C-232: Senators Nolin (CPC) & Robichaud on Substance, Tardif on Process

Business of the Senate

Hon. Claudette Tardif (Deputy Leader of the Opposition): Honourable senators, I have a question for Senator Comeau. Bill C-232 has been before the Senate since April 13, for 70 days now. A number of senators on both sides of the chamber have spoken eloquently as part of this debate. The Leader of the Government in the Senate even said, in a La Presse article on May 21, 2010, that she thought Bill C-232 should be sent to committee, and I quote, "probably before the summer."
Could Senator Comeau tell us when the government plans on moving forward with this bill, especially since it was passed by a majority of parliamentarians in the other place?

Supreme Court Act

Bill to Amend—Second Reading—Debate Continued

On the Order:

Resuming debate on the motion of the Honourable Senator Tardif, seconded by the Honourable Senator Rivest, for the second reading of Bill C-232, An Act to amend the Supreme Court Act (understanding the official languages).

Hon. Pierre Claude Nolin: Honourable senators, I am very excited to have this opportunity to speak to Bill C-232 today.
At the outset, I want to say how impressed I am by the quality of the debates that have taken place with respect to this bill. Clearly this house can be reasonable, effective and thorough in holding productive debates in the interest of all Canadians.
I particularly admired Senator Carignan's speech. Unfortunately, I do not have 45 minutes, as he did, so I will be much briefer. Nevertheless, I want to pick up on some of the main points of his speech.
First, he provided a lot of specifics in his discussion of Supreme Court decisions relating to section 133 of the Constitution Act, 1867, as well as sections 16 and on of the Charter of Rights and Freedoms.
In reviewing the text of his speech, and to adequately prepare myself, I sought out an expert whose knowledge of the subject, while perhaps not as great as Senator Carignan's, specifically encompassed the evolution of case law in this area. I found Warren J. Newman's 2002 paper entitled La progression vers l'égalité des droits linguistiques par voie législative et judiciaire. This paper on language rights equality was presented at an Ontario Bar Association conference on the Charter of Rights and Freedoms.
Mr. Newman has been with Justice Canada since 1985. He was senior counsel or assistant counsel for the Attorney General of Canada in the following cases: Bilodeau, the Reference re Manitoba Language Rights in 1984 and 1992, the Reference re Public Schools Act (Man.), the Reference re Secession of Quebec, Arsenault Cameron and Montfort, among others. Given the number of cases he has been involved in, his opinion seems valid to me.
Senator Carignan based part of his argument on a decision, or rather three Supreme Court of Canada decisions, dating back to 1986. In the jargon of language cases, we call them the "1986 trilogy." The trilogy is made up of three Supreme Court decisions: Bilodeau, MacDonald and Société des Acadiens.
Without going into detail, observers later described these three decisions as "restrictive." Some even said they represented a setback compared to Supreme Court decisions such as the ones in the Blaikie cases, which had come in the wake of the passing of Bill 101 in Quebec.
In this trilogy — and Newman says this — the guarantees in section 133 could almost be described as "narrow and minimal," when one uses the ruling by Justice Beetz, who spoke on behalf of the majority of the court, because Chief Justice Dickson and Justice Wilson dissented in this ruling. That may be why observers talked about a setback. I would even say, honourable senators, that they talked about a perhaps slightly pedestrian analysis of the evolution of case law and language rights in Canada, but that word is mine and certainly does not reflect the opinion of Mr. Newman, who was more respectful of the late Justice Beetz's decisions.
I would like to quote part of what Mr. Newman wrote:

The late Mr. Justice Beetz, speaking on behalf of the majority in MacDonald, ruled that section 133 of the Constitution Act, 1867, included only a narrow, minimal guarantee regarding the use of French and English before the courts, a right that imposed no correlative duty on the state to accommodate the individual's choice of official language. According to Justice Beetz, section 133 is a constitutional minimum that could be complemented by federal and provincial legislation. But it was not open to the courts, under the guise of judicial interpretation, to improve upon the constitutional guarantees with respect to language rights.

