July 6, 2010 Senate Hansard Senator Mobina Jaffer 2nd Reading of Bill S-232

Supreme Court Act

Bill to Amend Second Reading Debate Continued

On the Order:

Resuming debate on the motion of the Honourable Senator Tardif, seconded by the Honourable Senator Rivest, for the second reading of Bill C-232, An Act to amend the Supreme Court Act (understanding the official languages).
Hon. Mobina S. B. Jaffer: Honourable senators, I want to thank Senator Fraser for paying tribute to all the senators who spoke to the debate on Senator Tardif’s motion regarding Bill C- 232 on the Supreme Court Act.

Under this bill:

. . . any person referred to in subsection (1) may be appointed a judge who understands French and English without the assistance . . .
I would like to point out that this bill does not concern bilingualism, as the media would have us believe. Like many of my colleagues, I have considered the same question about this bill, in a context that is familiar to us all. The Prime Minister should speak both official languages, and so should the leaders of the opposition. We as parliamentarians are encouraged to be as bilingual as possible. Employees of the public service have no chance of being promoted if they are not bilingual.

My question is: why would we make an exception for Supreme Court justices? Should the crème de la crème of our society not be required to follow the same rules as anyone else wishing to be part of the public service? Let us not forget that there is a big difference between being bilingual and understanding a language. This bill asks that the judges understand the second language without necessarily being bilingual.

English

Honourable senators, there are nine justices appointed to the Supreme Court of Canada from thousands of lawyers across the country and among 34 million Canadians. By law, three Supreme Court judges are from Quebec and, by convention, we have three Supreme Court judges from Ontario, one from an Atlantic province, and two from the West.

Honourable senators, please note that we have only two Supreme Court judges from the West. There has been a lot of concern that judges from the West might not be able to understand French.

I have confidence that we have or will have jurists in Manitoba, Alberta, Saskatchewan and British Columbia who understand French. In today’s world, we cannot make the argument that we cannot find two capable and competent judges, from four provinces in the West, who understand both official languages. We would be compromising the judges.

A person considered to be a justice is a very competent person in the legal domain. I believe that they can be competent in two of our official languages. These skills are compatible. Honourable senators, by making this argument that we cannot find two judges in the West, we are not giving enough credit to my part of Canada.

Translation

The Official Languages Act of 1969 says that, under section 133 of the British North America Act, anyone can use either official language, while the act gives presiding judges the freedom to choose their language. How long will our so-called bilingual society tolerate this exemption?

Everyone knows that in every single one of Canada’s provinces, people use both official languages every day. Millions of anglophones across this country have francophone and francophile neighbours. These people cross paths daily, they participate in the same activities, they share their lives, and they have been living together for centuries. We can no longer operate like isolated silos, each with our distinct origins stored like grain in a separate silo.

We simply have to recognize that we form a single whole, a single entity. We have to share our best qualities in both English and French. Many people tend to believe that it is difficult to find legal services in French in Western Canada. But I want all honourable senators to know that British Columbia, the province I proudly represent here, has a francophone court and legal experts who offer services in French. Here is what the president of the Association des juristes d’expression française de la Colombie-Britannique, Francis Lamer, thinks:

It would be beneficial for all Supreme Court of Canada justices to understand both official languages, not only because they have to hear cases in French, but also because they have to read and understand written submissions from parties that choose to plead in French. Even with the help of simultaneous interpretation, pleading in French before a judge who neither understands nor reads French means missing out on an opportunity to make oneself fully understood.

English

Honourable senators, after hearing the various presentations against Bill C-232, I get the impression that people think we operate in silos in our provinces; that we speak either English or French in our courts. I agree that we mainly speak French or English, but there are courts in both languages in our provinces. Under section 530 of the Criminal Code, an accused whose language is one of the two official languages may apply to be heard in that language.
In my province, we have courts in which French trials are conducted. We have had a number of justices who have conducted many trials in French in my province, such as Justice Paris. He did that for many years. In addition, we also have many justices now who, for many years, have been learning French and are now fluent in it. Justice Cohen is one example. We also have many provincial court judges who know French.

Translation

Canadians identify with the very specific values of national identity, pride and bilingualism. We are not the only ones in the world to hold these specific values; they are held by many other peoples. However, the difference for us lies in putting these values into practice.

Take the example of the Swiss, mentioned by Senator Champagne in a speech she made not so long ago. I am not going to speak about education, but about the linguistic and judicial aspects that have a common principle: knowledge of a language. The three bilingual cantons in Switzerland” Bern, Fribourg and Valais have passed a great deal of language legislation.

At present, in the canton of Bern, according to section 17.a of the rules that govern language use in judicial proceedings:

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The competent judicial authorities for the entire canton generally use the language of the district with jurisdiction. With the agreement of the parties, the judge may authorize use of the other national language.
We can conclude that the judges, whether or not they want to, must understand the other language and therefore be bilingual.

Also in the canton of Bern, article 12 of the 1907 constitution, amended on June 9, 1985, proclaims that the national languages are French and German. The equality of these two languages must be observed in legislation and administration. Furthermore, article 62 of the constitution mentions that the judges of the cantonal court must know both national languages.

If the judges of that country can do it, honourable senators, is it not possible that the very best, the model individuals of our society can also do it? As a lawyer and a senator, I am expressing my point of view today.

English

As a lawyer, I want the justices to understand exactly what my client’s words meant in both official languages. When I appeared before the Supreme Court of Canada, I had the comfort of knowing that the nine justices would understand English. I am sure that the lawyers who present in French want the same comfort to know the justices understand them. The justices pronounce judgments for all of Canada and they should have knowledge of both of our languages. This bill only asks that they understand both languages.

