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The Hon. Grant  Mitchell, B.A., M.A., C.F.A. Senator Grant Mitchell has had careers in the public service, business and politics in Alberta. He was appointed by former Prime Minister Paul Martin in March, 2005.

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Supreme Court Act

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Statement made on 22 June 2010 by Senator Fernand Robichaud

Hon. Fernand Robichaud:

Honourable senators, today I will be speaking in support of Bill C-232, in the belief that we need to support this bill in 2010 in order to take another step towards equality and equity in the use of our country's official languages.

I am always surprised when some people say they are tired of hearing about this bill, which would allow those pleading their case before the Supreme Court to be heard and understood by the justices without the assistance of an interpreter. That is the scope of this bill.

We cannot forget that this issue was discussed at length in 1988 as part of the studies surrounding the adoption of Bill C-72, which made significant amendments to the Official Languages Act.

The honourable senators in this chamber will not be convinced of this bill's merits by reason alone. I think that we also need to appeal to the same sense of justice and generosity shown by those who succeeded in having Bill C-72 debated and adopted in 1988.

When rereading the debates from this chamber and the other place, as well as the committee reports, it is clear that the Progressive Conservative government of the time showed a great deal of generosity as well as steadfast courage in defending and adopting these amendments to the Official Languages Act.

Generosity, courage in the face of adversity and tolerance are intrinsically Canadian characteristics.

In 1988, the justice minister who sponsored the bill, Ramon Hnatyshyn, said:

This bill reflects Canadians' openness and tolerance with respect to language and culture. One of the most cherished characteristics of our national identity is our generosity to one another.

While talking about official languages and the Supreme Court, Mr. Hnatyshyn said:

. . . those who observe the workings of the Supreme Court will say that someday — I think we will get there in time — all Supreme Court justices will have to be bilingual.

He went even further, suggesting that they needed to do more than understand:

This is not about being able to converse in both languages. This is about really knowing the legal terminology in order to understand the arguments and the principles.

On July 20, 1988, Mr. Hnatyshyn said:

Just think of the progress we have made in this area in the past 10 years. Just imagine how things will be in 20 years.

That is what he said just 22 years ago. The Honourable Senator Lowell Murray, then government leader in the Senate, also stated that the C-72 amendments would, among other things, "advance the equality of status and use of English and French."

To my mind, this means that the equality of status and use of English and French had not yet been achieved, but was in progress.

In addition, during an appearance before the committee in 1988, and in response to a question from MP Jean-Robert Gauthier on the exclusion of the Supreme Court from the provisions of Bill C-72, Yvon Fontaine, the president of the Fédération des francophones hors Québec — known as the association at the time — and dean of the Université de Moncton's law school, a guy from my parish, from my town of Saint-Louis, who is now the university rector, said:

We believe that no court should be excluded, including the Supreme Court of Canada.

More recently, former Supreme Court Justice Claire L'Heureux-Dubé stated last April in an interview for the newspaper Le Devoir:

I believe that Supreme Court judges must be bilingual. The bilingualism legislation creating an exemption for Supreme Court judges is an anomaly in 2010, and should have been eliminated a long time ago.

Therefore, some legal experts find it completely logical, appropriate and fair that Supreme Court judges must understand the language of a litigant without the assistance of an interpreter.

In fact, the objective of Bill C-232 is not a recent concern and 22 years later we are still debating whether Supreme Court judges should be required to understand the other official language without the assistance of an interpreter.

Honourable senators, we must realize that the bill is a logical step, a progression toward greater justice and equality in the use of the official languages in the Supreme Court of Canada.

This bill will allow those who plead cases in the court to be heard and understood by the justices without the assistance of an interpreter.

It also means that the justices of the highest court in the land will have to have sufficient knowledge of the other language to understand the pleadings and the nuances of the arguments.

I do not need to repeat all the arguments in favour of this bill, as they have already been eloquently presented.

However, I believe it is necessary to make the intention of the bill perfectly clear and to make a few comments in that regard.

Contrary to what Senator Carignan suggested in his speech, in my opinion, Supreme Court judges will retain their right to express themselves in the language of their choice.

Nothing in this bill eliminates the right of Supreme Court judges to choose which language they will use to express themselves. That is not the intention.

The judges of the court must have the ability to understand both official languages without the assistance of an interpreter. That is all.

Evaluation of the linguistic proficiency of judicial applicants was raised and in that regard I must say, as we all know, the federal administration has been assessing that qualification for other federal courts since 1988. It does not seem to pose a major problem.

Let us ask ourselves just one question: in a country that has chosen to have two official languages, is it too much to ask that Supreme Court judges be able to understand the other official language? Some say yes, others say no, and still others are unsure.

I firmly reply that it is not too much to ask.

Some senators feel that legislation is not always the best way to solve such a problem. To that argument I would simply reply that sometimes, although it may not be ideal, legislation is the only solution.

Consider the context in which the Official Languages Act was passed in 1969. The bureaucracy of Canada operated entirely in English. The main idea was to allow French-speaking Canadians to be able to deal with federal institutions in the language of their choice and to receive services in their mother tongue. At the time, the Official Languages Act was needed in order to guarantee the rights of French-speaking Canadians and to maintain consistency across the country. As we know, the act was amended in 1988. The 1988 amendments to the Official Languages Act brought about by Bill C-72 incorporated linguistic duality into Canada's institutions, promoted the development of Canada's official language minority communities and guaranteed equality of status and equal rights and privileges as to their use in all federal institutions.

