FINAL DRAFT

Graham Fraser Commissioner of Official Languages

Access to justice in both official languages across Canada: Initiatives of the Commissioner of Official Languages

Notes for an address to the Bar of Montreal

Montréal, Quebec October 21, 2015

Check against delivery Access to justice in both official languages across Canada: Initiatives of the Commissioner of Official Languages – Notes for an address to the Bar of Montreal Montréal, Quebec, October 21, 2015

Good afternoon,

I am very pleased to be with you today, and I would like to thank Casper Bloom for inviting me.

I was asked to reflect on the various initiatives on access to justice in both official languages that I have undertaken in the course of my mandate. When I was first appointed Commissioner in October 2006, the issue rose quickly to the forefront.

The federal government had just announced the elimination of the Court

Challenges Program, which had been set up in 1994 to provide financial assistance for important court cases that advance language and equality rights guaranteed under Canada’s constitution. Official language communities reacted very strongly to the news, and it wasn’t just the lawyers. Soon after I arrived,

I received some 40 complaints about this issue from across the country. This number would increase to 109 before our investigation was complete.

This was the first real test for the newly amended Part VII of the Official

Languages Act. In 2005, Parliament had amended Part VII to include a duty for federal institutions to take “positive measures” in carrying out the Government of

Canada’s commitment to enhance the vitality of official language minority communities and to support and assist their development.

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In the course of our investigation, my office conducted a comprehensive study of the legal impact of eliminating the Court Challenges Program. The study showed that the Program contributed directly and significantly to the advancement of language rights in Canada, and that it therefore enhanced the vitality and development of English and French minorities. More specifically, the study showed that the Program not only made it possible to clarify and promote language rights, but also encouraged respect for and the exercise of those rights.

Of course, providing funding for certain test cases helped to ensure that language rights were exercised and respected; however, the mere possibility that parties could obtain funding to develop a test case to ensure respect for their constitutional language rights was sometimes enough to pressure governments into fulfilling their duties.

The 2005 amendments to Part VII not only imposed a duty on federal institutions, but also provided the right of recourse before the Federal Court when institutions fail to discharge that duty. In 2008, The Fédération des communautés francophones et acadienne du Canada (FCFA) brought the matter before the

Federal Court. After our investigation was complete, I intervened in support of the

FCFA. In the spring of 2009, just as the Court was about to render judgment, an out-of-court settlement was reached between the government and the FCFA: the linguistic component of the Court Challenges Program would be replaced by the

2 Access to justice in both official languages across Canada: Initiatives of the Commissioner of Official Languages – Notes for an address to the Bar of Montreal Montréal, Quebec, October 21, 2015 new Language Rights Support Program, which joins us today in sponsoring this afternoon’s conference.

We will never know what the Federal Court’s ultimate decision was, so highly anticipated as it was at the time. What we do know, however, is that official language communities were undaunted in seeking a court remedy, and this got results.

One case that clearly demonstrated the continued need for a Language Rights

Support Program is the Caron case. What had started in December 2003 as a routine prosecution for a minor traffic offence—an illegal left turn—snowballed into the longest language rights trial in Canadian history. Mr. Caron’s defence represented a constitutional challenge, attacking the validity of Alberta’s

Languages Act, which abrogated French language rights in that province. In doing so, he followed the well-trodden path of other minority language advocates, including Georges Forest and his English-only parking ticket in Manitoba,

Duncan Cross MacDonald and his unilingual traffic summons in Quebec,

André Mercure and his English-only trial in Saskatchewan, and

Marie-Claire Paulin and her experience with unilingual police services in

New Brunswick, just to name a few. Like the Caron case, all of these cases worked their way through the courts of appeal before being heard by the

Supreme Court of Canada.

