Ottawa, November 14, 2005
Notes for an appearance before the Subcommittee on the process for appointment to the federal Judiciairy of the Committee on Justice, Human Rights, Public Safety and Emergency Preparedness
Dr. Dyane Adam - Commissioner of Official Languages
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Mr. Chair,
Members of the House of Commons:
First of all, I would like to thank you for giving me the opportunity to speak to you today about a very important issue for official language minority communities across the country, namely federal judicial appointments.
I would like to begin by providing a brief history of this issue, and to follow up by suggesting some possible solutions for your consideration.
Access to justice in the official language of choice: a long-standing problem
As you are no doubt aware, the shortage of bilingual judges, that is, judges with adequate knowledge of English and French, is one of the main barriers to access to justice for some two million citizens who are members of an official language minority community. This problem, which has been identified by my predecessors since the early 1990s, still exists.
That is why your initiative to review the judicial appointment process and your recommendations could help to resolve this problem.
In 1995, my predecessor published a study on the equitable use of English and French before the courts in Canada that concluded that the linguistic capabilities of provincial superior courts and courts of appeal were unequal and insufficient. The report indicated that the shortage of bilingual judges had an impact on access to justice in our two official languages, in both criminal and civil matters. At the time, Commissioner Goldbloom made 13 recommendations to bring the federal government to remedy the situation. One of these recommendations called upon the Government of Canada to place appropriate emphasis on language skills in selecting candidates for judicial appointments.
In the five years following the publication of this study, the efforts of the Department of Justice focused on studies, consultations, and evaluations; however, there have been few concrete results with regard to the availability of bilingual judges.
In 2002, the Department of Justice made public a study entitled Environmental Scan: Access to Justice in Both Official Languages. This study, like the one published by the Office of the Commissioner seven years earlier, found that members of official language minority communities faced certain barriers that prevented them from being heard in their own language in superior court proceedings. Of these barriers, the shortage of bilingual judges remains a recurrent problem. The independent firm commissioned for this study also proposed several solutions to the government, including appointing more bilingual judges to provincial superior courts.
Ten years after my predecessor made his recommendations, and several years after the Department of Justice’s study was published, I am sorry to say that, in practice, progress has been modest. While the Federal Court and Federal Court of Appeal now have sufficient bilingual capacity, there is still a shortage of bilingual judges in provincial superior courts and courts of appeal.
To date, the federal government’s response to my recommendations, those of my predecessors, and those of the House of Commons and Senate committees has been largely inadequate. The shortage of bilingual judges in provincial superior courts and courts of appeal is a recurrent problem that requires positive action by the Minister of Justice. As representatives of official language minority communities and lawyers’ associations consistently remind us, achieving true equality for both official languages goes hand in hand with ensuring equal access to the Canadian justice system. During his appearance, Mr. Tabor, President of the Canadian Bar Association, emphasized the importance of ensuring the bilingual capacity of Canadian courts. He also stressed the negative impact of insufficient bilingual capability on the rights of Canadians to access justice in the official language of their choice.
In light of the federal government’s constitutional and legislative obligations, I strongly encourage you to recommend ways to modify the judicial appointment process in order to ensure the bilingual capacity of our superior courts and courts of appeal.
Possible solutions
I would now like to discuss some aspects of the current appointment process that must be modified in order to achieve this objective.
First, let us look at the work of the advisory committees in charge of evaluating candidates for judicial appointment based on a series of selection criteria. It should be noted that the ability to communicate in both official languages is only one of a number of selection criteria considered, and that it is not accorded any special weight.
I recognize the importance of ensuring that judicial candidates are selected based primarily on professional skill and individual merit. However, as the Minister of Justice acknowledged during his appearance last October 25 th, merit must be evaluated in light of the court’s specific needs—which, in my opinion, implicitly include the need of each court to ensure that it has sufficient bilingual capability.
I believe not only that a candidate’s language skills should be given more weight, but also that the current process should be modified to enable the Minister of Justice to easily identify bilingual candidates on the lists of those who have been highly recommended and recommended. Such a change would enable the Minister to fill positions by taking into account all of the relevant information. Once the minister has determined a court’s particular needs, he would then be able to identify qualified bilingual candidates who would help meet its needs in terms of institutional bilingual capacity.
The Honourable Irwin Cotler indicated, during his appearance, that he usually consults with the chief justice of the court that has the vacancy, to get a better understanding of the needs of that court. I congratulate the Minister for the initiative shown in holding such consultations, but note that this practice is entirely discretionary. I believe that this consultation process should be formally incorporated into the judicial appointment process, to ensure that this practice continues. In my view, the existing process should be modified to require the Minister of Justice to consult the chief justice of the court in question on its specific needs in terms of bilingual capacity.
Moreover, the Environmental Scan clearly shows that it is up to the federal government to demonstrate leadership in this area by recognizing the needs and shortcomings, with regard to bilingual capacity, of superior courts and courts of appeal responsible for administering federal laws. Another way of identifying such needs would be to consult the official language minority community concerned or the lawyers’ association that represents the community’s interests. I believe that Part VII of the Official Languages Act imposes such an obligation upon the Minister of Justice so that he can take into account the needs of the official language community with regard to access to justice. Such consultations would make the judicial appointment process more transparent and more accessible, without making it more cumbersome.
Another aspect of the current process that should be modified is the way in which advisory committees evaluate the language skills of candidates for judicial appointment. I wouldn’t be out of line if I said that these skills are currently not evaluated at all.
Under the existing process, candidates are asked to indicate the official and other languages in which they would be able to hear or preside over a trial. The committees do not, however, conduct any checks or evaluations to confirm whether the candidates are sufficiently proficient in these languages.
A candidate’s language skills could be evaluated in a number of different ways. As suggested by some of the individuals who appeared before you as part of this study, I believe the evaluation could, for example, take place during a private interview with the candidate, conducted by the advisory committee.
Finally, allow me to suggest another possible solution to the problem of the bilingual capacity of the federal judiciary.
I would ask this committee to recommend, at the very least, that the Department of Justice adopt a policy committing the Minister to replace all bilingual judges who leave their positions with judges who are also bilingual.
The importance of adopting such a policy is illustrated in situations that are, unfortunately, all too common. Cases in Welland and Windsor, in Ontario, are but two recent examples.
In each of these cases, a bilingual Superior Court judge retired and was replaced by a unilingual anglophone. In effect, these appointments resulted in the loss of the court’s bilingual capability, and a decline in access to justice for members of the Franco-Ontarian community in these regions.
Access to justice is the cornerstone of our judicial system. The insufficient bilingual capacity of provincial superior courts and courts of appeal means that a significant segment of the Canadian population is being denied the right of access to justice in the official language of their choice. The changes to the judicial appointment process that I submit for your consideration today are key to ensuring equal access to justice in both official languages. We would encourage you to consider our suggestions:
1. The selection criteria related to the candidates’ language skills should be given more weight.
2. The advisory committee should be required to evaluate the bilingual capability of candidates who have identified themselves as such, in an interview, for example.
3. The list of candidates submitted to the Minister should indicate candidates with sufficient knowledge of English and French.
4. The Minister of Justice should commit to replace all bilingual judges who leave their post with judges who are also bilingual.
5. The appointment process should recognize the Minister of Justice’s duty to consult the official language minority community or the lawyers’ association that represents its interests with respect to the needs of a particular court in regards to its bilingual capacity.
Thank you. I would be happy to answer any questions you may have.