An entire section dealt with the administration of justice. The amendments required the courts to ensure that any person could be heard in the official language of his or her choice and, when required, to provide simultaneous interpretation into the other language. Judges had to listen to and understand the French or English without the assistance of an interpreter. However, judges of the Supreme Court of Canada were exempt.

At the time, there were long discussions in committee about an amendment to include the Supreme Court in the provisions of this bill. In 1988, the government authorities believed that it was best to wait and not move too quickly. It was best not to add constraints on the Supreme Court's operations at that time.

It is understandable that this step would have to be taken eventually. Although it may have been considered too difficult to require judges to understand the pleadings without an interpreter, it seems to me that an inability to understand without an interpreter must also create difficulties in the operations of the court.

When Bill C-72 was being studied in the other place, I was an MP and I participated in the debates. This is what I had to say about Bill C-72. It is rather odd to be quoting myself, but I will risk it:

Yet, there is a deficiency in this bill in view of the fact that the Supreme Court will be excluded. When we deal with this bill in committee, Madam Speaker, we will have to see whether these provisions could not apply also to the Supreme Court.

I would like to point out that the woman I addressed was the honourable Senator Champagne, who was the Deputy Speaker of the House of Commons.

When I participated in the debates on Bill C-72 in 1988, the hon. Senator Champagne was in the chair and I voted — of course, I was a member of the Liberal Party — with the Progressive Conservative members, including Ms. Champagne, Mr. Campeau, Mr. St. Germain and Ms. Fortin-Duplessis who, at that time, sat in the other place.

Senator Champagne: We are not getting any younger.

Senator Robichaud: Exactly, time is marching on and I believe, Madam Senator, that we must take action. Today, it is time to take action, especially since it was clearly understood at that juncture that the time would come to do so. The time has come to take action. After four decades, one would have thought that bilingualism would be accepted and implemented in all federal institutions. Unfortunately, that is not the case.

The members of the Standing Senate Committee on Official Languages know what I am talking about, and you also know the difficulties and hurdles that have to be overcome day after day, month after month, year after year, to ensure that bilingualism is respected in this country. It is a never-ending fight to ensure the rights of French-speaking people in this country. In an ideal world, the government would present measures similar to the one that is before us to help advance the equality of official languages within our justice system.

But that is not the case. It is the same every time — once again, we have to set out on another long journey to have our linguistic rights respected. I think that it is important to understand that justices do not need to be perfectly bilingual but, rather, they need to know legal terminology and understand the legal principles and arguments without the help of an interpreter.

I am aware that there is still a lot of sensitivity about the question of bilingualism in Canada today. Those who are opposed to this bill have rehashed the same concerns and arguments. The objections raised seem to me to be similar to those raised in 1969 and 1988. This hesitation and concern that we are seeing is the same each time we try to make the Official Languages Act fairer and more equal.

Could I request an extension of my time, honourable senators?

I think that Bill C-232 is the next logical step in this trend towards greater equality and more justice in our country's legal institutions. Yes, it is a question of equality, but it is especially a question of common sense. If judges in a number of courts are already required to understand both languages, why would we not expect the same of the judges of the highest court of the country?

As Senator Rivest so eloquently said, when speaking about the Supreme Court:

. . .I would find it hard to understand, precisely because it is one of our country's most important institutions, if linguistic duality were not fully realized there. It would be ridiculous, or at least peculiar, if we said that the Supreme Court of Canada is such an important institution that there is no need for those seated on its bench to know both of the country's official languages. This would be complete nonsense.

For those of you who think this bill raises some issues that are insurmountable, I will share with you this quote from the Commissioner of Official Languages, Graham Fraser. He blew the argument that it is impossible to find bilingual candidates in western Canada right out of the water when he said:

It is worth noting that Chief Justice Beverley McLachlin was born and raised in Pincher Creek, Alta.; studied at the University of Alberta; practised in Edmonton, Fort St. John and Vancouver; taught at the University of British Columbia; and served as a judge in British Columbia. Yet she, and seven others of the nine Supreme Court judges, can hear cases both in English and French.

Eight of the nine justices now serving on the Supreme Court are able to hear pleadings in both languages. Why ignore Canada's linguistic duality when appointing judges to the Supreme Court? With some political will, a government can find brilliant people in every region of the country to sit on the Supreme Court; competent people who can understand the litigant's own voice rather than through the voice of an interpreter.

I also think that by making bilingualism a requirement to sit on the Supreme Court, we are sending a clear message to the legal community across the land about the importance and equality of both our official languages. Whenever it is possible to achieve greater equality and fairness, our leadership must take the necessary measures to do so.

Honourable senators, in the most non-partisan spirit, I urge you to support Bill C-232.

Parliamentarians have always had the ability to rise above partisanship to address the language issue.

When the Leader of the Government in the Senate asked senators to adopt Bill C-72 in 1988, Senator Murray used these terms:

That is essentially what I am asking honourable senators today: to take another step forward in respecting the commitment made by the federal government with regard to official languages.

He went on to say:

The bill before us takes us further down the path that the Fathers of Confederation laid out for us, a path if followed properly traces out the principles of justice, tolerance and respect for our fellow citizens.

That is not unlike what is happening today. We can take a step forward in the spirit of the Fathers of Confederation.

For those who often say that we must respect the will of the elected members of the other place, now is our chance to do so.

With a non-partisan attitude, an open mind and in a spirit of generosity, we can, by passing Bill C-232, show leadership and demonstrate full support for our French-speaking citizens.


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