Senator Rose-May Poirier

Senator Poirier: Thank you again for being here. I have a few questions for you.

In your opinion, what mechanisms are needed to ensure that the Official Languages Act is fully enforced? Should responsibility for its implementation be given to a specific department, such as Treasury Board or the Department of Canadian Heritage?

Mr. Carrier: Many people seem to believe that having a central dedicated agency, rather than giving a number of different federal departments shared responsibility, would improve delivery and coordination and ensure that important things do not slip through the cracks in exchanges between the various organizations.

In general, from what I’ve read and heard and from what we think as well, there should be a central agency. In New Brunswick, the law gives that responsibility to the premier’s office.

In the most recent annual report, Ms. Entremont suggested creating a secretariat that would support the premier’s work. The premier has a lot of other things to worry about, which means that the official languages portfolio might not get the attention it requires. The creation of a secretariat, similar to other secretariats that exist in New Brunswick, could help with coordination efforts and influence the work of senior departmental officials.

Yesterday, I heard, again in a certain area, that the problem lies mainly with management. We can have official languages implementation plans in New Brunswick, but if the managers do not believe in them, do not get on board or are not committed, those plans may not work.

The creation of a secretariat, possibly lead by someone from the deputy minister’s office, might have a greater influence.

I don’t know whether that answers your question, but applying New Brunswick’s example to the federal government might give better results.

Senator Poirier: As the Commissioner of Official Languages for New Brunswick, are you satisfied with the quality of the translation of court judgments? Do you think that is a problem?

Mr. Carrier: You mean is there a problem with translation?

Senator Poirier: Yes.

Mr. Carrier: Not that I know of.

Senator Poirier: No?

Mr. Carrier: Under the New Brunswick Official Languages Act, any decision of importance to the general public must be translated and published in both official languages.

The Court of Appeal determined that all of its decisions fall into that category and so all Court of Appeal decisions are translated. They are translated by the Université de Moncton’s Centre de traduction et de terminologie juridiques or the CTTJ, which does an extraordinary job.

I have talked with judges and other legal experts about this, and there do not seem to be any concerns about translation quality.

Senator Poirier: I’m asking that question because some witnesses from the Supreme Court, among others, told us that, at the federal level, there are sometimes significant delays and that they have to review the translated documents several times after getting them back.

Are you able to compare the quality of federal court and New Brunswick provincial court translations? Do you have any comments in that regard?

Mr. Carrier: Not really. We’ve never compared the two. As I mentioned, New Brunswick’s legal minds have never mentioned any problems with the quality of court decision translations.

Senator Poirier: Okay.

Mr. Carrier: In our opinion, that issue has been resolved since the translations are accurate and of good quality.

In the beginning some adjustments had to be made. Obviously, when the translation comes back, judges can make any necessary adjustments. In fact, that exercise can actually prove helpful.

We know that legal decisions need to be accurate and that the ideas need to be clearly conveyed. When decisions are translated, the translation can even help the judges to clarify certain points.

I used to be the executive director of the Law Society of New Brunswick. At one point, we got a document about a major project translated. It was about the reform of the New Brunswick Law Society Act. Getting that document translated helped us to make it more clear and accurate. We dealt with the CTTJ, which produced an outstanding translation.

Senator Poirier: Perfect. Thank you very much. I understand.

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Senator Poirier: Thank you for being here and for agreeing to send us your notes. We really appreciate that.

I have a few questions. My first question is about the appointment process for the Commissioner of Official Languages. During the last process, there were unnecessary delays in appointing the commissioner. How do you think the federal Official Languages Act could be amended to ensure that doesn’t happen again?

Mr. Caron: Is the situation you’re referring to the one involving Madeleine Meilleur?

Senator Poirier: I’m talking about the process, not necessarily an individual. I don’t necessarily want to name names. I’m talking about how the Commissioner of Official Languages appointment process works. Can you suggest some other way that process could work?

Mr. Caron: As far as I know, every commissioner before now was appointed unanimously by Parliament. I would suggest that Parliament be required to appoint the commissioner unanimously because that person is an officer of Parliament.

Senator Poirier: Okay. Do you think anything should be changed in the legislation? Should there be anything specific in the legislation or the process?

Mr. Caron: Yes, exactly, that the person be appointed unanimously. I think that would eliminate any partisanship from the appointment.

To answer your questions, what I’m asking for may be a wish list. I understand that there are challenges, but I’m offering answers in an ideal world. I think if that the more we legislate, the better because otherwise we are truly at the mercy of the different governments.

Senator Poirier: Do you believe that we should amend the commissioner’s powers to give them more teeth?