In Société des Acadiens, referring specifically to subsection 16(3) of the Charter of Rights and Freedoms, which substantively repeats section 133 of the Constitution Act, 1867, Justice Beetz ruled that — as Newman put it:

While "language rights belong to the category of fundamental rights", these rights "are based on political compromise", unlike the legal rights in the Charter, which "tend to be seminal in nature because they are rooted in principle.

You will understand, honourable senators, that the Supreme Court had made an important point. That was in 1986. In the years that followed, the Supreme Court made an effort to distance itself from this trilogy. As I have little time left, I will skip over some decisions and talk about the Reference re Secession of Quebec. In a major decision in 1998 with respect to a reference by the federal government, the Supreme Court ruled on the secession of Quebec and on the rights of the parties in this potential unilateral action by the Government of Quebec. I quote Newman:

In the Reference re Secession of Quebec, the Supreme Court of Canada identified four fundamental principles applicable to the issues submitted to the Court, including the principle of the protection of minorities.

This very important principle underlies the whole Canadian constitutional framework. And Newman retained this principle, as it was used again later in a very well-known Supreme Court case, the 1999 Beaulac ruling, the year after the Reference re Secession of Quebec.
I again quote Newman:

"Existing" language rights must be applied based on the "true meaning" of the principle of equality, that is, "substantive equality," which becomes the "correct norm to apply". Institutional bilingualism in the courts "refers to equal access to services of equal quality for members of both official language communities in Canada."

Newman was referring to paragraph 22 of the Beaulac ruling. Justice Bastarache, writing on behalf of the majority in Beaulac, wanted to ensure that all analysts and readers of his decision would note the distinction the Supreme Court decided to make with respect to the 1986 trilogy and therefore stated the following:

. . . [l]anguage rights must in all cases . . .

He went to the trouble of emphasizing that it means in all cases.

. . . be interpreted purposively, in a manner consistent with the preservation and development of official language communities in Canada . . . To the extent that Société des Acadiens du Nouveau-Brunswick, supra, stands for a restrictive interpretation of language rights, it is to be rejected.

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I would now like to talk about Mr. Newman's conclusions, which are very interesting:

If there is a leitmotif in Canadian case law regarding the interpretation and application of language rights, it is the desire of the courts to protect and promote the concept of equality between French and English, which respects the legal, constitutional and legislative framework, the history of the country, the demographic realities, the vulnerability of minorities and the remedial role these rights play.

As Justice Betz and Justice Bastarache encouraged us to do, let us take a quick look at that political compromise that led to section 133.
Between 1841 and 1861, the demographics of Canada saw a shift in plurality. I will repeat, because I want to be sure that you all understand. In 1841, there were 650,000 people in Canada East, Quebec, Lower Canada. In Canada West, Ontario, there were 450,000 people. Over the following 20 years, between 1841 and 1861, there was a shift in that plurality.
In the Act of Union, which preceded the Constitution Act we are all familiar with, the two united Canadas had parity. In other words, there were as many members of Parliament from Ontario as there were from Quebec. Unfortunately, that led to some instability.
Take, for example, the period from 1854 to 1864, when 10 successive governments were formed and there was political instability and demographic change. In 1864, for obvious reasons, the leader of a political party in Ontario, George Brown, started calling for proportional representation. He proposed a coalition to John A. MacDonald and George-Étienne Cartier, who accepted. The only condition Brown set was that there be a new Constitution based on a more equal sharing of jurisdictions. Cartier accepted that condition.
Today it seems irrefragable that in 1864, George-Étienne Cartier never would have accepted the coalition with MacDonald and Brown had it not been for his strong conviction and his plan to obtain better representation for Lower Canada in Parliament in the new Canada, as well as recognition of the language rights of French Canadians. This political compromise would later give rise to Canada and a true synallagmatic partnership.
In one of his truculent allegories, Senator Segal was right to remind us of the importance of the great Canadian compromise, given that many historians, especially francophone historians — and secessionists at that, unfortunately — have only nasty things to say when we should be talking about how vitally important this is to building our Constitution.
I would like to read what is written in clause 1 of Bill C-232, which proposes amending section 5 of the Supreme Court Act. Subsection 2 states:

In addition, any person referred to in subsection (1) may be appointed a judge who understands French and English without the assistance of an interpreter.

