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Montreal, Quebec, November 19, 2013
Graham Fraser - Commissioner of Official Languages
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Beginning of dialog
Let me begin by thanking Lawrence David and Droits linguistiques McGill for extending this kind opportunity to address the Faculty of Law on an issue of great importance to all Canadians.
This university holds a special place in the story of official languages in Canada. Two McGill faculty, Dean of Law Frank Scott and political scientist Michael Oliver, served on the Royal Commission on Bilingualism and Biculturalism—Scott as a commissioner and Oliver as director of research.
The observations and recommendations put forward by the Royal Commission have shaped Canada’s second century as much, if not more, than any other in-depth study of Canadian society in our history.
But even now, 50 years after the launch of the Royal Commission, some issues continue to perplex. Access to justice is one such issue.
As Commissioner of Official Languages, I feel that access to justice in our courts is an issue of growing concern. I am not alone. Chief Justice of the Supreme Court Beverley McLachlin has remarked that “access to justice is the greatest challenge facing the Canadian justice system.”Footnote 1
The justice system, by its very nature, is an institution not well suited for change. However, there has been a lot of great work carried out to investigate how the situation could be improved.
This August, I had the pleasure of attending the Canadian Bar Association’s annual legal conference in Saskatoon where two reports on access to justice were released:
- the CBA’s Access to Justice Committee released a report titled Reaching Equal Justice: An invitation to envision and act;Footnote 2 and
- in partnership with my provincial counterparts in New Brunswick and Ontario, I released the report titled Improving the Bilingual Capacity of the Superior Court Judiciary.
The CBA’s report takes a broad approach to access to justice, whereas mine focuses on a specific aspect of the access to justice issue in Canada—access to justice in both official languages.
The CBA report describes the nature and extent of access to justice challenges for Canadians. In particular, it describes how studies have consistently shown that almost half of us—45% to be exact—will experience a legal problem over any three-year period. “Over the course of a lifetime,” it suggests, “almost everyone will confront a justiciable problem.”Footnote 3
That means that access to justice in both official languages is a serious concern for the more than two million Canadians living in an official language minority situation—one million right here in Quebec—who will more than likely find themselves before the courts at one point or another in their lifetime.
We found that citizens who seek justice in the minority official language before the superior courts are often forced either to plead their case in the language of the majority, or deal with additional costs and delays if they insist on being heard by bilingual judges.
And the longer legal problems remain unresolved, the greater the disruption to the lives of Canadians. In fact, studies have shown that “unresolved problems can escalate, and are linked to problems in other areas—health, social welfare and economic well-being, social exclusion and poverty.”Footnote 4
This means that a member of an official language minority community in Canada seeking to access the justice system must not only overcome the usual barriers like legal fees and the increasing complexity of the legal process, but they must also face additional costs or delays if they want to be heard in the official language with which they identify most strongly.
In a criminal case, Canadians are entitled to a preliminary hearing and a trial in the official language of their choice, regardless of where in the country the case is heard.Footnote 5 What is less well known is that, in civil matters, approximately two thirds of judges in superior courts hear cases in provinces and territories that require them to respect the language rights of citizens. This includes matters in areas of family law, wills and estates law, contract and commercial law, and bankruptcy law.
In concrete terms, whether it is an English-speaking Quebec couple in an adoption process, a Franco-Ontarian accused of an indictable offence or an Acadian dismissed without cause, all should be able to present their case before the court in a precise and nuanced manner in the official language that is central to their sense of identity.
In Quebec, section 133 of the Constitution Act of 1867 guarantees the right to use English or French in all cases before the Superior Court and Court of Appeal of Quebec. I should mention that we found that Montreal has seen the appointment of judges capable of hearing cases in both official languages. This is not the case everywhere in Quebec. It most certainly isn’t the case in the other provinces either.
One of our key findings was that, in order for all citizens to have access—at all times and without the additional barriers of cost and delay—to judges who have adequate skills to hear cases in the minority official language, it is essential that the Minister of Justice appoint a sufficient number of bilingual superior court judges.
It was found that the current appointment process for superior court judges does not allow for the appointment of an appropriate number of bilingual judges who have adequate language skills to hear cases in the minority language. On the application form to become a judge, a question or check-box that asks candidates to specify the languages in which they are capable of hearing cases and conducting trials is simply not enough to properly asses a candidate’s language skills.