Mr. Caron: That is a good question because I know that his role is to make recommendations. At the same time, the courts play a role and have more power. As a lawyer, I like going before the courts. I think that the current system is good. The courts are able to order more binding measures. I was also going to talk about a source of funding for the various organizations to defend their rights in court.

The answer to your question is no because I believe that the status quo is just fine.

Senator Poirier: I have another question on access to justice. Our study is currently on modernizing the Official Languages Act. What would you say is missing to ensure equal access to justice? Is there a solution for amending the legislation?

Mr. Caron: Indeed, it is the Court Challenges Program, which became the Linguistic Rights Assistance Program I believe. It is about positive measures that provide access to justice because, as we know, legal fees are exorbitant for an individual whose rights are being violated. Often, going before the courts without any sort of assistance is not really worth it.

This is a government program and in the questions that the clerk sent me, there was a question about the value of legislating this. It is absolutely worth it because the program has changed, as we saw recently. In 2015, the new government decided to reinstate it and today, at the end of 2018, the program is still not up and running. I know that they took every possible measure and that it is a matter of time, that it will be operational soon, but if there is a new government in 2019 this could end up on the backburner again.

It is a matter of codifying it in under Part VII of the Act, which talks about enhancing the vitality of linguistic minority communities because claiming rights and obtaining a source of funding is a positive measure for enhancing linguistic minority communities.

Senator Poirier: Thank you.

What do you think of the quality of the translation of court judgments and what role should the federal government play in that regard?

Mr. Caron: I think that the quality of the translation is very, very good. We know that under subsection 20(2) of the legislation, if I’m not mistaken, not all rulings have to be translated. I believe that they all should be translated because we are working with the common law under what is called stare decisis, which means being guided by precedent.

This applies to francophone and anglophone lawyers alike. There could be a decision that happens to have the very case that the lawyer wants to use, but the decision is in the other language. It’s not necessarily fair in the sense that the decisions have an impact on everyone. I think translation of all decisions should be mandatory.

The New Brunswick Official Languages Act requires the New Brunswick Court of Appeal to have all its decisions translated.

Sometimes the judge will announce the decision from the bench. I have no problem with the judge announcing their decision in either official language, but written and reasoned decisions should be made in both languages.

Senator Poirier: Thank you.

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Senator Poirier: I’d like to pursue this idea because we are talking about New Brunswick. In Miscou, anglophones are the minority, not francophones.

Mr. Caron: Absolutely.

Senator Poirier: Anglophones there could ask for the same thing. That’s an example.

Mr. Caron: Yes, you’re absolutely right.

The Chair: Does substantive equality between the two communities in New Brunswick mean that an anglophone community living in a broader minority francophone environment can, in fact, be considered a minority? Yes or no?

Mr. Caron: In my view, yes. In the school bus case, the protection flows from the Canadian Charter of Rights and Freedoms, which provides significant flexibility. Just because a person is anglophone in New Brunswick doesn’t mean that they can’t belong to a minority community. It is clear that, in most cases, francophones are the minority. It would be up to the court to decide, of course. However, the court would have considerable latitude in its interpretation given that many laws continue to be interpreted very broadly. The rights set out in the Official Languages Act are interpreted broadly and liberally. In that sense, then, my answer would be yes.

Senator McIntyre: Yes, I agree. The point is to protect minority communities, whether they are francophone or anglophone. Here, in New Brunswick, or in Quebec.

Senator Poirier: I’d like to share some observations. This is a fascinating issue, and I want to thank you. I think there is a big age difference, so things may have changed in recent years. When I moved to Saint-Louis-de-Kent, the population was made up of both francophones and anglophones. It varied depending on the village. We didn’t have any French-language schools in the town I lived in, so I continued my studies in English. Francophones and anglophones rode together on the bus. When someone asked me which language I wanted to speak — it was slightly different in our case — I would answer in their language. If I was speaking to the francophone girl who lived next door, I would speak French. If I was talking to the boy who lived two streets down, we would speak English, so it was a mix of both languages. The bus driver was fully bilingual. He could talk to all the kids on the bus, no matter which language they spoke. Now I see that the situation varies across the province, depending on the region.

Mr. Caron: I agree with you. If the person next to me speaks French, I will probably talk to them in French, and I would do the same thing if I was taking the bus in Moncton today. No question. When I wrote the article about the school buses, I thought it was important to draw a line somewhere as far as the school system was concerned. The court never ruled on the school bus case. The question was referred to the Court of Appeal of New Brunswick but was eventually dropped by the province. That’s my opinion, but others surely have opposing views and they would be equally valid.