So what does this clause propose?
First of all, it proposes the principle of an additional qualification, the linguistic qualification of understanding English and French, and prohibits the assistance of an interpreter.
Honourable senators, my 15 minutes have expired and I would like to request another five minutes.
The Hon. the Speaker: Is leave granted, honourable senators?
Hon. Senators: Agreed.
Senator Nolin: Honourable senators, I think we need to accept the principle that Supreme Court judges should understand both official languages, as required in Bill C-232.
Instead of amending the Supreme Court Act, I believe that subsection 16(1) of the Official Languages Act should be amended. The committee that studies the bill should be asked to assess the possibility of abandoning the Supreme Court amendment and transferring it to the Official Languages Act.
The reference to the absence of interpretation also needs to be eliminated, given that even people who understand both languages very well sometimes rely on the services of an interpreter, and I do not see any point in prohibiting this practice. Only the principle should be maintained.
One other principle needs to be kept in mind as the committee examines Bill C-232. I will once again refer to something Senator Segal said.
The laws we create are not meant to cause chaos. That is not our goal. We must accept the principles that come out of all the evolving case law that the Supreme Court gives us. As we know, the Supreme Court shifts the responsibility of advancing the equality of French and English onto Parliament, as subsection 16(3) of the Charter of Rights and Freedoms states.
We have to accept that there will be a transition period. Senator Champagne made reference to that in her speech, and it will be up to the official languages committee to decide, after hearing testimony from representatives of the various bar associations, whether the period will be 5, 10 or 15 years. The most important thing is to accept the principle that Supreme Court justices understand both languages.
Then we shall see whether we want the principle to apply in 15 years. We have to have a transition period, and the committee must decide how long that period will be in order to avoid the chaos to which Senator Segal was referring.
Why am I making these recommendations? First, I want to make things clear. We are not talking about bilingualism in the bill. We are talking about understanding. There is a very important difference. Ask public servants who have their language skills assessed and they will tell you there is a difference between category A, "bilingual," and category B, "understanding."
Second, I believe that the case law is clear despite the fact that I summed up Mr. Newman's paper too quickly. I could have taken a paper by Claude Ryan, who did an extraordinary study on the matter, but I do not have enough time.
Third, I think we have to accept the principle of protection of minorities that the Supreme Court refers to in the Reference re Secession of Quebec. And if you do not accept the principle of advancement, I submit that section 133 talks about "pleading." What does pleading mean?
I consulted Le Petit Robert to find that "plaider" means "to defend with justifications or excuses." As you can see, pleading is not just about talking, but also about being understood.
In closing, for the past decade or so we have been passing legislation that accepts the principle of bijuralism. We are now asking that legislation respect both English and French and also the principles of common law and civil law, all in the same legal document.
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I would like all Supreme Court justices — not just the three justices from Quebec, but all Supreme Court justices — to understand the importance of bijuralism.
My apologies to the interpreters but, through no fault of their own and without them having known it, in my 20-minute speech I used some words that honourable senators may not have heard correctly interpreted. One of those French words was synallagmatique — "synallagmatic" or "reciprocal" in English. I would be surprised if that were the word chosen. I also used the word irréfragable, which may be "irrefragable" or "indisputable" in English. And when I spoke about Senator Segal, I spoke of his "truculent allegory." I was not talking about a truck or a lorry; I was referring to the vehemence he displays. I hope that those who were listening to me in English were able to understand what I was trying to say. That is the problem. That is why we must have nine judges who understand both of Canada's official languages, whether or not they are fully bilingual.
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.
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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?
The Hon. the Speaker: Is leave granted, honourable senators?
Hon. Senators: Agreed.
Senator Robichaud: Thank you, 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:
[English]

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.

[Translation]
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.
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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.