Action Plan: Enhancing the Bilingual Capacity of the Superior Courts

Frequently Asked Questions

1. What is the goal of this Action Plan?

The measures included in the Action Plan follow up on the reforms to the superior courts judicial appointments process implemented in October 2016. Those changes increased the transparency and accountability of the process, and laid the groundwork for a longer-term vision for continuous improvement, including in the area of bilingual capacity.

The Action Plan proposes actions on the part of the Minister of Justice, the Judicial Advisory Committees (JACs), the Commissioner for Federal Judicial Affairs (CFJA), and the Department of Justice to:

• improve the information gathered on applications;
• strengthen assessment of candidates’ second official language skills;
• enhance information about the linguistic capacity of courts; and
• consider potential complement to second-language training for judges.

2. Will the Judicial Advisory Committees (JACs) play a new role?

The JACs continue to play their fundamental role in providing recommendations to the Minister of Justice. JACs already have an existing practice of collecting detailed information from references about candidates’ self-identified level of linguistic proficiency in English and French. The JACs’ current practice assists the Minister by identifying the bilingual capacity of candidates whom they highly recommend or recommend.

The measures seek to enhance how to assess relative levels of proficiency in both official languages. The questionnaire will include an additional two questions for those candidates whom the JACs are considering recommending for appointment, and who have self-identified as having bilingual capacity (Action Plan Item 1). These two questions will relate to a candidate’s ability and experience in expressing themselves in writing and in courtroom settings in their second official language.

These new measures will provide JACs with additional tools and information to play an even greater role in supporting the Minister to ensure that people dealing with Canada’s court system have greater access to justice in both of Canada’s official languages.

The need to ensure the bilingual capacity of JACs will be one of the considerations which guides the selection of the three representatives of the general public who sit on each JAC and who, since October 2016, apply through an open selection process.

3. What role will the Commissioner for Federal Judicial Affairs (CFJA) play in this Action Plan?

The CFJA will continue its important role and contribution in supporting the JACs and administering the appointments process on behalf of the Minister of Justice. In relation to the Action Plan, the CFJA is mandated to conduct language assessments and/or spot checks (Action Plan Item 1). The Commissioner has also been asked to develop recommendations for the Minister of Justice for an objective language assessment tool, again with a view to further strengthening the appointments process in the future (Action Plan Item 2). In addition, the CFJA will examine the delivery of the existing judicial language training program, including enhancement of the applied component focused on courtroom-based skills (Action Plan Item 3).

Since the implementation of the October 2016 reforms, announcements of judicial appointments have included excerpts of appointees’ application questionnaires, including information on their self-identified language proficiency in both official languages.

In addition, since October 2016, the CFJA has been mandated to collect and publish demographic data of applicants and those appointed, including information on official language capacity. This increases the transparency and accountability of the appointments process in order to reinforce public confidence in the judiciary. In addition, this measure enhances the amount of information available regarding the level of bilingual capacity of the superior courts.

4. What training and information on the linguistic rights of litigants will be made available?

In addition to the training on unconscious bias and the assessment of merit already received by JACs, the CFJA will also make available training and information to JACs on the linguistic rights of litigants (Action Plan Item 4).

The Minister of Justice will also ask the Canadian Judicial Council (CJC) to develop training modules for federally appointed judges on the linguistic rights of litigants, to be delivered through the National Judicial Institute (NJI) (Action Plan Item 5).

5. What information is available regarding the existing bilingual capacity of superior courts, as well as the ongoing needs they may have?

Chief Justices remain the best placed to inform the Minister of the needs of their courts, including the bilingual capacity needed in their court. The Minister already undertakes robust and collaborative consultations with Chief Justices and the Minister’s provincial counterparts to ensure that the bilingual capacity of candidates appointed is aligned with the needs of their courts. These conversations inform the recommendations for judicial appointments that the Minister makes to Cabinet.

These consultations will continue to be an essential source of information for the Minister.

The Action Plan will put in place a new measure that will complement the existing sources of information regarding bilingual capacity. The Department of Justice will work with interested jurisdictions and the courts to develop the means for assessing existing bilingual capacity of superior trial and appellate courts (Action Plan Item 6).

6. What is the purpose of undertaking consultations with provinces and territories?

The Government is committed to undertaking consultations with provinces and territories to gain a better understanding, assess needs, and work together to ensure all Canadians have an enhanced access to superior trial and appeal courts in both official languages. This will include working with existing partnerships and groups who have already built up substantive expertise in specific legal areas (e.g. civil, family, criminal). These groups may be in a position to provide insights into how considerations related to official languages affect Canadians’ access to the justice system (Action Plan Item 7).

7. Do these measures address the recommendations made by the Commissioner of Official Languages?

These measures address the recommendations made by the Commissioner of Official Languages in his 2013 report: Access to Justice in Both Official Languages: Improving the Bilingual Capacity of the Superior Court Judiciary. In particular, the actions related to the objective assessment of candidates’ bilingual capacity, the examination of existing language training programs, making new training on linguistic rights of litigants available to judges and JACs, and ensuring JACs have sufficient bilingual capacity all support or respond directly to the Commissioner’s concerns set out in his 2013 report. In addition, the October 2016 commitment to collect and publish information on applicants’ and appointees’ bilingual capacity, the confirmation of robust consultations on courts’ needs, and the JACs’ practice of identifying the bilingual capacity of highly recommended and recommended candidates also demonstrate the commitment of the Minister of Justice and the government to enhancing the bilingual capacity of the superior courts.