Hon. Joan Fraser:

Honourable senators, first, I want to pay homage to all the senators who have spoken in this debate and those who I expect will speak in it. This bill is one of the great subjects that has brought careful reflection to all members of this chamber. I say sincerely that I have great respect for all the views that have been expressed. I know they are based upon serious reflection. However, I cannot say that I agree with all the different views that have been expressed.

This bill may need amendment. A number of senators have made thought-provoking comments about ways in which the bill might be amended. I think, for example, of Senator Banks' suggestion for a coming-into-force date to be set five years hence or, indeed, Senator Banks' comment about the incongruity between the English and French versions of the bill. Senator Comeau, I think, raised the point that perhaps this bill should also look at other pieces of legislation that should be addressed in this context. All these suggestions are worth serious consideration, and I hope that the committee will undertake that consideration. However, I believe, honourable senators, that the principle of this bill — and that is what we discuss at second reading — is profoundly right and profoundly Canadian.

I will address some of the vigorous mythology that has grown up around this bill. The first element of that mythology is that Bill C-232 will require all judges of the Supreme Court to be bilingual. The bill does not say that, nor does it require that. The bill says that in order to be appointed a judge of the Supreme Court, they have to understand French and English without the assistance of an interpreter.

Let me repeat that: understand French and English without the assistance of an interpreter.

There is a vast difference between being bilingual, which normally means being able to speak a language, and understand it. Any of us who has ever taken three hours of instruction in another language knows that it is far easier to understand and to read than it is to speak. All that is required under this bill is that judges understand the language. That is a far lower test than being bilingual.

Another myth is that the bill is not necessary because there is no problem at the Supreme Court now. We have been assured of that by, among others, former Justice Major, who does not speak both official languages. However, we have the testimony of at least two jurists on the public record that there is a problem now.

Michel Doucet, law professor at the Université de Moncton, and Sébastien Grammond, Dean of the University of Ottawa's Faculty of Law, have both said that they have noticed inaccuracies, missing information and poorly translated concepts in the interpretation at the Supreme Court of Canada. These issues affect the perceived logic of arguments presented by lawyers before the Supreme Court.

Obviously, if one does not know that there is an error in translation, one simply thinks that the lawyer has presented an illogical argument that is not overly convincing, which is not the goal of arguments to the Supreme Court of Canada.

I do not know how many honourable senators are aware of something the Standing Committee on Rules, Procedures and the Rights of Parliament found out when it was studying the matter of simultaneous interpretation into Inuktitut, when we looked at the matter of simultaneous interpretation in general. I am quoting from the relevant report of the Rules Committee. We were advised that:

Simultaneous interpretation only captures about 80 per cent of the original speech, on average.

Simultaneous interpretation misses, in other words, about 20 per cent of the original speech, on average. Frankly, honourable senators, I think that for someone to be pleading before the Supreme Court of Canada and to know that it is likely that 20 per cent of his or her argument will be missed is not in the greatest interests of justice.

Furthermore, as I understand it, all those documents that Senator McCoy spoke about so eloquently the other day that are submitted to the Supreme Court are not translated. They are circulated in the language in which they are submitted. If the justice does not speak the language of the documents, the justice's clerk provides a summary. A summary made by a clerk is not the same thing as being able to consult the documents directly oneself. Once the case has been heard, the draft decisions are written and discussed in English, because in practical terms, given the structure of the Supreme Court today, that is the only language that all the justices understand.

Honourable senators, if you are a francophone trying to write a judgment in English turning on fine points of law, you probably will be operating with one hand tied behind your back. It is rare for anyone to have such perfect command of two languages that they can write and argue as cogently and precisely in their second language as they can in their first language. A few people can, including Senator Tardif, Senator Comeau and Senator Fox. However, this command is rare. We are not asking for that command to be the criterion for Supreme Court justices; only that they be able to use their mother tongue when they speak or write to their colleagues.

Another problem is that justices who do not have the capacity to read or understand the other official language, mostly French, thus do not have the capacity to read or understand the rich body of jurisprudence and commentary that exists in French in Canada.

Let me address another myth, which is that somehow this bill is concerned only with Quebec and civil law. The commentary and jurisprudence that is written in French has to do with Canadian law, not only civil law but all Canadian law — constitutional law, criminal law, all Canadian law. If we cut ourselves off from 25 per cent of the legal reasoning of this country, I submit that we are not in the best position to deliver true justice.

We know, of course, that cases come from other provinces than Quebec that are argued before the Supreme Court in French. Indeed, Maître Doucet, whom I quoted, is from New Brunswick. Even the cases from Quebec are not all concerned with civil law and, therefore, the province of the three judges who, by law, represent Quebec on the Supreme Court of Canada.

