Notes for an appearance before the House of Commons Standing Committee on Official Languages – Full implementation of the Official Languages Act in the Canadian Justice System

Ottawa, Ontario, May 4, 2017
Ghislaine Saikaley - Interim Commissioner of Official Languages

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Mr. Chair, honourable members of the Committee, good morning.

Thank you for inviting me to speak to you today as Interim Commissioner of Official Languages. I would like to take this opportunity to remind you that my team and I are always available to answer questions from parliamentarians, even during this time of transition for our office.

Your study on access to justice is of the utmost importance, and I would like to thank you for allowing me to share with you two important issues on this matter.

My comments concern the posting of Federal Court decisions and access to the justice system.

The Courts Administration ServiceFootnote 1

On the matter of Federal Court decisions, former Commissioner Graham Fraser tabled a report to Parliament last fall on his investigation into the Courts Administration Service. This report followed his April 2016 report to the Governor in Council.

The problem concerns the posting of decisions on Federal Court websites, which is often not done in both languages at the same time. In fact, it can take many months for a decision to be published in the other official language.

We started our investigation into this situation in 2007. Ten years later, complaints are still coming in. The Courts Administration Service is of the opinion that the publication of decisions on websites falls under Part III of the Official Languages Act, which governs the Administration of Justice. The institution maintains that Part IV of the Act, which sets out federal institutions’ language obligations in terms of communications with the public—which we consider to include Internet communications—does not apply to Federal Court decisions because of the principle of judicial independence. While we recognize the importance of this principle, we believe that publishing Federal Court rulings falls under Part IV of the Act, and that it is the public’s right to have access to justice in both official languages that is directly compromised when rulings of federal courts are not published simultaneously on their websites in both official languages.

Numerous discussions with the Courts Administration Service have failed to resolve the dispute. Our 2015 final investigation report concluded that the Courts Administration Service was still infringing the Official Languages Act. Because the institution did not act on his recommendation, then Commissioner Fraser submitted a report to the Governor in Council and recommended that this ambiguity be resolved either by tabling a bill or by applying for a reference to the Supreme Court of Canada. Following the Justice Minister’s decision not to respond to this recommendation, Commissioner Fraser tabled a report to Parliament.

To resolve this impasse, the legislation needs to be clarified. I hope that the Committee will see fit to recommend that the government draft a bill to clarify the language obligations of the federal courts regarding the posting of decisions.

Our study on Access to Justice in Both Official Languages: Improving the Bilingual Capacity of the Superior Court Judiciary

Access to justice is a fundamental right for everyone. Despite the provisions of the Criminal Code that recognize the right of all Canadians to be heard in the official language of their choice anywhere in the country, approximately two million Canadians from official language minority communities are running into problems trying to exercise this fundamental right. We are seeing the same situation in civil proceedings, where provincial or territorial laws recognize the right to be heard in either official language to various degrees. Many of the obstacles are described in the 2013 studyFootnote 2 on access to justice that former Commissioner Fraser published in cooperation with his provincial counterparts in Ontario and New Brunswick. The study looked at the appointment process of superior court judges and the language training provided to them. It concluded that the process does not guarantee a sufficient number of judges with the language skills needed to hear Canadians in the official language of the linguistic minority without delays or additional costs.

This conclusion was based on two main findings.

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

Second, there is no objective evaluation of the language skills of superior court judiciary candidates. Until recently, the only criterion was a single question on the application form for the superior court judiciary asking candidates whether they were able to conduct a trial in either official language. This self-evaluation was never verified objectively.

The study presented 10 recommendations to rectify the situation and stressed the importance of establishing a coordinated approach by the federal Minister of Justice, the provincial and territorial ministers of justice and the chief justices.

The previous federal government did not address the recommendations of our study.

However, during the past year, we have noticed some progress. I would like to draw your attention to the changes the federal government made in October 2016 to the appointment process of superior court judges. The new nomination form now includes more specific questions on candidates’ language skills, and the new process includes the option of evaluating candidates’ language skills. When the new process is fully implemented, the Minister of Justice will have access to the results of these evaluations when discussing a court’s needs with a Chief Justice or when making recommendations for appointments to the bench. These changes are concrete measures that address some of the recommendations issued by Commissioner Fraser in his study.

This recent progress reflects an increasing awareness in the legal community with regard to access to justice in both official languages. However, there still many other issues to overcome before we can say that we have achieved real equality of access.

Thank you.

I will be happy to answer any questions you may have.


Footnote 1

Office of the Commissioner of Official Languages, Report to Parliament of the Commissioner of Official Languages on the investigation into the Courts Administration Service under subsection 65(3) of the Official Languages Act, Ottawa, November 2016. On-line version accessed April 12, 2017.

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Footnote 2

Office of the Commissioner of Official Languages Access to Justice in Both Official Languages: Improving the Bilingual Capacity of the Superior Court Judiciary, Ottawa, 2013. On-line version accessed April 12, 2017.

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