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Before the Court could deal with the merits of the Caron case, there was the issue of an interim cost order (otherwise known as Okanagan costs). After about

18 months of on-again, off-again hearings, the Crown had filed what was described as a “mountain” of historical evidence in reply. Having exhausted his limited personal funds, loans secured from supporters, donations from an Internet campaign and funding from the Court Challenges Program (which was abolished by the federal government before a request for additional funding could be considered), Mr. Caron established to the satisfaction of the provincial Court that he was unable to finance the rebuttal evidence necessary to complete the trial unless he was provided with interim costs. The order was challenged by the

Crown before Alberta’s Court of Queen’s Bench, the provincial Court of Appeal and, ultimately, the Supreme Court of Canada.

I intervened before the Supreme Court in support of Mr. Caron not only to illustrate the public importance of the court battle that he was fighting, but also because the case raised important issues of access to justice. Language rights occupy a privileged place in our constitutional order, but seeking redress before the courts is only possible if the financial means are available. The costs for the development, introduction and pursuit of constitutional litigation are exorbitant and often prohibitive. This is especially true for minority language communities

4 Access to justice in both official languages across Canada: Initiatives of the Commissioner of Official Languages – Notes for an address to the Bar of Montreal Montréal, Quebec, October 21, 2015 who often have very limited resources to bring long, expensive and complex claims against the government.

The Supreme Court decision upheld the order for interim costs, and the Court heard arguments on the constitutionality of Alberta’s Languages Act in

February 2015. We anticipate a decision on the merits in the coming weeks, almost 12 years after that illegal left turn.

Obstacles that limit access to justice are not always financial. Sometimes the law itself presents barriers that put minority language communities at a disadvantage when they try to have their rights enforced by the courts. In 2013, the Supreme

Court of Canada rendered its decision in Conseil scolaire francophone de la

Colombie-Britannique v British Columbia. The 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 obligations under the Canadian Charter of Rights and Freedoms with respect to

Francophone schools. The provincial government challenged their standing 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-

5 Access to justice in both official languages across Canada: Initiatives of the Commissioner of Official Languages – Notes for an address to the Bar of Montreal Montréal, Quebec, October 21, 2015 language education rights. As part of the proof of these activities, they attached business documents written in French to the affidavits. The British Columbia court refused to accept the documents without an English translation, arguing that the judge was bound by earlier decisions in which the British Columbia courts had held that English is the language of civil proceedings in that province.

Those decisions were based on a 1731 English statute that had been received into British Columbia law through the Law and Equity Act. The 1731 statute is called 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. The Supreme Court concluded that documents filed with affidavits meet the criteria of the 1731 Act, which had never been repealed by

British Columbia’s legislature. The Court also found that the Charter does not require any province other than New Brunswick to provide for court proceedings in both official languages and that federalism is one of Canada’s underlying constitutional principles. However, it also made it clear that British Columbia is entirely free to change its language policy.

What is particularly interesting about this case is the fact that the 1731 Act was introduced to protect British citizens—litigants—from the use of Latin and French in the courts. In 2013, it is being used to protect a Canadian province from one our country’s official languages being used by its citizens.

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In their dissenting opinion, justices Karakatsanis, Abella and LeBel concluded that the courts did have the discretion to admit this material into evidence without translation and that there were various constitutional principles that a judge should consider in exercising his or her discretion. 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 English and French languages. The dissenting opinion reflected the arguments that our lawyers made before the Supreme Court.

Although the courts have played a leading role in the advancement of language rights, the Conseil scolaire decision highlights the important role played by

Parliament and the provincial and territorial legislatures in ensuring access to justice in both official languages.

In my tenure as Commissioner, I have had the opportunity to support two bills at the federal level that sought to improve access to justice in the minority official language. One became law; the other did not.

The Criminal Code grants an accused the right to a trial in the official language of his or her choice, regardless of where the trial is held. Prior to 2008, judges throughout Canada who presided over criminal proceedings had a duty to notify accused who were not represented by counsel of their right. Since 2008, when

7 Access to justice in both official languages across Canada: Initiatives of the Commissioner of Official Languages – Notes for an address to the Bar of Montreal Montréal, Quebec, October 21, 2015 the Code was amended, judges have been required to advise all accused of this right, regardless of whether they are represented by counsel. The extension of this right to all accused was a positive step forward. The amendment undoubtedly increased awareness among the public and the legal profession of the existence of the right and led to a more just and equitable legal system for all accused, regardless of their official language.

