Spotlight on bilingualism on the bench

  • October 11, 2017

Mieux vaut tard que jamais – better late than never, as they say.

In September, the federal government announced a new plan to enhance the bilingual capacity of Canada’s superior courts.

In March, then-President René Basque wrote to Justice Minister Jody Wilson Raybould and Heritage Minister Mélanie Joly to underscore the importance of bilingual capacity on the bench as an access to justice issue.

“Deeply committed to the improvement of the law and the administration of justice, the CBA has worked tirelessly to encourage official bilingualism in the legal arena for many years,” he wrote. “Furthermore, as the CBA’s first Acadian president, I attach special importance to the linguistic duality underpinning the core values of our national identity and our legal system.”

He noted that among other things, hearings held by Standing Committee on Official languages established that:

  • Hearings conducted in French outside Quebec are generally longer and more expensive, even in criminal law cases.
  • Francophone and bilingual judges are negatively impacted by the low overall rate of bilingualism among judges. Called upon for their language skills, francophone and bilingual judges are often made to hear cases outside their legal districts, thereby delaying the processing of files in their own districts.
  • The limited bilingualism of other legal stakeholders – such as court clerks or police officers – is a serious barrier to accessing justice in French.
  • Government support for the implementation of French-speaking lawyer associations in all provinces and territories is an essential step in improving access to justice in French.

The CBA has long advocated for a more bilingual bench, particularly in superior courts, and the announcement of a seven-point action plan would address at least some of the CBA’s issues.

The plan “includes strategies for enhanced tools to verify and assess the bilingual capacity of judicial applicants, examine language training for current members of the judiciary, and confirmation of the Minister’s commitment to collaborative consultations with Chief Justices with respect to the bilingual capacity needs of their courts,” the news release said. “The Government is also committed to consulting with provinces and territories on relevant bilingualism initiatives.”

The seven-point plan includes:

  • Questionnaires for candidates who have self-identified as bilingual will include two extra questions, and the Judicial Advisory Committees will be directed to verify the answers to the questions to ensure they align with the candidates’ declared language ability. The Commissioner for Federal Judicial Affairs will also be authorized and encouraged to conduct language assessments and/or spot checks.
  • The CFJA will be asked to develop recommendations for a tool that could be used to objectively assess the language capabilities of candidates.
  • The CFJA will examine the delivery of existing language programs
  • The CFJA will make training and information to JACs on linguistic rights of litigants.
  • The Canadian Judicial Council will be asked to develop training modules for federally appointed judges on the linguistic rights of litigants to be delivered through the National Judicial Institute.
  • Justice Department to work with interested jurisdictions and the courts to develop the means for assessing existing bilingual capacity of superior courts.
  • Justice Department to consult with the provinces and territories to examine possible ways of assessing the needs of Canadians in accessing superior courts in both official languages.