispute that is impossible to settle. And after having done an overview and an initial analysis, we would quickly go on to the next step.
Senator De Bané: As a member of the Fédération des associations de juristes d'expression française de common law, do you have an opinion on the missing elements of Part VII that prevent it from being fully effective? Have you studied that?
Ms. Forest-Niesing: We have not announced a position on that, but I would have no hesitation telling you that the consultation process is vital to success and for implementation.
Senator De Bané: So the consultation process you currently have with Canadian Heritage and Justice Canada is not satisfactory?
Ms. Forest-Niesing: That is not at all what I said. We have an excellent consultation mechanism with Justice Canada. Other consultations would certainly be useful should we undertake other measures. It is better to ask the question and carry out consultations before taking action to ensure that language rights are complied with, and to become familiar with the issue in advance.
Senator De Bané: Excellent. Mr. Rémillard, would you like to add to what the president has said?
Mr. Rémillard: Yes. There are two roles the federation can play. In a sense, we are responsible for the justice sector. Providing a legal opinion on Part VII is not part of our mandate. Our principal mandate is to take the lead on the justice file, and we work in close collaboration with the FCFA, because, of course, we have a certain expertise.
So it is not really the mandate of the Fédération des associations de juristes; our mandate is the justice sector. We work a great deal with Justice Canada, I would say, rather like one works on immigration or health. Our relationship with Justice Canada is very good.
Annual consultations are organized on an official basis, but I would say that that is only one part of the relationship. I would say that our contacts are much more regular and informal. We have ongoing dialogue. It is not just one meeting per year and that is it. I think that we are very lucky. They also help us gain access to other departments and institutions. We benefit from a great deal of openness on their part. We spoke about immigration earlier. There are also careers in the justice field in the entire area of new arrivals. We are currently working on a project, which is being co-funded by Justice Canada and Citizenship and Immigration Canada, on promoting these careers and focusing on new arrivals. This is an example of a very interesting initiative where Justice Canada is acting as a facilitator and helping us open doors.
Senator De Bané: I am very happy to hear these extremely positive comments. What else can we improve? Are there things that could be done better in future? Have you brought certain situations to the attention of the Commissioner of Official Languages? Are there other departments, contrary to Justice Canada, where things are not going as well?
The committee is seeking to determine how Part VII could be even more effective. Should certain departments model themselves on Justice Canada and improve their collaboration? This is really the rationale behind our committee, that is, to ensure that there is substantive equality for francophones and anglophones in this country who live in minority communities.
Now is the time to tell us what you talk about when you are among yourselves, for example things that need to be done. Now is the time to speak out in front of all my colleagues so that we can reflect on all of this.
Mr. Rémillard: I believe we already brought up the problems with the RCMP. At the provincial level, round tables have been set up over the past few years, in Manitoba and then in Saskatchewan and Nova Scotia. At the national level, it seems to be much more difficult to make progress with the RCMP. Some attempts have been made, but have mostly come to nothing. It does not look very promising. I do not know whether we will achieve results. This dissatisfaction has been expressed to us by the communities.
Senator De Bané: I can assure you that the RCMP Commissioner, Mr. William Elliot, is very aware of these issues. Which concrete measures would you like to see him look at? I am sure that he will do so with a great deal of openness and transparency. You can be sure of that. Mr. Elliot is very sensitive to this. He speaks French. I know him personally and I can tell you that he will certainly be very open. So tell us what you are lacking and I am sure that you will find that he is a good listener.
Ms. Forest-Niesing: I am very pleased with what you are telling us. I would say that a good starting point would be the creation of a round table at the national level between the RCMP and the francophone and Acadian communities. This round table could then, more specifically, identify shortcomings and try to find appropriate solutions.
Senator De Bané: I will bring your testimony to his attention. As you know, he is himself a legal expert, a lawyer. I am sure that he will study this with a great deal of attention.
Senator Losier-Cool: A supplementary question: aside from the RCMP, have you identified legal areas or professions — whether clerks or bailiffs — where language problems are more widespread? Are there certain professions in the area of justice where these problems are more frequent?