I was also a strong supporter of Bill C-232, which sought to amend the Supreme

Court Act and require Supreme Court judges to be bilingual. The bill initiated a very public and divided debate. My stance on the issue is clear: I firmly believe that, for an institution as important as the Supreme Court of Canada, it is imperative that its judges not only possess exceptional legal expertise, but also reflect our Canadian values and identity as a bilingual and bijural nation. Lawyers and judges who aspire to sit on the bench of the highest court in the land must therefore have sufficient knowledge of both official languages to preside over proceedings or appeals without having to rely on an interpreter. It is a question of justice and equality.

In addition to my efforts before the courts and parliamentary committees,

I partnered with my provincial counterparts in New Brunswick and Ontario in 2013 to release a study called Access to Justice in Both Official Languages:

Improving the Bilingual Capacity of the Superior Court Judiciary.

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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. 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 integral to their sense of identity.

In reality, Canadians 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 to deal with additional costs and delays if they insist on being heard by bilingual judges.

I have already mentioned that, in criminal matters, all Canadians are entitled to a preliminary hearing and a trial in the official language of their choice. 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. These cases involve matters in the areas of family law, wills and estates law, contract and commercial law, and bankruptcy law.

Currently, the bilingual capacity of the superior courts is still a challenge in a

9 Access to justice in both official languages across Canada: Initiatives of the Commissioner of Official Languages – Notes for an address to the Bar of Montreal Montréal, Quebec, October 21, 2015 number of provinces and territories. Another challenge lies in the judges’ ability to maintain their language skills at a level high enough to preside over a hearing in their second official language.

What it is the situation 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. An on-line survey, conducted in October and November 2012 as part of our access to justice study, sought to learn about jurists’ perceptions of the bilingual capacity of superior courts. Of the 202 respondents, 75 practised in the province of

Quebec. Although the low number of respondents did not allow us to draw a complete picture for each province, we were able to identify Montréal—and, to a lesser degree, Laval, Longueuil and Québec City—as a city where it is easier to proceed in the minority language. However, this is not the case everywhere in

Quebec. And it most certainly isn’t the case in the other provinces, either.

One of the key findings of the study was that, in order for all Canadians to have access—at all times and without the additional barriers of cost and delay—to judges who have the proper 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.

10 Access to justice in both official languages across Canada: Initiatives of the Commissioner of Official Languages – Notes for an address to the Bar of Montreal Montréal, Quebec, October 21, 2015

Based on the consultations conducted with practising lawyers and judges as part of the study, it was determined that the judicial appointment process does not guarantee sufficient bilingual capacity among the judiciary to respect the language rights of Canadians at all times. This applies to every province, including Quebec.

The finding is based on three key 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 the superior courts to establish a process that would ensure that an appropriate number of bilingual judges are appointed 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 official language.

In light of these findings, the study outlines courses of action to improve the bilingual capacity of superior court judges. There are 10 recommendations in the study, and although they are addressed primarily to the federal Minister of

Justice, they cannot be implemented without the full participation of his provincial

11 Access to justice in both official languages across Canada: Initiatives of the Commissioner of Official Languages – Notes for an address to the Bar of Montreal Montréal, Quebec, October 21, 2015 and territorial counterparts, as well as the chief justices of the superior courts, the provincial bars and various other parties in the justice system.

The year 2017 marks an important milestone in Canada’s legal history: the

150th anniversary of judicial and legislative bilingualism in Quebec and at the federal level. Between now and then, I will continue pressuring the federal government to implement the recommendations in our study, which has received the support of the Canadian Bar Association. On our sesquicentennial, it will be important to highlight both the progress made in ensuring litigants’ right to be heard in the official language of their choice, and the fact that the laws governing them have the same value in both English and French. It is also important for

Canadian litigants and their lawyers to have greater access in both official languages to the body of case law developed by the Superior Court of Quebec and the Quebec Court of Appeal. Two of these important issues, legislative bilingualism and the translation of judgments, will be the subject of this afternoon’s panels. I look forward to listening to the panellists.

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