OTTAWA – Every judge the federal government appoints in officially bilingual New Brunswick and to the Supreme Court of Canada should be bilingual, a Commons committee was told Thursday.
Official languages commissioner Graham Fraser and two Université de Moncton law professors told MPs too few judges in superior courts and courts of appeal are bilingual, and that shortcoming is denying a significant number of francophones equal access to justice.
In New Brunswick, a lawyer and client who decide to proceed in French face a situation where "two-thirds of the judges are not eligible to hear them," which has led to delays, said Michel Doucet, who has argued several language rights cases before the Supreme Court.
"New Brunswick is the only officially bilingual province in Canada and we should ensure any judge who is appointed is bilingual," said Doucet.
The committee also heard concerns that prospective judges do not have to pass any objective test of their language abilities or undergo an interview when they undergo confidential screening by judicial advisory committees in each province.
Fraser said federal Justice Minister Rob Nicholson's practice of consulting with chief justices in each province about their need for bilingual judges is a positive step.
Overall, however, the federal government's responses to repeated calls for reform from his predecessors and from parliamentary committees "have been timid and largely inadequate," said Fraser.
Darren Eke, a spokesman for Nicholson, said the government is guided by merit and legal excellence in all judicial appointments, and seeks linguistic competence.
The Conservative government has named eight new judges in New Brunswick, of whom four have been bilingual.
He said the appointment process already allows the justice minister to address the need for access to justice in both languages, particularly by requiring applicants to declare their language ability.
But Louise Aucoin, another Université de Moncton law professor who heads a group representing 1,300 francophone lawyers, told MPs some judges have stated they are bilingual when they are not.
That led some MPs to express shock that a judge would be misleading about his or her abilities – until Aucoin and other witnesses clarified that allegation.
"I don't think people are cheating," said Fraser. "When they declare they are bilingual, they do so in good faith but they may not appreciate the level of bilingualism judges need."
The Supreme Court of Canada, which now has eight bilingual justices and one unilingual anglophone, does not require all its members to be bilingual. Interpreters are used when needed.
Doucet said from experience that has left him wondering whether language barriers tipped the balance of at least one case.
After losing a ruling by a 5-4 split decision a few years ago, when a few members of the court were unilingual and his words had been translated, he happened to hear the interpreters' words later while watching CPAC.
He said he couldn't make sense of what he heard.
"I asked myself later, 'would it have been a different outcome if I had argued the case in English?' "
NDP official languages critic Yvon Godin said all appointees to the Supreme Court should be bilingual.
"At the top court, the person being judged truly has their entire future hanging in the balance," said Godin.
Liberal official languages critic Denis Coderre said he planned to table a motion calling on the committee to recommend all Supreme Court justices be bilingual.
The discussion about language ability on the Supreme Court comes as the Harper government must choose a replacement for Michel Bastarache, the Acadian New Brunswicker who steps down from the top court in June.