Archived - Notes for an address at the annual meeting of the Language Rights Support Program
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Ottawa, Ontario, November 20, 2013
Graham Fraser - Commissioner of Official Languages
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Beginning of dialog
My colleagues, Katherine d’Entremont and François Boileau, and I were delighted to accept the Program’s invitation to present the findings of our joint study, which was released on August 16, 2013, at the Canadian Bar Association’s annual meeting.
But before I get into the details, I would like to draw your attention to the cover page of the study, which is called Access to Justice in Both Official Languages: Improving the Bilingual Capacity of the Superior Court Judiciary.
A picture is worth a thousand words
The saying “a picture is worth a thousand words” is very apt in describing the future of access to justice, which is superbly illustrated by the photograph of the sculpture by artist Eldon Garnet in the McMurtry Gardens of Justice in downtown Toronto. The sculpture depicts a mighty lion and a little lamb, each positioned at opposite ends of a platform. Despite the difference in size between the two animals, the platform remains perfectly balanced. The title of the sculpture? Equal Before the Law!
This magnificent sculpture serves as a perfect illustration of the ambition of the study, which is to ensure that all Canadians can fully and freely exercise their language rights in their dealings with Canada’s superior courts, in particular the right to be heard in the minority official language.
Unfortunately, the reality is quite the opposite, and our study joins the many voices that have expressed the urgency of acting on and addressing one of the largest challenges faced by the Canadian justice system, namely, eliminating those systemic problems that are major barriers to access to justice.
While access to justice is a concern for all Canadians before the courts, equal access to justice in either of Canada’s official languages is an additional challenge for the approximately two million Canadians who are members of official language minority communities. In fact, citizens who want to obtain justice in the minority official language and who want to be heard by bilingual judges are all too often forced to plead their case in the majority language or deal with additional costs and delays. One reason for this is that the bilingual capacity of the superior court judiciary remains a concern in a number of provinces and territories.
It is within this context that I conducted—in partnership with the French Language Services Commissioner of Ontario and the Commissioner of Official Languages for New Brunswick—a study that focuses on two subjects directly related to the bilingual capacity of superior court judges: the judicial appointment process and the language training available to judges.
But before sharing our findings with you, I would like to provide some clarification on the study’s scope and methodology.
Study scope and methodology
The study sought to determine to what extent the judicial appointment process ensures that an appropriate number of bilingual judges are appointed to superior courts. The purpose of the study was not to determine whether there is a shortage of bilingual judges.
The study focused solely on the bilingual capacity of the judiciary in superior trial courts and courts of appeal. It does not deal with the bilingual capacity of the Supreme Court of Canada or the federal courts.
In the study, the bilingual capacity of the judiciary was defined as the presence of an appropriate number of bilingual judges in superior courts. These judges must have the language skills needed to preside over hearings in the official language of the minority.
To gain a perspective on the challenges related to the bilingual capacity of the superior court judiciary in all parts of the country, the study looked at the situation of the superior courts in Ontario, Quebec, Manitoba, Alberta, New Brunswick and Nova Scotia.
We also took into account the diversity of provincial language policies. Not all provinces recognize a citizen’s right to be heard in the minority official language, except in criminal proceedings. However, I have noted that two thirds of superior court judgesFootnote 1 work in provinces and territories that must respect citizens’ language rights in cases related to civil litigation, family law, wills and estates law, contract or commercial law, and bankruptcy law.
To help us in our study, we formed an advisory committee consisting of a range of experts from the legal community, including the Canadian Judicial Council, the Barreau du Québec, the Fédération des associations des juristes d’expression française de common law, the Centre canadien de français juridique and the Canadian Bar Association.
The study was based on quantitative and qualitative data collected from 270 people, through:
- 32 interviews conducted with chief justices of the superior courts and appeal courts in the targeted provinces, and with certain other provincial chief justices and key individuals;
- 202 responses to an on-line survey obtained from members of French-speaking common law jurists’ associations and a sample of members of the Quebec bar; and
- 36 follow-up interviews with counsel who responded to the survey.
In practice: What people told us
The survey respondents were asked whether the superior courts and courts of appeal are meeting certain criteria with respect to access to justice in both official languages, such as:
- sufficient number of bilingual judges on the bench;
- language skills of judges considered bilingual;
- availability of bilingual judges;
- timeframes for proceedings in the minority language.
