Mr. John Major (C.C., Q.C, Puisne Judge of the Supreme Court of Canada, Retired, As an Individual):
My presentation won't be too profound, as I was only invited to this unexpected party, as it were, last Friday. However, I understand the nature of this amendment to the Supreme Court Act requiring that any new nominee understand French and English without the help of an interpreter.
I would begin by saying there is no question of the right of the litigant to have his case heard in his language of choice in Canadian courts. Certainly, in the section 96 courts, that is his right.
The basic concept here has to be properly decided, and the judge has to have a complete understanding of the case. The ideal, of course, would be to have a judge who was perfectly bilingual. But there are very few of those in the country. Of recent memory was the late Chief Justice Lamer, who was fluent both in the spoken and written language.
It is vital that the case is properly understood, and the system must be fair to all parties. But I am absolutely adamant in my view that the test for the appointment of a judge should be competency. That has to be the priority, and anything else that comes with it is a bonus. It would be a mistake to substitute anything in place of competency. Particularly in the Supreme Court, cases have to be as near correct as humanly possible, because they have a national impact on the whole of the country.
Any inadequacies in the language of an appointee are presently handled by way of translation. I was unilingual for all intents and purposes, and I was on the court for 14 years and made use of the translation, which I found to be very good. There was no case from Quebec or elsewhere argued in French in which I did not feel I had a complete grasp of the facts and the positions of the parties.
It's interesting that the United Nations operates the same way, except that they have multi-translations because of the nature of the establishment.
I guess I'm going to sound like a broken record on the subject, but competency is the cloud that sits over top of this.
Sometimes the matter comes up in a different way. As you know, in Canada we have geographic requirements for six of the judges on the Supreme Court; that is, they have to come from different areas of the country. Quebec has constitutional right to three judges. I've heard the question raised—in fact, in Rothstein's appearance—how do the common law judges feel about deciding civil law cases? The answer is that they feel very comfortable, just as the three civil law judges from Quebec feel quite comfortable in deciding common law cases from the nine other provinces. So I don't think the question of understanding a case by virtue of translation is a serious problem.
I think it would be a serious problem for the country as a whole if anything less than competency were the first requirement for appointment to that court. Over the years, there have been no complaints from litigants—at least, not any made to the court during my tenure there. The Canadian Bar Association has not raised this as an issue.
I suppose by way of concluding remarks I would ask, does anyone suffer by this proposed amendment? I would say the litigants suffer if the test of the judge is less than that of competency.
Thank you, Mr. Chairman. Those are the few remarks I have.
Mr. Jean-Claude D'Amours:
So it is the final court. I asked the question but I expected the answer. As you know, in the lower courts there are bilingual judges. The fact that they are bilingual means that francophones can automatically exercise their rights in their own language. It also means that anglophones can exercise their rights in their language. It means that when there is a need to speak, one can do it in one's language. The judge who is sitting will be able to understand the importance of the arguments and ensure their rights are respected. I'm talking about the lower courts.
Given that you stated earlier that the Supreme Court is the final court Canadian citizens can turn to to exercise their rights, it is fortunate that being before the Supreme Court does not involve life or death issues. However, one can't go any further than that.
Do you feel that people should feel comfortable and certain that they are at no risk, with respect to the Supreme Court's final rulings, because of their language?
In the lower courts, these individuals are guaranteed that they can speak in their own language and that the person before them will be able to speak to them in their own language and understand their language. One can go no further, I'll repeat this, one can turn to no other court, one has no other recourse, it's the end. Earlier, you couldn't hear the interpretation. Therefore you were not able to understand me, and I respect that, but imagine the situation where the interpretation was even further from what I am saying right now. If people cannot be well understood because of the interpretation, do you think that the citizens or the lawyers representing them will be able to present their arguments and fully exercise the rights of their clients?
Mr. Réal Ménard:
As I was saying, sir, I'm disappointed in your opinion and I hope that it is not shared by most legal experts. I refuse to accept that there's no connection between competency and knowledge, on the one hand, and bilingualism, on the other. Mr. Godin pointed out in his testimony that the requirement to be bilingual applied to courts within federal jurisdiction. Therefore if this requirement applies to judges in federal courts that are lower than the Supreme Court, I would think that as parliamentarians we are justified in thinking that it should also apply to Supreme Court judges.