Mr. Rémillard: Yes. Besides, a study seems to show that this problem occurs more frequently with support staff, and with the administrative apparatus of the judiciary branch: probation officers, clerks, especially in the Canadian west where it is perhaps even more serious, and also in certain cases, in other provinces. There seems to be a definite trend in this sense.
With regard to the bilingualism of lawyers, there is some relevance regarding the Supreme Court of Canada. We are going through vast demographic changes and we are constantly evolving. This is becoming more and more evident. Let me give you the example of Manitoba where four or five professors in the faculty of law of the University of Manitoba are bilingual. Increasingly, the number of bilingual members — especially in Ontario and in the west — is growing, thanks to, among other things, the immersion system. A good number of our chairs of associations of lawyers are products of the immersion courses. We can say that this applies to the system as a whole. Let us note that things have nonetheless evolved over the years. The results of immersion take some time to show up, but they are increasingly visible in our justice system as a whole. With regard to support staff, there seem to be more problems to solve and we should focus more on this sector.
Senator Losier-Cool: Next September, we will visit Quebec anglophones about the issue of the Official Languages Act. Is there an association in Quebec that is comparable to yours and that we could meet? I understand that you are an organization of the FCFA. Is there an English network in Quebec?
Mr. Rémillard: There is no equivalent. There is no association of francophone lawyers in Quebec. There are a few associations, but it is not the same group and not the same environment. Regarding the entire issue of justice, in general, when we meet with our colleagues in Quebec, we are told that we are structured in a very different way. We do not operate in the same manner. In Quebec, there is no equivalent to the lawyers' associations in other provinces.
Senator Losier-Cool: Thank you.
The Chair: Thank you. Before continuing with the second round of questions, I would like to go a bit further in defining the concept of ``positive measures'' with both of you. I understand that you are not responsible for defining for other departments what a concept or a positive measure is, but I am sure that you have discussed this matter at some point in time. As the committee studies Part VII, it is realizing more and more that the different departments have the political will to implement ``positive measures'', but their fundamental question is: What does this mean and how can we go about getting it done?
Let me ask you, unofficially, how you would define ``positive measures''?
Ms. Forest-Niesing: The first thing that comes to mind when one hears the term ``positive measures'', is that it must be something beneficial, that it must have some positive fallout for the francophone communities. The term ``measure'' implies that we must act, that we must be proactive and innovative.
Besides, as you know very well, no one has agreed on the definition, according to the testimony that you have heard and given the fact that the courts have never had to make a finding about this issue. As I said, a measure must be something innovative, proactive and beneficial.
The Chair: Your answer is very good, Ms. Forest-Niesing.
Mr. Rémillard, have you anything to add?
Mr. Rémillard: The definition of a positive measure is somewhat like Jello, it is difficult to grasp. We know what it is, but it is difficult to grasp. We know that positive measures exist almost intuitively.
For example, consultations were held with Justice Canada and other departments on the issue of crime prevention. We must note that this initiative came from the department. They really called together representatives from different departments to discuss the issue of crime prevention.
The Minister of Public Safety was invited as was the RCMP and last October an entire day was spent discussing the issue of crime prevention. Honestly, this is something fairly new in our communities. Crime prevention may not be on our radar screen because we have historically focused on other sectors.
When I came out of this meeting, I could see the potential of the idea of crime prevention, especially in light of the vast demographic changes that are expected in the future and that have already begun in some communities. We must take up new positions and a new way of thinking.
In this case, the Department of Justice really took the initiative when it consulted community stakeholders and various departments. I believe that this led us to begin to change our way of thinking. In itself, I think that this is a positive measure.
To my knowledge, a few projects arose from this initiative, which will help us to make some progress with this file over the coming years. This is an example and it might be easier to give more concrete examples than to come up with definitions that are sometimes very difficult to give.
Senator De Bané: A supplementary question. To what extent does the expression ``positive measure'' refer to what I would call the real dimension of things?
