ࡱ>  [bjbjVV 4j<<S$$lllll,lh $vBlll&Jll0Yj<0l"l l$ 2: Debates of the Senate (Hansard) 3rd Session, 40th Parliament, Volume 147, Issue 74 Tuesday, December 7, 2010 Supreme Court Act Bill to AmendSecond ReadingDebate Continued On the Order: Resuming debate on the motion of the Honourable Senator Tardif, seconded by the Honourable Senator Rivest, for the second reading of Bill C-232, An Act to amend the Supreme Court Act (understanding the official languages). Hon. Gerald J. Comeau (Deputy Leader of the Government): Honourable senators, let me begin by saying that I do not doubt for a moment the good intentions of those who support this bill, who, I am quite convinced, are probably acting in good faith. Unfortunately, the best intentions in the world do not always translate into good decisions on public policy. Bill C-232 proposes to impose, for the first time in Canadian history, individual bilingualism as a prerequisite for serving in a Canadian federal institution. That is very different from requiring federal institutions to provide the Canadian public with services in both official languages, a requirement that stems from our constitutionally-entrenched language rights, from our federal legislation on official languages and from our linguistic policies. (1750) I remind senators that this bilingualism scenario would not apply to just any institution; it would apply to the Supreme Court of Canada. No Canadian has ever been refused the right to work in a federal institution, such as the army, the judiciary, the public service, the RCMP, Parliament, or any institution, because they were not bilingual. They have not been refused. The Official Languages Act is clear on this subject. Section 2 states: The purpose of this Act is to. . .ensure respect for English and French as the official languages of Canada and ensure equality of status and equal rights and privileges as to their use in all federal institutions. . . But "equal rights and privileges" is not a synonym for bilingualism. Section 34, Part V, of the Official Languages Act states: English and French are the languages of work in all federal institutions, and officers and employees of all federal institutions have the right to use either official language in accordance with this Part. In Part VII, the Government of Canada commits to ensuring that: . . . English-speaking Canadians and French-speaking Canadians . . . have equal opportunities to obtain employment and advancement in federal institutions . . . Unfortunately, Bill C-232 rejects this duality. It rejects the concept of the official languages. Now, the principle of Bill C-232. According to some of my colleagues, the bill requires Supreme Court judges to understand the "subtleties and nuances" of the laws they must interpret. In reality, unlike applicants in other federal institutions, potential candidates for the Supreme Court would be required to be bilingual. Of course, wanting every judge in the country to be bilingual is difficult to criticize. Certainly, it would be wonderful if everyone in Canada were bilingual, but that is not the reality in our great nation, which has never required that its citizens be bilingual. If legislators can argue that Supreme Court justices should be bilingual because they interpret legal principles that emanate from our laws, should they not also argue that those who impose the laws should also be able to perfectly understand the "subtleties and nuances" of the laws they are drafting, amending and voting on? After all, every time they vote, unilingual legislators are voting on bills they are unable to read in both official languages and relying on professional interpreters to be able to follow the debate on the bills. The unilingual legislators who support this bill are denying others the right to serve their country, but want to keep that right for themselves. Are these legislators not being hypocritical by imposing on others a condition of bilingualism that they themselves are refusing to respect? Some senators have made the point that other federal courts give litigants the right to be heard in the language of their choice. That is indeed true. The Official Languages Act stipulates that the federal courts must give equal access to both official languages. However, no federal court requires potential judges to be bilingual. As I was saying earlier, no federal institution imposes bilingualism on applicants. Any Canadian who understands one of the two official languages can apply for a position within a federal court. Bill C-232 is a measure that would set precedents by making the Supreme Court the first federal institution to use federal legislation to deny a unilingual Canadian the right to serve that institution and to serve their country. Some people think the Supreme Court is so important that it justifies denying unilingual Canadians the right to serve it and sit on it. Honourable senators, this is a slippery slope. Any justification for refusing to allow non-bilingual Canadians to serve their country paves the way to the possible refusal to respect the official languages rights of all citizens. If it is justifiable and acceptable to deny official languages rights to a Supreme Court candidate, whose rights will be denied next? Could we deny rights to those who want to join the army, the public service, even Parliament? If we could justify not allowing unilingual Canadians to serve, does that same logic mean that it would be acceptable to refuse a non-bilingual person the right to serve in certain federal institutions? Linguistic duality would lose all value. Proponents of linguistic duality must ask themselves if imposing bilingualism, other than as it is set out in the Official Languages Act, is a wise linguistic policy. Linguistic duality is gaining more support throughout Canada, as is respect for official language minority communities. You cannot start cherry-picking your rights. In French, it is a new twist on a familiar saying: On ne peut prendre les perles et laisser les pierres. If we can justify trampling on the official language rights of Supreme Court candidates, does that not imply that we can brush aside the official language rights of ordinary people and attack institutions with less prestige than the Supreme Court? Do we really want to start studying one-off private members' bills that would impose linguistic requirements on federal institutions? The Bloc and Liberals proposed an amendment to Bill C-20 in the other place, under which the CEO of the National Capital Commission would now have to be bilingual. According to the Bloc member who proposed the amendment, he attended a meeting and "realized that [the CEO] was not able to respond to people's questions in French." I find it a bit odd that the Bloc Qubcois has now started to support bilingualism. That is quite a novelty. I wonder how the Bloc