I do not know why you haven't learned French and I don't judge that, but as parliamentarians, it is our duty to say that if Mr. Godin's bill is passed, then all those in the legal profession in Canada who want to be accepted on the bench and be given higher levels of responsibility, in the Supreme Court, for example, will have to learn French, whether they come from Alberta, Prince Edward Island, Saskatchewan or elsewhere. If, in your case, that requirement had existed, then maybe you would have made the effort to learn French.
I think that Mr. Godin's bill sends a very clear message to the next generation of people of the legal profession. I do not question at all your legal knowledge and I do not doubt that you have served the Supreme Court well, but if that message had been clearer when you were studying law, then perhaps you would have made the effort to learn French.
I would like to hear your opinion on that.
Mr. John Major:
You've asked me about 15 questions, but let me try to answer some of them.
First, this amendment would not have the support of the majority of lawyers in Canada. I doubt it would have the support of the majority of lawyers in Quebec. That's point number one.
Point number two is that in my own case I did not aspire to be a judge; I was invited to be a judge when I was in my late fifties. So your premise that you start off wanting to be a judge and as a result you'll learn French is not practical, because I don't believe most lawyers start out wanting to be a judge. You can't be a judge by choice; you have to be selected. You can't write an exam and be a judge.
In the lower courts, as you mentioned, they are entitled to have their cases heard in the language of their choice, and in virtually all those courts.... In Alberta, for instance, you have 90 judges, and of the 90 judges there are some who are bilingual and can hear the case in French. So at the lower courts it's not a problem. There are enough bilingual judges in both languages. I'm sure the same is true in Quebec. You can have your case heard in English. A Supreme Court decision says you can do that in French or English. But we come back to this question: if you have the most competent judge possible available but he needs to use translation, are you prepared to say to the people of Canada, we're not going to give you the best judge; we're going to give you the best judge who can understand your language without translation?
Mr. Joe Comartin (Windsor—Tecumseh, NDP):
Thank you, Mr. Chair. Thank you, Justice Major, for being here.
I don't want this to seem offensive, but I've sat--
Mr. John Major: I don't think you have to worry about offending me.
Mr. Joe Comartin: Okay. Thank you. That's actually what I'm getting at.
I've sat through the last four appointments to the Supreme Court. They all employed different methodologies, but I certainly got a real sense of not only the ultimate candidates but of all the candidates who were eligible. Because that's all confidential, I cannot go into any more detail than that, but I can say to you, Justice Major, that in all those cases they were in fact solid candidates who were fluently bilingual. I will add that if they were coming from the appeal level, they had conducted trials and hearings, as they would have to do at the Supreme Court level.
I think what I'm doing at this point is challenging your assertion that those candidates do not exist. This is the final point I'll make: they not only exist now, they are in fact growing in number. As the years go by, more and more competent lawyers and judges will be candidates for the Supreme Court.
Mr. Marc Lemay (Abitibi—Témiscamingue, BQ):
Good afternoon, Your Honour.
Let me to share my personal experience. I went to the Supreme Court of Canada. I was not presenting arguments but I was accompanying a colleague who was presenting arguments under the Young Offenders Act.
I am certain that what you answered earlier to Mr. Storseth's first question was perfectly valid but I simply want you to know how a lawyer feels when they go to the Supreme Court of Canada. It's not every day that one goes to the Supreme Court of Canada and when you do go, it's because you are pleading a very important case.
For my point of view, it's not only being heard that is important, it is being understood. From that perspective, I have some difficulty with respect to judges who cannot follow what is being said in French, for example. It could be during exchanges with Justice Lamer or any other attending judge. You know how these things work because you have considerable experience, which I don't deny. It's about what is important for us.
The reality is often different. Our clients wonder why the judge does not understand what is being said, why they need interpretation, when we've always presented our arguments in courts where it was possible to present them before perfectly bilingual judges.
You understand that it is important for many groups to have the feeling that they're being heard and understood. Being heard is different from being understood. The distinction is important to us. Judges on the Supreme Court of Canada, the highest court, must be able to understand us in the French language, the language we express ourselves in, whether the case is being heard at the first, second or highest level.
