House of Commons CANADA Subcommittee on the process for appointment to the Federal Judiciary of the Standing Committee on Justice, Human Rights, Public Safety and Emergency Preparedness SMFJ Ï NUMBER 008 Ï 1st SESSION Ï 38th PARLIAMENT EVIDENCE Monday, November 14, 2005 Chair Mr. Richard Marceau All parliamentary publications are available on the ``Parliamentary Internet Parlementaire´´ at the following address: http://www.parl.gc.ca 1 Subcommittee on the process for appointment to the Federal Judiciary of the Standing Committee on Justice, Human Rights, Public Safety and Emergency Preparedness Monday, November 14, 2005 Ï (1535) At the time, Commissioner Goldbloom made 13 recommendations [Translation] to bring the federal government to remedy the situation. One of these recommendations called upon the Government of Canada to place The Chair (Mr. Richard Marceau (Charlesbourg—Haute- appropriate emphasis on language skills in selecting candidates for Saint-Charles, BQ)): Good morning and welcome to this eight judicial appointment. meeting of the Subcommittee on the Process for Appointment to the Federal Judiciary of the Standing Committee on Justice, Human In 2002, the Department of Justice made public a study that also Rights, Public Safety and Emergency Preparedness. I see that we found that members of official language minority communities faced have a quorum, so we may begin. certain barriers that prevented them from being heard in their own It is a pleasure to welcome someone who is well-known and lives language in Superior Court proceedings. Of these barriers, the part time in the Quebec City region, Ms. Dyane Adam, Commis- shortage of bilingual judges remains a recurring problem. Ten years sioner for Official Languages. She's accompanied by Ms. Johane after my predecessor made his recommendations, and several years Tremblay, Director, Legal Affairs Branch. after the Department of Justice study was published, I am sorry to say that, in practice, progress has been quite modest. While the Ms. Adam, you know how this committee works. We plan one Federal Court and Federal Court of Appeal now have sufficient hour for this meeting. The floor is yours. bilingual capacity, there is still a shortage of bilingual judges in Ms. Dyane Adam (Commissioner of Official Languages, Office provincial superior courts and courts of appeal. of the Commissioner of Official Languages): Thank you, In light of the federal government's constitutional and legislative Mr. Chairman. Ladies and gentlemen, members of the House of obligations, I strongly encourage you to recommend ways to modify Commons, I would like to thank you for giving me the opportunity the judicial appointment process in order to ensure the bilingual to speak to you today about a very important issue for official capacity of our superior courts and courts of appeal. language minority communities across the country, namely federal judicial appointments. [Translation] I would like to begin by providing a brief history of this issue, and I recognize the importance of ensuring that judicial candidates are to follow up by suggesting some possible solutions for your selected based primarily on professional skills and individual merit. consideration. I will be brief, as I want to leave as much time as However, as the Minister of Justice acknowledged during his possible for questions and answers. appearance last October 25th, merit must be evaluated in light of the [English] court's specific needs—which, in my opinion, implicitly include the need of each court to ensure that it has sufficient bilingual capability. As you are no doubt aware, the shortage of bilingual judges—that is, judges with adequate knowledge of English and French—is one I believe not only that a candidate's language skills should be of the main barriers to access to justice for some 2 million citizens given more weight, but also that the current process should be who are members of an official language minority community. This modified to enable the Minister of Justice to easily identify bilingual problem, which has been identified by my predecessor since the candidates on the lists of those who have been highly recommended early 1990s, still exists. That is why your initiative to review the and recommended. judicial appointment process and your recommendations could help to resolve this problem. The Honourable Irwin Cotler indicated, during his appearance, that he usually consults with the Chief Justice of the court that has In 1995, my predecessor published a study on the equitable use of the vacancy, to get a better understanding of the needs of that court. I English and French before the courts in Canada that concluded that congratulate the minister for the initiative shown in holding such the linguistic abilities of provincial superior courts and courts of consultations, but note that this practice is entirely discretionary. I appeal were unequal and insufficient. The report indicated that the believe that this consultation process should be formally incorpo- shortage of bilingual judges had an impact on access to justice in our rated into the judicial appointment process, to ensure that this two official languages, in both criminal and civil matters. practice continues. 2 SMFJ-08 November 14, 2005 Moreover, the Environmental Scan clearly shows that it is up to We're obviously looking at ways in which we can make the the federal government to demonstrate leadership in this area by appointment of judges in Canada better, and this is certainly helpful. recognizing the needs and shortcomings, with regard to bilingual My question is about proficiency. When it comes to a judge, judges capacity, of Superior Courts and Courts of Appeal responsible for are called upon to have an understanding of their subject matter at administering federal laws. the highest possible levels when it comes to interpretation, the minutiae, and the different ways a language can be used. So they Another way of identifying such needs would be to consult the have to be extremely proficient. I'm wondering what your definition official language minority community concerned or the lawyers' is of when someone would be eligible to be called bilingual—not association that represents the community's interests. bilingual by any standard of being able to go in and perform certain Another aspect of the current process that should be modified is tasks, but bilingual in terms of being able to have material put before the way in which advisory committees evaluate the language skills them, and it doesn't matter whether it's in one or the other official of candidates for judicial appointment. A candidate's language skills language, but they're still able to judge a case. could be evaluated in a number of different ways. As suggested by I'm trying to imagine someone with that kind of capability in both some of the individuals who appeared before you as part of this languages when the requirement is to be at the highest level of study, I believe the evaluation could, for example, take place during understanding. It's their job to interpret law, to apply law, to hear a private interview with the candidate, conducted by the advisory evidence. I would think that would be at the very highest level for committee. these individuals. Ï (1540) Ms. Dyane Adam: I would agree, and the legislation and the right [English] of citizens to be heard in front of courts in Canada is not only the right to be heard, but to be understood. So the onus is on the judge to Finally, allow me to suggest another possible solution to the be able to fully understand the case in front of him or her. problem of the bilingual capacity of the federal judiciary. I would ask this committee to recommend at the very least that the Department of So yes, and this is why I think the current system is really lacking. Justice adopt a policy committing the minister to replace all bilingual We have no means of assessing that level. Anyone could say yes, I judges who leave their positions with judges who are also bilingual. tick off bilingual, but in a way it's almost a leap of faith. The importance of adopting such a policy is illustrated in Ï (1545) situations that are unfortunately all too common. Cases in Welland Mr. Rob Moore: I guess that's my question on this. So many and Windsor, Ontario, are but two recent examples. In each of these factors go into selecting a judge, and some of them are ones we want cases, a bilingual Superior Court judge retired and was replaced by a to limit. We want to downplay political affiliation and so on and look unilingual anglophone. In effect, these appointments resulted in the at people on the basis of merit. Who is going to judge the capability loss of the court's bilingual capacity and a decline in access to justice of the judge? for members of the franco-Ontarian community in these regions. Say you have a minister of justice who is speaking to this judge, [Translation] or speaking to someone who knows the judge and says he or she can speak both official languages. What does that have to do with the Access to justice is the cornerstone of our judicial system. The ability to interpret the law, or even slang, or even ways that...? I insufficient bilingual capacity of provincial superior courts and would think it takes a lifetime of being immersed in one language or courts of appeal means that a significant segment of the Canadian another to know all the nuances of someone who is going to come in population is being denied the right of access to justice in the official off the street and give testimony on a witness stand, or of someone language of their choice.