Statement made on 27 April 2010 by Senator Maria Chaput
Hon. Maria Chaput:
Honourable senators, I rise today to express my unreserved support for Bill C-232, An Act to amend the Supreme Court Act (understanding the official languages).
First of all, I must congratulate Mr. Godin, member of Parliament for Acadie—Bathurst, for all the hard work that he put into getting his bill passed, finally, in the other place.
After listening to Senator Tardif's eloquent remarks on the subject, I am more convinced than ever that passage of this bill is a necessity. It fits so easily and naturally into our country's history, as our honourable colleague has so ably demonstrated.
Bill C-232 is simple and straightforward. If it is passed, it will guarantee that justices appointed to our country's highest court understand French and English without the assistance of an interpreter. This is a major step toward full recognition of the equality of status of our two official languages.
It is scarcely necessary to remind my honourable colleagues, assembled here in this noble chamber, that our Constitution says clearly and unequivocally that French and English "have equality of status and equal rights and privileges as to their use in all institutions of the Parliament and government of Canada."
Our Constitution also provides that real equality between English and French must be advanced, and that Parliament has the powers necessary to do so. We are still far from the laudable goal of true equality. The passage of Bill C-232 would constitute a giant step toward this ideal that we have set for ourselves.
The justices on Canada's Supreme Court are called upon to hear cases in both official languages and to apply the principles of law arising from our two great and separate legal traditions. The court's decisions are final and without appeal, and their consequences are often of the utmost importance.
How would one explain to a francophone appearing before the court that his or her case was going to be heard by justices who did not understand his or her chosen official language? What if an English-speaking Canadian were required to plead before justices who spoke nothing but French? It seems obvious to me that the second situation would be just as unacceptable as the first one.
Bill C-232 is designed to keep us heading in the right direction. It is based upon the principles of natural justice. The right to be heard constitutes the cornerstone of our justice system. How can someone really be heard if he cannot really be understood?
The Department of Justice explains in one of its publications that:
. . . because of the official bilingualism within the federal jurisdiction and the coexistence of two legal systems in the country, there are four audiences for the law in Canada . . . anglophones and francophones subject to the civil law, on the one hand, and anglophones and francophones subject to the common law, on the other hand.
The nine justices who sit on our country's highest court should at least be able to understand, without an interpreter, counsel from all of these four audiences. In my view, this is the bare minimum.
Let us be very clear: The bill we are discussing does not aim to impose on our future Supreme Court justices a requirement that they speak both official languages fluently. Perfect bilingualism is not the criteria. What is demanded is the ability to understand the other language without an interpreter. This is a distinction worth making.
In a decision by the Manitoba Court of Appeal in 1984, quoted by the Supreme Court of Canada and dealing with the language skills required for a judge to hear a case, Chief Justice Monnin explained that knowledge of a language has four levels: understanding of the written language, understanding of the spoken language, ability to speak the language, and ability to write the language.
According to Chief Justice Monnin, it is not necessary for judges to achieve the third or fourth levels, but it is indispensable that they understand the language, and I quote:
No burden must be put upon those who ask for a trial in French nor should the evidence of witnesses using one or the other of the two constitutionally recognized languages have to be sifted for the trier of facts through the mind and mouth of an interpreter.
This reasoning applies even more strongly when a matter is before the court of last resort, the highest court in the land.
The Canadian Charter of Rights and Freedoms provides that the English and French versions of Canada's statutes "are equally authoritative." This means that there is not one version that takes precedence over the other; there is not an original and a translation; but rather there is just one law, drafted in English and in French, which must be interpreted on the basis of Canadian bilingualism and bijuralism.
Both language versions of Canadian statutes "are equally authoritative." A diligent judge will thus, in order to fully understand the significance of certain provisions, have to read both the French and the English versions, because the two form a single whole.
The two versions of a law may complement each other or clash with each other; in a way, the two versions are a dialogue. An understanding of both of Canada's official languages is thus a sine qua non for a full understanding of the country's laws.
This "equal authenticity rule" applicable to federal legislative texts was formulated by the Supreme Court for the first time in 1891, in C.P.R. v. Robinson, and I quote:
In the case of ambiguity, where there is any possibility to reconcile the two, one must be interpreted by the other. The English version cannot be read out of the law. It was submitted to the legislature, enacted and sanctioned simultaneously with the French one, and is law just as much as the French one.
It was confirmed by the Quebec Court of Appeal that "Canadian courts have not only the right but also the obligation to take into account both official texts and use them to interpret each other." The same obligation is incumbent upon our court of final instance, and with still more reason.
Graham Fraser, the Commissioner of Official Languages, said recently:
. . . when someone comes forward and says . . . about a candidate [for the Supreme Court], that he is very competent, that he has all of this experience, but he doesn't have the ability to hear a case that's presented before the Supreme Court in the language in which that case is presented, then he is missing a critical competence.
Honourable senators, today's edition, that of Tuesday, April 27, 2010, of Le Devoir, contains an article bearing the headline: "Supreme Court — Judges must be bilingual, says Claire L'Heureux-Dubé." The article states, and I quote:
Former Supreme Court of Canada Justice Claire L'Heureux-Dubé believes that it is time for bilingualism to become part of the selection criteria when appointing judges to the country's highest court. In other words, the retired judge fully supports the NDP bill currently before the Senate.
"I believe that Supreme Court judges should definitely be bilingual," Madam Justice L'Heureux-Dubé explained to Le Devoir. According to her, "the bilingualism legislation that allows an exemption for Supreme Court judges is an anomaly in 2010, one that must be eliminated sooner or later."
In response to the argument made by Minister Christian Paradis, who explained to Le Devoir that he opposes Bill C-232 in the name of protecting unilingual francophones who should also be able to aspire to sit on the Supreme Court, Madam Justice L'Heureux-Dubé replied, and I quote:
I do not understand how a unilingual francophone judge could sit on the Supreme Court of Canada where 90 per cent of the work is in English. And I cannot recall a unilingual francophone judge ever sitting on the Supreme Court. On the other hand, many unilingual anglophone judges have been appointed to the Supreme Court . . . Is this not a double standard?
As Senator Tardif put it so well, the Supreme Court was not established to meet the needs of judges but to serve the citizens of this country. Canadians have the right to expect to receive services of equal quality in the official language of their choice when they appeal to the highest court in Canada. That is the bare minimum we should aim for.
I urge you, honourable senators, to support Bill C-232.