Notes for an appearance before the Standing Senate Committee on Legal and Constitutional Affairs

Ottawa, Ontario, October 5, 2016
Graham Fraser - Commissioner of Official Languages

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Thank you, Mr. Chair.

Good afternoon, ladies and gentlemen, honourable senators and members of the Standing Senate Committee on Legal and Constitutional Affairs.

Thank you for giving me the opportunity to share my observations as part of your study on delays in Canada’s criminal justice system. I read your preliminary report with great interest. Your second recommendation, on the process for judicial appointments to provincial superior courts, particularly caught my attention.

First of all, I share your point of view regarding the urgent need to reduce the long delays in Canada’s justice system. The Canadian public deserves a much more accessible and efficient system.

While access to justice is an issue for all litigants, the approximately 2 million Canadians belonging to an official language minority community face an added challenge. Despite the provisions of the Criminal Code recognizing the right of all Canadians to be heard in the official language of their choice, there are obstacles preventing the exercise of this fundamental right. Lawyers often feel the need to advise clients that if they choose to assert their right to be heard in their preferred official language, the court proceedings will be longer and more costly.

This was one of the findings of the study on access to justice that I published in 2013Footnote 1 together with my counterparts in Ontario and New Brunswick. We examined the process for appointing superior court judges, as well as the language training that is offered to them. We came to the conclusion that the process does not ensure the appointment of a sufficient number of judges with the language skills required to hear citizens in the official language of the minority without incurring delays or additional costs.

Our conclusion is based on two main findings.

Firstly, there is no concerted effort to determine the needs of the superior courts in terms of bilingual capacity, or to ensure that a sufficient number of bilingual judges are appointed to these courts.

Secondly, there is no objective evaluation of the language skills of superior court judiciary candidates. The only such criterion consists of a question on the application form for the superior court judiciary regarding the languages in which the candidates state they are able to conduct a trial. This self-evaluation is never objectively verified.

We made 10 concrete recommendations to correct this situation. We stressed the importance of establishing a concerted approach involving Canada’s Minister of Justice, their provincial and territorial counterparts, as well as the chief justices.

The previous federal government did not address the recommendations of my study, nor did it initiate discussions with the provincial governments, despite the interest expressed by some, particularly Ontario and New Brunswick. For this reason, in my most recent annual report, my first recommendation is that the current government implement the recommendations of the 2013 study by October 31, 2016.

The Honourable Jody Wilson-Raybould, Minister of Justice and Attorney General of Canada, has not yet made any such commitment. The government has, however, committed to increasing transparency, accountability and diversity in the appointment process for superior court judges. Moreover, the Minister of Justice has committed to reviewing the appointment process, and her department initiated consultations with a range of actors this past summer. Members of my team were consulted and shared approaches that could be considered in order to uphold the rights of official language minority communities and address their needs more directly. I have given the clerk of the Standing Senate Committee on Legal and Constitutional Affairs the letter I sent to the Department of Justice Canada on that occasion.

I mentioned that some provinces have expressed an interest in improving access to justice in both official languages. Some tangible measures have already been taken. In the spring of 2015, the Honourable Madeleine Meilleur, Ontario’s Attorney General and Minister Responsible for Francophone Affairs, launched a pilot project,Footnote 2 based on an active offer of service strategy, to provide quality French services to French-speaking litigants and lawyers at the Ottawa courthouse. Meanwhile, since 2011, New Brunswick’s Provincial Court Judge Yvette Finn has been leading a language training program for provincially appointed judges from across Canada. At the beginning of this year, she also set up a language skills evaluation service for provincially appointed Canadian judges.

As part of the Canada 150 celebrations, the Office of the Commissioner of Official Languages is involved in organizing a national conference on 150 years of legislative and judicial bilingualism. This conference, which will be chaired by the Honourable Michel Bastarache, will bring together law students from every Canadian university, lawyers, academics as well as members of the judiciary and of Parliament, to look at how far we have come since 1867 and evaluate the progress that has been made. This will be an excellent opportunity to highlight the federal, provincial and territorial governments’ commitment to and co-operation in taking concrete action to improve the judiciary’s bilingual capacity and, in turn, access to justice in both official languages.

Thank you for your attention. I will now gladly take your questions.

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