Of course we have a formal aspect whereby everyone is free to speak about any subject. These are formal rights. And through positive measures, we can refer to the real side of things. Everyone has freedom of speech, but between formal freedom, formal rights and real rights, I think that the term ``positive measure'' introduces a dimension of living reality that goes beyond mere formal rights.
What can be done to make these rights a living reality in a given environment? This has to do with the reality of things rather than with their formal aspects. What Carl Marx contributed long after the French Revolution was very beautiful: freedom, equality, brotherhood. But these things are all merely formal rights. What about the real side of things? How can this formal right translate into a living reality? This would be more or less my train of thought.
Ms. Forest-Niesing: Earlier, I said that this was done through consultation. A ``positive measure'' does not necessarily have to involve moving mountains. It includes everything that aims at raising awareness on the one hand, and on receiving information that can really help you take the pulse of the situation and become familiar with the realities at the grassroots of the community. I think that this is a consultation, a real dialogue, it is an exchange regarding our needs that can eventually raise awareness.
We hear about career projects in the justice sector, but each time a consultation is held about this subject, the awareness of a part of the community is raised. And if we only raise the awareness of two or three communities that were previously unaware of their language rights, we have made some headway. I would say that in this case this is a ``positive measure''.
Senator De Bané: Thank you very much.
Senator Champagne: Ms. Forest-Niesing, in your paragraph on the process for the appointment of judges to the federal judiciary, you have opened a Pandora's Box. As you know we are currently studying a bill which would require that judges appointed to the Supreme Court be bilingual to such an extent that they do not need interpretation services.
That said, you told us that as a lawyer you sometimes had some difficulty finding one bilingual judge. You are asking that the required number of bilingual judges be established for each province and each region.
When you were asked whether it would be impossible to find bilingual judges, you said ``No, but it will not necessarily be easy.'' When I look at this bill, I always want to add an amendment. I get the feeling that we are starting by building the roof rather than the foundation.
I think that it is at the lower court level like the appeal courts that we must require and encourage bilingualism. People will become judges and it will not even be a problem any more to require that our Supreme Court justices be bilingual. I am thinking that perhaps this is what we need to do with this bill. That is how I see things.
As a francophone, of course I am not opposed to the appointment of bilingual judges to the Supreme Court, but I have the impression that we are not doing things in the right order. We are putting the cart before the horse. Let's start with our lower court judges, require bilingualism from them and when they reach the judiciary, it will be absolutely commonplace.
In my opinion, this bill is way ahead of its time. It should be amended and applied to lower courts. Do you think what I have to suggest is an intelligent solution?
Ms. Forest-Niesing: Your reasoning is quite intelligent, certainly. In an ideal world, everything would be done at once. I absolutely agree on the fact that we must address the problem of the shortage of judges at all levels within the federal appointment process. It is clear and it is a problem that will not vanish and may contribute to the process you set out.
That said, my concern is that in a country where there is an Official Languages Act, if the highest court in the land is unable to hear a case in one official language or the other without the help of interpretation, aside from all the other problems we have discussed, the issue of having a good understanding of the language, understanding the culture around that language, the issues of meaning and mistranslation, what kind of example are we setting? If I look into the future, assuming this bill is passed and it becomes a requirement, any young jurist aspiring to the highest court in the land will know that it is wise to learn both official languages in order to be considered a candidate.
There is also the fact that when it comes to the francophone population, the definition of a francophone is changing and evolving. There is a broader francophonie, it includes more than the traditional francophones that we know, we now have French-speaking immigrants, people born in exogamous families and immersion graduates.
Currently, people who want to be considered for positions within federal institutions, for the most part, learn French to improve their chances of being selected, knowing that it is an asset which will certainly be beneficial to them.
Senator Champagne: And you have no concerns about the fact that eventually linguistic competence will trump legal competence?
Ms. Forest-Niesing: It is an argument raised by a number of people who oppose this bill and something which I have a great deal of difficulty with. First of all as I stated, when we select candidates to fill positions on the Supreme Court bench, we are choosing among a list of highly qualified individuals.