Mr. Rob Moore (Fundy Royal, CPC):
Thank you, Chair.
Thank you, Justice Major, for your appearance here today. We do appreciate your appearing here as a witness.
A couple of the points you did make really stood out to me. First, there is no question of the right of a litigant to be heard in their own official language. Also, you made the point about the translation obviously being probably very good at the Supreme Court of Canada. On the point about competency being the overriding goal, as a government, when we make our selections for the Supreme Court, I happen to agree with you that competency must be the overriding goal.
A point was made that at some point in a person's life they would decide that when they grew up they would want to be a Supreme Court of Canada judge, and then they would begin taking lessons in order to make themselves bilingual no matter where they were from in the country. I don't see that as realistic in any way. I don't think that's how most people's lives or careers unfold.
I wonder if you could comment on that. I know there is no typical path to the court, but maybe you could comment on why that would be an unrealistic premise.
Mr. Graham Fraser (Commissioner, Office of the Commissioner of Official Languages):
Thank you very much, Mr. Chairman.
Mr. Chairman, honourable members, I would first like to thank you for giving me the opportunity to speak to you about my position on Bill C-232, which amends a section of the Supreme Court Act on the bilingualism of judges.
Over the past 40 years since the royal assent of the Official Languages Act, language rights have developed and advanced in Canada through lengthy discussions led by three key stakeholders. Initiated by the Parliament of Canada when the Royal Commission on Bilingualism and Biculturalism was formed, this discussion also mobilized the Canadian public and the courts, especially the Supreme Court.
The dialogue surrounding the application of the Official Languages Act and the Canadian Charter of Rights and Freedoms has led to new case law, building on the relationship between Canada's English-speaking and French-speaking peoples. It is a relationship that has defined our past, that informs our present and that will continue to shape our future.
One of the most eloquent statements on the importance of language as part of personal and collective identity comes from a Supreme Court decision in the Ford case in 1988, and I quote:
||Language is not merely a means of interpersonal communication and influence. It is not merely a carrier of content, whether latent or manifest. Language itself is content, a reference for loyalties and animosities, an indicator of social statuses and personal relationships, a marker of situations and topics as well as of the societal goals and the large-scale value-laden arenas of interaction that typify every speech community.
This view that the Supreme Court expressed so eloquently has influenced my position on the debate that brings us here today.
The bijural nature of Canada's legal system is another factor that has influenced me. Canada has not one legal system but two. We're one of a small group of countries to enjoy the richness of both common law, which originated in Great Britain, and the civil code, which flowed from Roman law to the Napoleonic code, to New France, Lower Canada, and then Quebec. This is a huge asset for our legal tradition and for many of our lawyers who function within both legal traditions, which together cover most of the world.
As the American legal scholar John Henry Merryman wrote: “It is difficult to overstate the influence of the civil law tradition on the law of specific nations, the law of international organizations, and international law.”
This does not mean that all Supreme Court judges should be educated in both common law and the civil code, but they should be able to hear arguments from counsel who've been trained in either tradition, in English or in French, without requiring interpretation. As you know, Canadian laws are not translated; they are written in both English and French. The judges in the highest court of the land should therefore be able to understand nuances found within them when there is a difference between the two versions.
If Parliament were to pass this bill, it would send a powerful message to Canada's law schools that mastering both official languages is a pre-requisite for full mastery of the law, and for qualification for the most important and prestigious positions in the Canadian judiciary.
The nature of Canadian linguistic duality means that Canadians have a right to be served by the state in the language of their choice; it is, in effect, a right to be unilingual. The state is officially bilingual so that the citizen does not have to be. And citizens can live full and prosperous lives in Canada speaking only one official language, with no need to learn the other. This puts the burden of bilingualism on the state, and more particularly, on those who play national leadership roles.
Parliament has recognized the need for every federal court to be able to conduct proceedings in either English or in French. Paradoxically, there's only one exception: the Supreme Court. In my view this has perpetuated an unfortunate separation.