We also found the claim that there is an insufficient number of qualified bilingual candidates is simply unfounded. In reality, it is impossible to know how many bilingual lawyers apply to the judiciary because that type of data is not collected.Footnote 6 There is currently no mechanism to evaluate the number of qualified bilingual candidates in the pool from which the Minister of Justice makes each new appointment.
Language training, while it perhaps satisfies the needs of judges with regard to second-language learning and maintenance of language skills, should be considered only as an additional way to improve the bilingual capacity of a superior court and not as the primary way of achieving that capacity.
Now is the time for a collaborative effort to be made by the federal and provincial attorneys general, chief justices and other stakeholders such as the CBA, the associations of French-speaking common law jurists, and law societies, to act and implement the 10 recommendations in our report.
Last month, the Action Committee on Access to Justice in Civil and Family Matters, an initiative spearheaded by Chief Justice McLachlin herself, released its report, A Roadmap for Change.Footnote 7 This initiative similarly calls for a greater coordinated and collaborative effort to be made amongst all justice system stakeholders. I take this as further evidence that we are at an exciting time with respect to access to justice in Canada and that real change can be achieved.
Now, before I get to the Supreme Court decision in the Conseil scolaire francophone de la Colombie-Britannique v. British Columbia, let me begin by reading you a quotation:
A recent letter to the editor… contained the following declaration: “Just because French is the mother tongue of three million people in the province of Quebec, we have no desire to become a bilingual country. English is the official language of the rest of Canada, and of 130 million people in the United States.”
The writer of this letter lives in British Columbia. Safe behind the rampart of the Rockies, he must feel himself secure in his cultural nest. Perhaps he did not notice that he had used bilingual coins to buy the bilingual stamp which he stuck on the envelope as he posted his protest. Quebec was, in his view, an exception to the general pattern of Canada, a remote and peculiar province whose claim of equality for the French language must not be allowed to prevail. No doubt in voicing this opinion he expressed the views of many people who live outside Quebec.
Yet British Columbia is already, in an important respect, a bilingual province. So are all the other common-law provinces. English is not “the official language of the rest of Canada,” if by that is meant the only official language. Throughout the whole country, and not only in Quebec, the French language has an official status. True, it has an additional use and position in Quebec, for purely provincial purposes, that are not found elsewhere, but the federal use of the language is surely more important than the provincial use. Canada is a bilingual country, and British Columbia can truthfully be called a bilingual province. Footnote 8
That was Frank Scott, writing in 1947, when he was a member of faculty, but not yet dean.Footnote 9
Twenty years later, in 1967, the Royal Commission on Bilingualism and Biculturalism, of which Scott was an important member, published its first report, recommending the passage of an official languages act that would establish the equal status of English and French in Canada, and create the position of Commissioner of Official Languages, which I now hold.
Recently, the Supreme Court held that the British Columbia courts were not obliged to admit exhibits that had been written in French as part of an affidavit. Some might argue that this challenges Scott’s assertion.
I will discuss the Supreme Court’s decision in a moment, but first let me describe some of the history of the language jurisprudence that has been developed over the past five decades.
The Official Languages Act was introduced by the Trudeau government and passed in 1969. It recommended, among other things, that Ontario, Quebec and New Brunswick should be officially bilingual.
In 1971, in an attempt to agree on the Constitution, Prime Minister Trudeau and the ten premiers agreed on the Victoria Charter. It ultimately failed, because Quebec withdrew its support—but on the language front, it represented a significant advance: it went farther, in fact, than the 1982 Charter.
The Victoria Charter would have guaranteed the right to use English or French in every province east of Saskatchewan, and would have accorded the right to any individual to use English or French in dealings with the federal government and the governments of Ontario, Quebec, New Brunswick, Prince Edward Island and Newfoundland. The statutes of each province would have been published in English and French, and when a province did not publish them in the other official language, the federal government would.
In the wake of the Victoria Charter, the British Columbia government prepared to respond with legislation. Supreme Court Justice Richard Wagner wrote the following in his recent decision:
A bill was in fact introduced in 1971 to provide the courts with a discretion to conduct civil trials in French. The bill was never adopted, however, and during second reading, the Attorney General expressed concerns about the capacity of the court system to deal with cases in French.Footnote 10
Eleven years later, with the patriation of the Constitution and the introduction of the Canadian Charter of Rights and Freedoms, several elements of the Official Languages Act were enshrined in the Charter. However, in contrast with the enthusiasm of 1971, only New Brunswick—whose Official Languages Act pre-dated the federal Act by several months—became officially bilingual.
