Archived - Notes for an address during the Meeting of Council at the Canadian Bar Association's Legal Conference
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Saskatoon, Saskatchewan, August 18, 2013
Graham Fraser - Commissioner of Official Languages
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Beginning of dialog
It is always a pleasure to participate in the discussions of Canadian Bar Association Council members. Six months ago exactly, I met some of you during the Mid-Winter Meeting of Council in Mont Tremblant.
At that time, I presented you with an outline of my study on access to justice in both official languages, which I have just released. I can now share with you the key findings and recommendations of this study, titled Access to Justice in Both Official Languages: Improving the Bilingual Capacity of the Judiciary for Superior Courts.
“Everyone, regardless of income level, must be able to use the remedies that Canadian laws and the Canadian legal system provide. Otherwise, there is no justice.” This principle, which can be found on the Canadian Bar Association (CBA) Web page on access to justice, couldn't be truer.
It explains why the CBA devotes a lot of energy and resources to its “Envisioning Equal Justice Project,” a very important project with which many of you are associated in one way or another.
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, many studies confirm that citizens who want to obtain justice in the minority official language and 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 judiciary for superior courts remains a challenge in a number of provinces and territories.
It is in that 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.
Before sharing our findings, I would like to provide some clarifications on the study's scope and methodology.
First, the study seeks to determine to what extent the judicial appointment process ensures an appropriate number of bilingual judges are appointed to superior courts. However, the purpose of the study was not to determine whether there is a shortage of bilingual judges.
The study focuses solely on the bilingual capacity of the judiciary for superior trial courts and courts of appeal. It does not deal with the bilingual capacity of the Supreme Court of Canada or of the federal courts.
Lastly, we define the bilingual capacity of the judiciary 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 judiciary for superior courts 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 differences between provincial language regimes. Obviously, 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, in the superior courts, two thirds of judges 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 CBA.
The study relies 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 stakeholders;
- 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;
- 36 follow-up interviews with counsel who responded to the survey.
In addition, we studied all the pertinent literature published in the past 15 years, including the recommendations made by the CBA on the process for appointing superior court judges and the resolution adopted in 2005 that encouraged the appointment of bilingual judges.
What are 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 an adequate 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 light of this finding and these observations, we recommend that the federal Minister of Justice, in collaboration with his provincial and territorial counterparts as well as the chief justices of the superior courts, take concrete and pragmatic measures with respect to the appointment process and its implementation.
In particular, we recommend that the federal Minister of Justice 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/or designated bilingual positions.
We 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 point of view 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.
Lastly, we recommend that the federal Minister of Justice give the Office of the Commissioner for Federal Judicial Affairs the mandate of implementing a process to systematically, independently and objectively evaluate the language skills of all candidates who identified the level of their language skills on their application form.
Regarding 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, we recommend improving the program, particularly by enhancing its applied component.
In closing, I thank you for giving me the opportunity to present my study. I am confident that the implementation of these recommendations will strengthen the bilingual capacity of the superior court judiciary and give full access to justice to two million Canadians who are members of an official language community.
I would also like to thank the CBA for naming Guy Joubert to act on its behalf on our advisory committee. His participation throughout the study was invaluable, both in discussions during our committee meetings and during the review of the draft report.
Lastly, by deciding to release my study during the CBA's annual conference, I knew that I could count on its commitment and leadership. The CBA will be a key partner in the next steps to adopt a collaborative approach and involve all players affected by the study's recommendations.
I encourage you to visit the Office of the Commissioner's kiosk, where you can obtain further information and a copy of the study itself.
Thank you. I would be pleased to answer any questions you have.