Notes for an appearance before the House of Commons Standing Committee on Justice and Human Rights
Graham Fraser - Commissioner of Official Languages
Ottawa, Ontario, March 27, 2014
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Mr. Chair, honourable committee members, good morning.
Thank you for offering me this opportunity to present my views on your study of Part XVII of the Criminal Code—language of the accused—and the implementation of the 2008 amendments introduced by the current government.
The Office of the Commissioner of Official Languages has been following the evolution of these measures since 1995 and in 2008 I was pleased to appear before this committee in support of these amendments.
As members of this committee know, in August 2013 I published a joint study with the Commissioner of Official Languages for New Brunswick and the French Language Services Commissioner of Ontario titled Access to Justice in Both Official Languages: Improving the Bilingual Capacity of the Superior Court Judiciary. I would like to talk about this study because our recommendations are crucial in ensuring that the language rights of the accused are respected.
This study led us to conclude that the process for appointing judges does not guarantee the appointment of an appropriate number of bilingual judges to the country’s superior courts and courts of appeal. Consequently, despite the provisions in the Criminal Code granting Canadians the right to be heard in the language of their choice in criminal cases, the ability to exercise this right remains uncertain.
Our finding is based on three key observations:
First, there is no objective analysis of needs in terms of bilingual judges in the country’s different districts and regions.
Second, there is no coordinated approach on the part of the federal Minister of Justice, his provincial and territorial counterparts and the chief justices of the superior courts to establish a process that would ensure that an appropriate number of bilingual judges are appointed.
Finally, the evaluation of superior court judicial candidates does not allow for an objective verification of the language skills of candidates.
In fact, candidates for the federal judiciary can declare on their application form that they are capable of conducting trials in both official languages, but this statement is not objectively verified. At most, the committee analyzing the candidatures will consult those named as references. However, candidates are never interviewed in person, nor are they evaluated through an objective testing of their language skills, as is the case for public service employees, for example.
In light of these findings, I have made several recommendations, directed primarily to the federal Minister of Justice:
In particular, I recommended that the Minister establish, together with the attorneys general and the chief justices of superior courts of each province and territory, a memorandum of understanding to adopt a common definition of the level of language skills required of bilingual judges and identify the appropriate number of bilingual judges and designated bilingual positions.
I have also recommended the implementation of a process to objectively evaluate the language skills of all candidates who identified the level of their language skills on their application form.
On February 22, 2014, the Canadian Bar Association unanimously adopted a resolution at their mid-winter meeting in Ottawa that supported our study and urged the federal Minister of Justice to implement our recommendations.
It is important to clarify that the goal of our study was not to determine whether there is a lack of bilingual judges in the country’s superior courts. Rather, it was intended to determine to what extent the judicial appointment process guarantees sufficient bilingual capacity in superior courts. However, I believe that the implementation of our recommendations is the best way to develop a pool of bilingual judges in the country’s superior courts. Also, our study applies to superior courts only, which deal with the most serious criminal cases and are also used in trials with jury. The study does not apply to provincial courts.
Regarding the number of bilingual judges in the country, I would like to make a few additional comments. During their appearance before you, certain witnesses stated that there were sufficient bilingual judges in the country’s courts. I cannot speak to the number of bilingual judges in provincial courts. I would however mention in passing Access to Justice in French, a 2012 report published in Ontario under the direction of Paul Rouleau and Paul LeVay, which alludes to many problems with respect to the bilingual capacity of provincial courts in Ontario. As for superior court judges, it is currently impossible to determine whether the number of bilingual judges is sufficient or not.
In order to be able to say that there are sufficient bilingual judges, there must be an assurance that the number of bilingual judges can respond to the needs of minority language communities in terms of access to justice in both official languages. Yet, as I mentioned earlier, no objective analysis of these needs is performed at any point of the superior court judiciary appointment process. The federal Minister of Justice consults chief justices before appointing a judge in superior courts, and the needs in terms of bilingual judges may sometimes be discussed in the context of those consultations. Given that the consultation process is entirely informal, we do not know what information chief justices consider when they communicate their needs in terms of bilingual judges.
We can speculate that chief justices base themselves in part on the demand for trials in the minority official language in previous years. However, as many stories reveal in our study, this number is inevitably inferior to the real needs. In fact, all too often, litigants are not asking to be heard in the minority language because of the obstacles this creates.
Among these obstacles, we can mention the delays and additional costs often caused by the requests for trials in the minority official language as well as the lack of language rights knowledge by court users and many key actors of the judicial system. These obstacles limit Canadians to proceeding in the majority official language, despite their rights to the contrary.
Appointing bilingual judges according to demand only contributes to this situation and creates a vicious circle that is detrimental to the implementation of Part XVII of the Criminal Code.
Another reason why we cannot say that there are enough bilingual judges is that the language skills of candidates to the superior court judiciary are not evaluated objectively. As I said earlier, candidates to the judiciary do not undertake an exam or an interview regarding their language skills. As a matter of fact, there are currently no definitions or objective criteria allowing us to determine what a bilingual judge is.
For all these reasons, my counterparts and I have urged the federal Minister of Justice to ensure a quick and collaborative implementation of these recommendations. The consequences of inaction are real for the citizens who must contend with the judicial system and who are not guaranteed to be heard in their official language of choice. The full implementation of these recommendations is crucial in ensuring that the rights guaranteed under Part XVII of the Criminal Code are respected.
I trust these comments will be useful as you carry out your study. Mr. Chair, I thank you and the honourable members of this committee for your consideration.