The initial decisions by the Supreme Court on language rights were very limited and restrictive. In the Société des Acadiens v. Association of Parents for Fairness in Education decision in 1986,Footnote 11 the Court concluded that “language rights … are based on political compromise,” and were thus more limited than other rights protected under the Charter. The Court came to the astonishing conclusion that the right to use English or French in court did not include the right to be understood.
That restrictive interpretation—part of a trilogy of decisions—stood for another 13 years, when it was explicitly reversed by the Supreme Court in Beaulac.Footnote 12
The decision, written by Justice Michel Bastarache, was clear and sweeping. “Language rights must in all cases be interpreted purposively, in a manner consistent with the preservation and development of official language communities in Canada,” he wrote.
There are a number of things worth noting about the Beaulac decision. It was sweeping and definitive in its nature and tone. Although the issue before the Court was the interpretation of the language provisions contained in the Criminal Code of Canada, the new interpretive method could be, and was, extended to other language rights guaranteed in legislation as well as constitutional provisions.
And the Chief Justice wrote an interesting concurrent opinion. She agreed with the outcome, but added a cautionary note. “It is a well-established rule of prudence that courts ought not to pronounce on constitutional issues unless they are squarely raised for decision. This is not a constitutional case.”
This can be read as a reflection of her own caution in using cases that are not purely constitutional in nature to make sweeping advances in Charter rights.
The recent British Columbia case arose when two groups of parents, the Conseil scolaire francophone de la Colombie-Britannique and the Fédération des parents francophones de Colombie-Britannique brought a court action against the province arguing that British Columbia was not meeting its Charter obligations with respect to Francophone schools. The provincial government responded by challenging the standing of the Fédération and the Conseil to bring the action.
The Conseil and the Fédération set out to prove that they had standing by filing affidavits in which they described their roles in protecting and promoting French-language education rights. As part of the proof of these activities, they attached business documents to the affidavit that were in French. The British Columbia court refused to accept the documents without an accompanying translation, arguing that the judge was bound by decisions in which the British Columbia courts had held that the language of the civil courts in that province is English.
“According to those decisions,” wrote Judge Wagner, “the requirement that proceedings in the British Columbia courts be in English derives from an old English statute that has been received into the law of the province by virtue of s. 2 of the Law and Equity Act, R.S.B.C 1996, c. 253. The English statute in question is entitled An Act that all Proceedings in Courts of Justice within that part of Great Britain called England, and in the Court of the Exchequer in Scotland, shall be in the English Language, 1731, 4 Geo. II, c. 26 (“the 1731 Act.”).”Footnote 13
What is particularly interesting about the use of the 1731 Act to exclude the use of French by a French-speaking school board and a French-speaking parents association in British Columbia is that the Act was initially introduced to protect citizens—litigants—from the use of Latin, and French, in the courts. In 2013, it is being used to protect the state from an official language being used by citizens.
To summarize the majority decision, the Supreme Court concluded that documents filed with affidavits met the criteria of the 1731 Act, that the Charter does not require any province other than New Brunswick to provide for court proceedings in both official languages and that “[f]ederalism is one of Canada’s underlying constitutional principles”.Footnote 14 However, it also made it clear that British Columbia is free to change its language policy.