The respondents indicated that in districts where it is considered easy to be heard in the minority language, there is a sufficient number of bilingual judges. However, the responses were mixed when it came to the availability of judges and timeframes for proceedings, with just 58% indicating that the timeframes were comparable.
In districts where it is difficult to be heard in the minority language,
- 82% of respondents said that this situation was mainly the result of the insufficient number of bilingual judges;
- 85% of respondents said that, in general, there are not enough bilingual judges available.
Survey respondents felt that, generally speaking, the situation is better in the courts of appeal, especially in New Brunswick and Quebec.
Before sharing our findings, I;would like to share with you two observations made by participants during the interviews:
There are some judges who say they are bilingual, but once they are appointed, they find out that they do not actually have the ability to preside over French-language hearings, and then refuse to hear cases in French. [translation]
And the other:
My experience tells me that our [court’s bilingual] capacity has occurred simply by happenstance or luck. I am not aware that the language capability of a candidate for judicial office has played a part in their appointment to this court.
These last remarks were made by a judge.
Our findings and recommendations on the appointment process
What were our findings on the judicial appointment process for superior courts?
In our review of the situation and through the information collected during our consultations, we found that the judicial appointment process does not guarantee the presence of an appropriate number of judges with the language skills required to respect the language rights of Canadians at all times.
This is based on three major observations.
First, there is no objective analysis of needs in terms of access to the superior courts in both official languages in the different districts and regions of the country.
Second, there is no coordinated action on the part of the federal Minister of Justice, his provincial and territorial counterparts, and the chief justices of superior courts to establish an objective process to determine the minimum (or appropriate) number of bilingual judges required to ensure sufficient bilingual capacity at all times.
Third, the evaluation of superior court judicial candidates does not allow for an objective verification of the language skills of candidates who identify themselves as being able to preside over proceedings in their second language.
In view of this finding and these observations, we have made concrete and pragmatic recommendations concerning the appointment process. These recommendations cannot be implemented without coordinated action by the federal Minister of Justice, his provincial and territorial counterparts and the chief justices of the superior courts.
In particular, I recommend that the federal Minister of Justice establish—together with the attorneys general and the superior court chief justices 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 to identify the appropriate number of bilingual judges and/or designated bilingual positions.
I also recommend that the federal Minister of Justice encourage the attorneys general of each province and territory to initiate a consultation process with the judiciary and the bar to take into consideration their opinions on the appropriate number of bilingual judges or designated bilingual positions. French-speaking common law jurists’ associations or the legal community of the linguistic minority population should be invited to participate in this process.
I further recommend that the federal Minister of Justice give the Office of the Commissioner for Federal Judicial Affairs the mandate to implement a process to systematically, independently and objectively evaluate the language skills of all candidates who identify the level of their language skills on their application form.
Our findings and recommendations on language training
When it comes to language training provided to superior court judges, the study found that it is a challenge for some judges to maintain their language skills. While the language training program currently offered by the Office of the Commissioner for Federal Judicial Affairs is appreciated by superior court judges, both in terms of second-language learning and maintaining and strengthening their language skills, I recommend improving the program—particularly by enhancing its applied component.
More specifically, our study refers to the language training sessions provided to provincial court judges—and in particular the sessions in Caraquet—enabling them to assess their language capacity through simulated hearings. My colleague, Katherine d’Entremont, will be talking to you more about this innovative language training program that has been developed by Justice Yvette Finn and the Centre canadien du français juridique.
Lastly, we would remind you that it is important to raise awareness of language rights among all parties involved in the court system—judges included. This is why I recommend that the Canadian Judicial Council consider asking the National Judicial Institute to add a module on the language rights of litigants to its orientation and continuing training programs.
Access to justice in both official languages is too important an issue to be left to chance.
Last October, A Roadmap for Change, an important report on access to justice, was released. In the introduction, the Honourable Justice Cromwell, who chaired the deliberations of the Action Committee on Access to Justice in Civil and Family Matters, wrote that we must make changes urgently, that we must take a collaborative and systemic approach and, above all else, that we must act in a focused way. According to Justice Cromwell, the real work begins following publication of the report.
This is essentially the message we conveyed when our study was released. The recommendations in the study cannot be fully implemented without a collaborative approach involving the federal Minister of Justice, his provincial and territorial counterparts and the chief justices, as well as the associations of French-speaking legal professionals, the law societies and the Canadian Bar Association.
Thank you. I would be pleased to answer any questions you may have.
- Footnote 1
660 judges out of 1017, or 65%