Over 30 years ago, the late Jules Deschênes, the Chief Justice of the Superior Court of Quebec, gave a speech in Toronto in which he warned of what he called legal separatism. I quote:
||“Quebec has shown the willingness and the ability to contribute to the building of [...] a national scheme of federal law, but the legal community of the rest of Canada has, by and large, closed itself off and away by simply ignoring the Quebec contribution,” he said. “There now exists an actual separation in legal Canada, but it has been worked upon Quebec from without, not by Quebec from within.”
He noted that the academic legal work that had been done in Quebec had gone unnoticed in the rest of Canada in the fields of commercial law, criminal law, and administrative law, and he went on to compare the absence of citation of Quebec decisions.
One of the more impressive things about the Supreme Court has been how much more bilingual it became over the three decades since Deschênes spoke, but it only takes one unilingual judge to require that all discussions occur in one language only.
The debates surrounding the appointment of bilingual judges is nothing new. Like my predecessors, I have already expressed my view on the matter at various forums. In May 2008, I appeared before the House of Commons Standing Committee on Official Languages and shared my view on the appointment process for the next Supreme Court of Canada judge. At that time, I pointed out that knowledge of both official languages should be among the desired qualifications for judges of the highest court of the land. In my opinion, such a standard would show all Canadians that the Government of Canada is committed to linguistic duality, in a way that is both symbolic and practical.
One year later, I still hold this belief. In fact, it seems essential to me that an institution as important as the Supreme Court of Canada not only be composed of judges with exceptional legal skills, but also reflect our values and our Canadian identity as a bijural and bilingual country.
We all know that the Supreme Court Act stipulates that there must be regional representation in the court. This important principle is strongly supported by both the public and parliamentarians. However, I find it strange that this principle is used as an argument against recognizing bilingualism as an essential qualification. I also find it hard to accept the argument that requiring Supreme Court judges to be bilingual would compromise the rights of a unilingual individual who might want to access a seat in Canada's higher court.
On the one hand, knowledge of a language is a qualification that can be acquired. On the other hand, bilingualism is already a requirement for judges of other courts in the country and for some 72,000 positions in the federal administration, so that Canadians can receive adequate service. I don't think that the bar should be set lower for Supreme Court judges.
In order to respect all Canadians, it's important to ensure that they are all served by judges of the highest distinction and greatest ability, who can hear and understand a case in either official language. Given the complexity and the extreme importance of the cases heard by this court, judges should be able to hear arguments presented to them without using an interpreter to understand nuanced and complex legal arguments.
I recognize the importance of selecting candidates for the judiciary based on each candidate's professional skills and merit. Where the judicial appointment process is concerned, bilingualism is an important criterion and should be a primary factor of candidates' merit and legal excellence.
The amendment proposed in Bill C-232 is for bilingualism to be a prerequisite for appointment. I strongly support this amendment.
Thank you very much.
Now I would like to answer your questions.
Hon. Dominic LeBlanc (Beauséjour, Lib.):
Thank you, Mr. Chair.
Thank you, Mr. Fraser, for your comments. I fully share your opinions. In fact, I had not noticed the contradiction you so clearly highlighted, i.e., that candidates must be bilingual to obtain some positions in the public service or to become a general in the army, but that those who sit on the Supreme Court do not have to meet the same requirement. Having highlighted that in such a simple and eloquent manner is very useful.
Some people will say that competency in the law, legal scholarship, and understanding of the role of the judiciary--all of the traditional factors one associates with judicial competence--should be the sole factors in determining a Supreme Court appointment. To introduce a linguistic competence or bilingualism requirement would lower the bar and give less-qualified individuals a chance to be appointed, whereas an allegedly more qualified or competent person who just doesn't have this bilingualism requirement would be blocked.
What is your answer to that? That's the knee-jerk reaction if we're appointing a judge. The judge from Atlantic Canada who replaced Mr. Justice Bastarache, Justice Cromwell, is a perfect example of a bilingual, highly qualified, competent jurist from Nova Scotia.
What do you say to that obvious criticism?
Mr. Réal Ménard:
Thank you, Mr. Chair. It is a pleasure to welcome the commissioner. I am extremely pleased, not to say euphoric, to have heard your testimony, because I was a bit — and I say this with all due respect — disappointed by the previous witness.