Judge Wagner continued: “This being said, in light of s. 16(3) of the Charter, which specifically provides that provincial legislatures may advance the equality of status of English and French, it would be open to the British Columbia legislature to enact legislation, like that proposed in 1971, to authorize civil proceedings in French. Such legislation would no doubt further the values embodied in s. 16(3), which protects legislative initiatives intended to increase the equality of the official languages but does not, as this Court has already held, confer any rights. However, given the absence of any such initiative by the British Columbia legislature, it is not possible for this Court to impose one on it.”Footnote 15
In a dissenting judgment, Justice Andromache Karakatsanis, joined by Judges Abella and LeBel, argued that the 1731 Act did not cover pieces of evidence that had not been produced for the court, and that the courts did have the discretion to admit this material in evidence without translation. In addition, she argued that there were “various constitutional principles” that should guide the judge in exercising his or her discretion.Footnote 16
“The Official Languages Act manifests the fundamentally bilingual character of Canada,” she wrote, pointing out that the Supreme Court had recognized the Act as a quasi-constitutional statute.Footnote 17
“Thus, the motion judge should consider relevant constitutional values in exercising his or her inherent jurisdiction,” she continued. “These include the status of French as an official language in Canada, the protection of official language minority rights, and the constitutional commitment to safeguarding and promoting both the French and English languages.”Footnote 18
Some observers have interpreted the decision as a major setback for language rights. Pierre Allard in Le Droit called it “un revers majeur;”Footnote 19 Michel Doucet, a law professor at the University of Moncton called it surprising and worrisome.Footnote 20 The National Post’s Finn Poschmann suggested it represented “a change of tides.”Footnote 21
Certainly, I would have preferred to see Judge Karakatsanis’ view endorsed by the majority rather than Judge Wagner’s position. The dissident opinion reflected the argument that our lawyers made before the Supreme Court. However, does the decision represent a major setback for language rights?
I don’t think so. It was not a question of language rights before the court, but a narrow question of the applicability of existing statute and the discretion of the court to ignore it. For the majority, the heart of the decision was only what the British Columbia legislature has or has not done. Chief Justice McLachlin has already stated her views about the importance of prudence in using procedural issues to advance constitutional rights, and she sided with the majority.
In the same spirit, I think it is wise to be prudent in making sweeping interpretations of the significance of the decision.
It should be noted, however, that the Court did, in the interests of access to justice in both official languages, award costs to the Fédération and the Conseil. It was remarked that “[a]lthough costs are usually awarded to the successful party, there are exceptions. In this case, the appellants have raised a novel issue in the context of a broader Charter challenge….”Footnote 22
Would it have been a different decision under a previous court?
Certainly, the tone of the majority decision is different from the tone of the decisions that were written by Judge Michel Bastarache in the past. Because of Judge Fish’s impending retirement, he was not on the bench, and Judge Cromwell sat out to ensure an odd number: a seven-judge panel.
Would the outcome have been different if it had been a full nine-judge court, with two more bilingual judges participating in the decision?
One can only speculate.
- Footnote 1
The Right Honourable Beverley McLachlin, P.C., Chief Justice of Canada, addressing the Council of the Canadian Bar Association at the Canadian Legal Conference, August 13, 2011, in Halifax, Nova Scotia.
- Footnote 2
- Footnote 3
CBA Report, p. 8.
- Footnote 4
CBA Report, p. 8.
- Footnote 5
Criminal Code, R.S.C., 1985, c. C-46, s. 530.
- Footnote 6
More specifically, the Office of the Commissioner for Federal Judicial Affairs Canada does not keep this information.
- Footnote 7
The Action Committee’s report is available at www.cfcj-fcjc.org/collaborations#AC.
- Footnote 8
Frank R. Scott, “Canada, Quebec and Bilingualism,” in Essays on the Constitution: Aspects of Canadian Law and Politics, University of Toronto Press, Toronto, 1977, p. 197. Originally published in The Queen’s Quarterly, 54, 1947.
- Footnote 9
Scott studied law at McGill, taught as a professor and served as dean from 1961 to 1964. www.thecanadianencyclopedia.com/articles/frank-scott
- Footnote 10
Conseil scolaire francophone de la Colombie-Britannique v. British Columbia, 2013, SCC 42; para 53.
- Footnote 11
Société des Acadiens v. Association of Parents,  1 S.C.R. 549.
- Footnote 12
R. v. Beaulac,  1 S.C.R. 768.
- Footnote 13
Conseil scolaire francophone de la Colombie-Britannique v. British Columbia, 2013 SCC 42; para 7.
- Footnote 14
Ibid., para 56.
- Footnote 15
Ibid., para 57.
- Footnote 16
Ibid., para 105.
- Footnote 17
Ibid., para 107.
- Footnote 18
Ibid., para 109.
- Footnote 19
Le Droit, July 30, 2013.
- Footnote 20
A decision that “peut nous surprendre et surtout nous inquiéter.” L’Acadie Nouvelle, August 6, 2013.
- Footnote 21
“Drawing a line on French in B.C.”, National Post, August 1, 2013.
- Footnote 22
Conseil scolaire francophone de la Colombie-Britannique v. British Columbia, para 64.