Senator Champagne: We have had the good fortune, in the case of Justice Antonio Lamer, of having someone for whom bilingualism was a matter of course. I knew him when he was studying law at the University of Montreal and because his mother was an anglophone and his father francophone, bilingualism came naturally to him. But there are not that many Antonio Lamers out there. And even he is no longer there, unfortunately.
As you see, I have not yet made up my mind as to what I will do when the time comes to vote on this bill. But I believe you've given me a wonderful way out by saying that we will start at the lower levels and then, when judges make their way to higher courts, we will have judges who are officially bilingual at the Supreme Court. Thank you.
The Chair: Did you have something to add, Mr. Rémillard?
Mr. Rémillard: Yes. In western Canada, the argument we often hear is that there are no francophone judges. Over the last two years there have been appeal courts that have heard cases in French without the assistance of interpretation, in Manitoba, Alberta, the Northwest Territories and the Yukon. So, the capacity exists. It is far more advanced than one would tend to believe. This was at the appeal court level, people's cases were heard in French, without the assistance of interpretation, in the most anglophone region of the country.
It is difficult then to say ``It is possible to have one's case heard in French without the assistance of interpretation in Alberta, Manitoba, the Northwest Territories, the Yukon, but not at the Supreme Court of Canada''. There seems to be a contradiction there. The capacity exists, I think it is a matter of choice. At the end of the day, do we have the right to be heard and understood without the assistance of interpretation before the Supreme Court of Canada?
Senator Champagne: Only lawyers appear. It is not as though the average person appears before the Supreme Court of Canada to tell his or her story. These people are lawyers. The justices have the documents, they have read about the trials which led to the case being heard before the Supreme Court, so they are very well aware of what the case is about, and whether one language or the other is used, in the majority of cases, it would not bother them that much. It would not unduly affect the outcome of the trial. But we are dreaming in technicolour and saying that it would be fantastic for all of our justices to be bilingual.
Senator Tardif: I had a supplementary question to ask before I asked my own question. Is it not currently the case, under the Criminal Code, that people have the right to be heard and understood in the official language of their choice?
Mr. Rémillard: Yes.
Senator Tardif: So this capacity already exists from the start. In Alberta, if people want to go before a criminal court, they have the right to be heard and understood in French. And that is currently happening today. So, basically it exists. Have I understood correctly?
Mr. Rémillard: Yes, under the Criminal Code, this right exists.
Senator Champagne: But the Criminal Code is not the Supreme Court.
Senator Tardif: No, but lawyers plead in that language and could eventually move up depending on the circumstances, go right up to an appeals court or even the Supreme Court.
Here is the question I wanted to come back to: you have indicated that Justice Canada has undertaken consultations with your association and that they are very productive. To come back to the issue of definition, has the Department of Justice given you any criteria as to what you should do when you implement ``positive measures'' or action parameters for ``positive measures''? Have you received this information from the Department of Justice?
Mr. Rémillard: No, not as such. This is a relationship that has been established, that has been created. In other words, it is not necessarily a legal debate, it has become a much more pragmatic debate. We are really focused on pragmatism. We work together. We have built a relationship where we express our needs and there is a ongoing relationship with the department to be able to tell them how we can work together. It is a very pragmatic approach. It is somewhat ironic, because people would think that we would have very legalistic debates, given that we are, after all, lawyers. But we have adopted a very concrete approach and it is by working together that we were able to implement this kind of relationship.
Senator De Bané: I have a comment to make. It came to me as I listened to our colleague, Senator Champagne. When the nine justices of the Supreme Court withdraw to deliberate around the conference room table, I do not think they have an interpreter present with them. And I understand the comment of the honourable senator when she said that when the judges are amongst themselves and there is no interpreter present, if they want to speak in their own language all the others must be comfortable with both official languages, as stipulated by the supreme law of our country, the Constitution.
The Chair: I would like to thank you, on behalf of all members of the committee, for your testimony. You have answered our questions very intelligently and very humanely. Thank you very much, and perhaps we will see you here again.
Honourable senators, this meeting is adjourned.
(The committee adjourned.)