Archived - Notes for an address at the Canadian Judges' Forum during the Canadian Bar Association Legal Conference
This page has been archived on the Web.
Information identified as archived is provided for reference, research or recordkeeping purposes. It is not subject to the Government of Canada Web Standards and has not been altered or updated since it was archived. Please contact us to request a format other than those available.
Saskatoon, Saskatchewan, August 19, 2013
Graham Fraser - Commissioner of Official Languages
Check against delivery
Beginning of dialog
I would like to thank you for allowing me to share with you today the findings and recommendations of the study titled Access to Justice in Both Official Languages: Improving the Bilingual Capacity of the Judiciary for Superior Courts, which was released on August 16.
Access to justice in general is a question of great concern for many organizations, such as the Canadian Bar Association and the Canadian Judicial Council. Your organization will be holding a meeting on this issue tomorrow, in partnership with the Canadian Superior Courts Judges Association.
While access to justice is a concern for all Canadians, 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.
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 the key findings and recommendations of the study, I would like to highlight the participation of many judges and chief justices throughout the study. Their point of view and the experiences they shared during interviews had an impact on our findings and recommendations.
Some points on the scope of the study:
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 does not deal with the bilingual capacity of the Supreme Court of Canada or of the federal courts.
Lastly, the bilingual capacity of the judiciary is 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.
Our findings and recommendations on the appointment process
Our review of the situation and the information collected during our consultations 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 their language skills.
In light of this finding and these observations, we recommend concrete and pragmatic measures with respect to the appointment process.
Their implementation will rely on coordinated action by the federal Minister of Justice, his provincial and territorial counterparts as well as the chief justices of the superior courts, who have an important role to play in guaranteeing the bilingual capacity of the judiciary for superior courts.
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 to identify the appropriate number of bilingual judges.
We 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. French-speaking common law jurists' associations or the legal community of the linguistic minority population should be invited to participate in this process.
We also 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.
Our findings and recommendations on language training
The study found that some judges have difficulty maintaining their language skills.
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.
After reviewing the applied training workshops that are currently provided to provincial court judges in New Brunswick, we recommend improving the language training program, particularly its applied component.
In closing, I am convinced that the implementation of these recommendations will increase the confidence of Canadians who are members of official language minority communities and encourage them to exercise their right to be heard in the minority language.
I believe that this study will help chief justices evaluate the needs of each court in terms of the appropriate number of bilingual judges. It will also assist in the short- and long-term planning of language training.
Thank you for giving me the opportunity to present this study. I would be pleased to answer any questions you have.