Honourable senators may be interested to know that of the judgments the Supreme Court rendered in 2007, 2008, and 2009, 34 concerned cases coming from Quebec, excluding cases from the Federal Court of Canada, only 13 pertained to civil law and 21 pertained to federal law, constitutional law, or international law, having nothing to do with civil law. There were, of course, other cases in those three years, namely 12, where the Attorney General of Quebec intervened — and, of course, the Attorney General of Quebec intervenes before the Supreme Court of Canada in French.

Honourable senators, it has been suggested that requiring the ability to understand both languages would mean that we chose Supreme Court justices from too small a pool of talent. I do not think that is necessarily true, even in the West. It may have been true in the past, but I am not so sure that it is true today, and I am sure that it will not be true in the future.

Honourable senators should think of Calgary. How many times have we heard the wonderful news about the great number of students in Calgary who went to immersion classes? That was not true when we were all young, but it has been true for a generation now.

Judges already hear cases in French in every province and territory of this land, and I believe that anyone who seriously wants to be a judge of the Supreme Court of Canada is capable of learning French. French can be learned, honourable senators. It is not an arcane, mysterious something to which only a chosen few have access. It can be learned, particularly when what we are talking about is command of a specific technical vocabulary. We are not asking that justices of the Supreme Court be able to able to change diapers in French or buy their breakfast grapefruit; we are asking them to understand the law.

A number of years ago, I heard an interesting interview with a language teacher here in Ottawa who was asked, "Who are your best students?" The answer was, "Judges are the best students. Because judges are already so trained in precision of language and in the grasping of specific vocabulary, they are my best students."

Senator Segal raised the interesting question of who would test judges to be sure that their understanding of the other official language at the Supreme Court was sufficient. Well, the same people who test the other judges who are already required to demonstrate understanding of the other official language; the same people who test the senior civil servants of whom we demand that they have not just the ability to understand, but the ability to use both official languages.

There seems to be some sense that it would be beneath the dignity of Supreme Court judges to face any such inquiry into their capacity. However, in order to be a lawyer considered for the Supreme Court of Canada, one must have already demonstrated to impartial examiners one's competence in many different fields. The key point is that there is no divine right to be a justice of the Supreme Court of Canada. These are not beings on a higher plane than the rest of us. These are, in the most fundamental sense of the word, public servants. They have the privilege of being perhaps the most important public servants in the land, but they are there to serve us, not the other way around.

We have already recognized in law the principle that judges should be able to understand the proceedings before them without an interpreter. We did that a generation ago — that is, about 22 years ago — in section 16 of the Official Languages Act which uses the same language as this bill. It says that every judge should be able to understand English or French, as the case may be — that is, the language of the proceedings — without the assistance of an interpreter. I would draw the attention of honourable senators to the fact that this section of the Official Languages Act covers all federal courts, including the Federal Court of Appeal. For me, it is not a persuasive argument to say that because the Supreme Court of Canada is an appeal court, it does not need to have the same linguistic capacities as other courts. I would argue the reverse, in fact.

Yesterday, Senator Comeau made the important distinction between institutional and individual bilingualism. However, for institutional bilingualism to exist, certain key individuals must be individually bilingual themselves. In the Supreme Court of Canada, I submit that that means that all judges must be able to understand both languages, because there are cases where we need all those justices to sit, to hear, and to decide. Some cases are too important to be decided by less than the full court. For the

sake of argument, I would cite the references on patriation of the Constitution and on Quebec's secession.

This is one reason I cannot agree with Senator Carignan's impressively reasoned arguments that the bill before us would be unconstitutional in relation to section 133 of what we used to call the British North America Act.

If it is not unconstitutional to say that the Supreme Court must have this capacity, why is it constitutional to say that the Federal Court of Appeal must have it? More specifically, section 133 enshrines the right of any person to use either the French or the English language in any court of Canada or in any court of Quebec — and, I repeat the word "use." Honourable senators, I submit to you that that means any person may speak either language. There have been arguments that the right to speak does not necessarily include the right to be understood, but I would suggest to you that in the case of the Supreme Court of Canada, it must mean the right to be understood.

Some people have argued that we trust interpreters here in Parliament, in the Senate, for example, so why do not we trust them at the Supreme Court of Canada? There are vital differences. To use a word that Senator Nolin used yesterday, we in Parliament have layers and layers of redundancy. We have 105 members. We have, in most cases, almost unlimited debate, at second reading, in committee, at third reading, and, if we still do not get it right, if we have been the first house to consider a bill, it then goes through the same process all over again in the House of Commons. There are many opportunities for any misunderstandings or imprecisions to be addressed. If we still get it wrong, there then lies an appeal to the court. However, the Supreme Court of Canada is where we go to have those imprecisions elucidated for us. They are the last safety net. We have to require of them that they are capable of understanding all the necessary arguments and law.

Honourable senators, this bill may need amendment, but I submit to you that its principle is profoundly Canadian, profoundly faithful to what this country represents, stands for and believes in, and I urge you to support it.

Please click here to read the full text of this debate

Recent Statements from Liberal Senators