Since a very young age, I have learned the importance of learning the language of the person you are working with as this enables you to gain meaningful insight into their thought processes. When I was a young child, I remember a family friend who wished to travel to Japan and learn Japanese. She told us that upon arriving in Japan, she faced several obstacles. The Japanese were resistant to having her learn the language because they felt that once you speak a person’s language, you understand how they think. Now, of course, this is no longer the case in Japan.

I believe that when you learn a language, you understand how that person thinks and feels. My family has a very diverse background, so if you listen to our conversation, it will never be in one language; it will be in English, Kutchi, Gujarati, Swahili and sometimes Hindi. We pick the word from the language that best describes what we are trying to convey.

For the justices, it is very important that they understand our two official languages.

Translation

With all due respect to the Supreme Court, allow me to express my own perception of this honourable institution. In my own awkward French, I would define it as the crème de la crème de la crème of our society. This higher court, the Supreme Court, is more than a symbol of justice in our land. Supreme Court justices are the people to whom the affairs of an entire nation of millions of people, half of North America from the Pacific to the Atlantic, are entrusted.

The Supreme Court, the ultimate arbiter in disputes, is unique and almost sacred. Think about it: Supreme Court justices make vital decisions on a daily basis for the well being of Canadians. I am sure their legal and language skills are fully compatible and knowledge of a second language can only improve our country’s legal system.

I am convinced that the sponsor of this bill, Senator Tardif, was right when she said:

I find it essential that an institution as important as the Supreme Court . . . reflect our values and our Canadian identity as a bijural and bilingual country.

English

Honourable senators, our country’s bilingualism is evolving. At one time in our history, we had unilingual Prime Ministers. Now we expect our Prime Minister to be bilingual. At one time in our history, we had unilingual Governor Generals. Now we expect our Governor General to be bilingual. At one time in our history, we had leaders of the opposition who were unilingual. Now we expect leaders of the opposition to be bilingual. At one time in our history, we had public servants who were unilingual. Now we expect public servants to be bilingual. Some of these public servants have come from outside of Canada and have to learn both of our official languages.

May I please have five minutes? Hon. Gerald J. Comeau (Deputy Leader of the Government): Five minutes.

Senator Jaffer: Why should our justices not be held to the same standard?

When our Chief Justice of the Supreme Court of Canada, Beverley McLachlin, who is originally from British Columbia and Alberta, can learn French, why would we expect any less from the other justices?

In 1969, the justices had been given an exemption from knowing both languages. It is now 40 years since the time they had been given this exemption. The time has arrived where the cream of our country’s crop from the legal profession understand both official languages.

Translation

If the judges of our Supreme Court, these people who judge the most sensitive cases and who must grasp the very essence of things, do not understand both official languages; if the crème de la crème de la crème of our bilingual society who deal with matters of national importance cannot meet the same criteria as federal employees; if this requirement does not apply to Supreme Court justices, then who does it apply to?

In this country, if we cannot require our federal representatives to be capable of understanding both official languages, then who?

Honourable senators, I recommend that you support this bill in order for judges to grasp the full meaning of the cases before them. Regardless of the language of the accused or the defendants, concerned citizens must have confidence in the ability of the judges to understand the facts without the assistance of an interpreter. The verdicts handed down by the judges must be based on informed decisions and a deep understanding of the arguments and the representations.

English

Honourable senators, when you vote for this bill, I ask you to think about this: Prime Minister Harper is from Alberta, the West. He made the effort to become bilingual. Why would we expect anything less from our nine Supreme Court judges?

Translation

Hon. Michael A. Meighen: Would the honourable senator take a question?

Senator Jaffer: Yes.

Senator Meighen: You mentioned Chief Justice McLachlin who you said learned French after being appointed to the Supreme Court. Do you agree that had this bill been in effect when she was appointed, Justice McLachlin would not have been deemed to be qualified?

English

Senator Jaffer: I agree that Chief Justice McLachlin is from my province and we are very proud that she is the chief justice of our country. When she became a justice, she did not know French, but it has been 40 years that the chief justices have had an exemption.

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Our country is bilingual. People who want to become justices train for that job for a long time. As senators, we, who protect the rights of Canadians, must take leadership and say that everyone, including the justices, need to know French. Yes, many years ago, Chief Justice McLachlin had to learn French, but now people know that in our country we expect bilingualism. I am sure we can find two justices from the West who understand both languages.

Translation

Senator Meighen: In your remarks, you emphasized the fact that one need not be fully bilingual, that it is enough to understand the other official language. But you keep talking about bilingualism. It seems to me that understanding the other official language and bilingualism are two different things.

Being bilingual means being able to express oneself orally in the other language, but comprehension does not require verbal expression. It has to be one or the other. To pick up on Senator Segal’s arguments, who will determine the level of comprehension? And what level would you deem acceptable basic understanding or comprehension on a par with that of Mr. Trudeau or some of our colleagues here?

English

Senator Jaffer: The act specifically states that all they have to do is understand French. They do
not have to be bilingual.

As for who evaluates it, it happens every day in our federal public service. We have a system where we test people in our federal system as to their comprehension of French, and I am certain the justices are capable of following the same system in the Supreme Court of Canada.

Translation

The Hon. the Speaker: Unfortunately, the honourable senator’s five extra minutes have run out. (On motion of Senator Meighen, debate adjourned.)

 

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