Ottawa, November 28, 2007
Notes for an appearance before the
Senate Standing Committee on Legal and Constitutional Affairs
Graham Fraser – Commissioner of Official Languages
Check against delivery
Madam Chair, Ladies and Gentlemen of the Committee,
Thank you for giving me the opportunity to appear today to comment on Bill C-13, more specifically the proposed amendments to sections 530 and 530.1 of the Criminal Code. As stated by the Supreme Court of Canada in Beaulac, the purpose of these provisions is “to provide equal access to the courts to accused persons speaking one of the official languages of Canada in order to assist official language minorities in preserving their cultural identity”.
For quite some time, the Commissioner’s office has identified the need to amend these provisions. In 1995, the Office of the Commissioner conducted a study on the equitable use of English and French before the Courts in Canada. It recommended certain changes to sections 530 and 530.1 of the Criminal Code, namely in terms of the obligation to inform the accused of their language rights.
When Bill C-23, which preceded Bill C-13, was introduced, I was in favour of the proposed amendments to sections 530 and 530.1 because they took into account some of the recommendations made by the Office of the Commissioner and the case law. This is the case with section 18 of the bill that amends subsection 530(3) of the Criminal Code to impose on justices of the peace or provincial court judges the obligation to ensure that the accused is advised of his or her right to a trial in the official language of choice. Currently, the accused is only informed of this right if unrepresented by counsel. Such an amendment represents without question a positive step forward.
When I appeared before the House of Commons Standing Committee on Justice and Human Rights on May 3, I proposed two changes to Bill C-23 regarding the language of information and ordering a bilingual trial.
In regards to the language of the information, I was pleased to see that section 19 of the Bill recognizes the accused’s right to receive a translation of the information or indictment against him or her. This is a positive step in the direction set out by the courts. However, I would have liked the accused to have been able to obtain a translation of the information without filing an application to do so. I understand that the amendment we proposed was not accepted because it would have required the agreement of the provinces due to the additional costs it might have entailed. As a result, I invite the Minister of Justice to continue his discussions with his provincial and territorial counterparts in order to convince them of the importance of such an amendment in the future.
I also expressed to the Committee my concerns regarding bilingual trials. The Criminal Code currently allows for courts to order bilingual trials. However, according to the relevant jurisprudence in this area of the law, a court can only make such an order if it is first convinced that the rights of the co-accused and the interests of justice are appropriately balanced. The modification that I proposed aimed to maintain the judge’s discretionary power on the matter. I was pleased to see that this provision has been amended to address my concerns and those expressed by the Fédération des associations de juristes d’expression française de common law. This organization has proposed further changes to improve the bill, and I am pleased to see that its proposals have been accepted.
I am therefore generally satisfied with Bill C-13 in its present form. The changes to the Bill will help clarify the implementation of the language rights the accused presently benefit from. While Bill C-13 does not grant the accused language rights for procedures related to the trial, particularly the appeal process, it is nevertheless an important bill that will facilitate access to criminal justice in both official languages.
To conclude I would like to draw your attention to a problem that I also raised in front of the House of Commons Standing Committee on Justice and Human Rights and that is related to the implementation of the language rights of the accused. That problem is the shortage of bilingual judges in provincial superior courts. This problem persists, even if it has been identified by my predecessors since the early 1990s and by the Department of Justice in a study entitled Environmental Scan: Access to Justice in Both Official Languages. The Fédération des associations de juristes d’expression française de common law, the Canadian Bar Association as well as Commissioner Dyane Adam have raised the issue before the House Subcommittee on the Process for Appointment to the Federal Judiciary. In its preliminary report made public in November 2005, the Subcommittee recognized the importance of modifying the process in order to remedy the problem. It is important that the superior courts have a sufficient level of institutional bilingualism in order for the accused to benefit from the language guarantees provided for in sections 530 and 530.1 of the Criminal Code. Without this capacity, the language provisions of the Criminal Code have no chance of fulfilling their objective, namely to give the accused the right to be tried in the official language of his or her choice.
I thank you for having taken the time to hear my comments of Bill C-13 and I would be happy to answer any questions you may have.