I believe that our colleague, Mr. Godin's, bill, is essential in order to send a clear message. It will help prepare the next generation of jurists by informing them of the rules of the game. In our legal system, people do not compete for seats on the Supreme Court, they are appointed. Partisan considerations might sometimes be taken into account, but there is no doubt that the Supreme Court is composed of highly skilled justices. Future members of the judiciary will know that the knowledge of our two official languages will be one of the factors used to assess competency. That is extremely important.
I was somewhat surprised. A colleague whose name I will not mention asked a question earlier that might be of concern to you in your role of commissioner. He asked the justice whether, to his knowledge, complaints had already been filed concerning the use of French before the Supreme Court. With all due respect to the previous witness and his former position, he did not seem to take the matter very seriously.
As the commissioner, are you able to tell us of any representations that were made to you by members of the legal community, regarding the lack of linguistic ability of some justices? I understand that this is a sensitive area, but have you already received complaints in that regard?
Mr. Graham Fraser:
I have two things to say about that. First of all, with all due respect to the previous witness, I do not believe that a unilingual person is best suited to evaluate the quality of the interpretation.
When I watch a film in French with English subtitles, I say to myself that I would not have translated a given sentence that way. However, when I watch a film in German with subtitles, I cannot say whether the film has proper subtitles or not.
I know that one of the witnesses this week had concerns about his own submission before the Supreme Court. The witness made similar comments one year ago, when we appeared before a committee. I wondered whether he was exaggerating.
I am often very impressed by the work of the interpreters. Theirs is an extremely difficult job. I greatly admire the work done by interpreters. I know a few of them and find that they do a masterful job. Nevertheless, I remember watching one of my appearances before a committee on CPAC and telling my wife that that was not exactly what I had said.
When you express nuances, it is quite possible that the interpretation might not convey the exact meaning of what you are trying to say. That might happen to a lawyer who pleads his case before the Supreme Court.
We have not received any complaint regarding the interpretation service, but we did receive two complaints regarding certain deficiencies within other federal tribunals, because of a shortage of bilingual justices. I spoke of that problem with the Minister of Justice.
Mr. Daniel Petit (Charlesbourg—Haute-Saint-Charles, CPC):
Good afternoon, Mr. Fraser. We meet regularly in a number of committees. Welcome to the Standing Committee on Justice and Human Rights.
You know that this issue is of interest to us, especially since we are dealing with a private member's bill. Of course, you know that the bill is very straightforward. More words would not necessarily amount to more meaning. At times, few words can mean a whole lot.
I am interested in a few words that are taken directly from the bill, and I quote: "[...] who understands French and English without the assistance of an interpreter."
I already asked this question during a meeting that dealt with the same topic. You know that I come from a unilingual French province. Bill 101 is in effect everywhere, even in the court system, etc. My colleague who introduced the bill comes from an officially bilingual province. You understand the difference between the two. Naturally, Bill C-232 intends to establish institutional bilingualism. You are here to speak to that. The bill states "without the assistance of an interpreter". Earlier, you heard that there were a number of lawyers on this committee. Mr. Dosanjh might have been the Attorney General of his province. But being a unilingual anglophone, he could not be appointed to the Supreme Court. Although I am bilingual, I might not be considered for such a position because I might not have the skills required. There is more to this, you see? There is much more.
You might know the Supreme Court. Lawyers send written submissions, requests, there are procedures to obtain the authorization to appear before the Supreme Court, etc. All that is done in the language of origin, for example, French. My counterpart might be anglophone, but I will speak in my own language. However, as Mr. Lemay pointed out a little earlier, a person handles the files. If the words “without the assistance of an interpreter” are used, that would mean that the justice who would be reading my file would have to read all the submissions in the language of the council or client, whether in French or in English. The justice would have to read all the requests in the language of the individual, regardless of his origins, He would have to understand not only when listening, but would also have to have a good written understanding. If it says “without the assistance of an interpreter”, that does not only apply to someone who is speaking to us, but also to all the written material that we receive.
What is your understanding of the expression “without the assistance of an interpreter”? Is it only for oral communications, or for written material as well? Do not forget, this is important. These are expensive considerations.