Qubcois will explain that to their Quebec constituents. But I digress. This is akin to rejecting the Official Languages Act. We should all be proud of our successes that are a product of our official language laws and policies. I sat in Parliament in 1988, in the other place, when the last amendments to the Official Languages Act were being debated and I remember the good will and attention that exemplified the changes. We respected the guiding principle that Canada has two official languages and that Canadians would not be denied the right to serve their country. The official language rights of both francophones and anglophones will be protected. The Official Languages Act has served Canada extremely well. An increasing number of Canadians support its principles, provisions and protective measures. In fact, the courts and many Canadian citizens grant it a quasi-constitutional status, and with good reason. Canadians can take comfort in knowing that the Official Languages Act guarantees them protection if their language rights are violated. As in the past, they can appeal to the Commissioner of Official Languages to have their rights protected. The Official Languages Act also set out protective measures for official language minority communities to ensure that federal institutions respected minority rights. By refusing to respect the right of unilingual Canadians to serve in one of our federal institutions, this bill implies that the Official Languages Act and the principle of linguistic duality are meaningless. [English] This is why I am particularly disappointed and disturbed with the decision of the Commissioner of Official Languages to lobby for passage of legislation that takes away the language rights of candidates for the Supreme Court of Canada and supports the imposition of bilingualism. Linguistic duality and bilingualism are two entirely different precepts. If there is one person who should know the difference between them, it is the Commissioner of Official Languages. That is the one person to whom parliamentarians should be able to turn to help explain objectively and authoritatively these two different concepts. This private member's bill has nothing whatsoever to do with the Official Languages Act. In fact, I question how the commissioner, as an officer of Parliament, can use his office to lobby for a bill that clearly goes against the principles of the Official Languages Act and the constitutionally protected rights of Canadians. Nowhere in the Official Languages Act is the notion of bilingualism found. It is my view that the commissioner is wrong and is outside his mandate to downgrade the right to a privilege to serve their country. Some Hon. Senators: Hear, hear! Senator Comeau: Under Part IX, subsection 56(1) of the Official Languages Act describes the mandates of the commissioner as follows: It is the duty of the Commissioner to take all actions and measures within the authority of the Commissioner with a view to ensuring recognition of the status of each of the official languages and compliance with the spirit and intent of this Act in the administration of the affairs of federal institutions, including any of their activities relating to the advancement of English and French in Canadian society. I suggest that the commissioner publicly justify how and under what mandate he is using the considerable powers and resources of the Office of the Commissioner of Official Languages to lobby for bilingualism policies that clearly fall outside the commissioner's mandate. The Hon. the Speaker: It being six o'clock and pursuant to the Rules of the Senate, I am obliged to leave the chair to return at eight o'clock. (The sitting of the Senate was suspended.) (2000) (The sitting of the Senate was resumed.) Senator Comeau: Honourable senators, the main arguments for the necessity of Bill C-232 is that a judge who relies on professional interpreters will miss the nuances of oral arguments and therefore not render a proper judgment in the interpretation of principles of law. Senator Tardif referred to Michel Doucet who said that he possibly lost a case because anglophone judges could not understand his oral testimony. [Translation] However, honourable senators, I would like to say that if such a situation arose, it would be a grave miscarriage of justice. Fortunately, when that happens, the Supreme Court has provided recourse for re-hearing cases in section 76 of its rules of practice. In Protestant School Board v. Quebec (Attorney General) in 1989, the Court confirmed the existence of this recourse in exceptional cases of miscarriage of justice. Perhaps Mr. Doucet could have examined that recourse. Another question remains: if such an exceptional situation were to arise with simultaneous interpretation, it is easy to prove the mistake was made in the interpretation and to appeal for a re-hearing? However, without interpretation, as set out in this bill, if the judge misunderstands something, that would be impossible to prove. Will a judge admit that he or she misunderstood a linguistic nuance? I doubt it. [English] The argument is that professional interpretation does not work, that it is a failure. If such is the case, it logically follows that Parliament itself does not work because a great number of unilingual parliamentarians rely, and have historically relied, on professional interpreters to follow the debates of Parliament on which they base their votes. The United Nations and the European Union would be in terrible trouble if professional interpretation did not work. Frankly, I greatly admire the work of our professional interpreters, and I see absolutely no cause to question their interpretation skills and the skills that they provide not only to Parliament but also to the Supreme Court and other venues. This argument also presumes that Supreme Court judges render judgments on facts or evidence presented orally before them. That is not case. The Supreme Court is not there to receive the evidence of a case as it is not the role of the Supreme Court to gather the facts. The facts of particular cases that may make their way to the Supreme Court are the responsibility of the lower courts. The role of the Supreme Court as an appellate court is to adjudicate legal questions and principles, not to reassess or re-weigh the evidence. As an aside, there is no right to be heard by the Supreme Court, except in criminal cases where there is dissent on a point of law at the Court of Appeal. Otherwise, the Supreme Court decides whether it will hear a case or not, and it does not even need to explain its reasons for refusal. The argument that a Supreme Court justice who relies on highly trained professional language experts to better understand oral legal arguments would be unable to render a sound legal judgment is simply nonsense. It has been further argued that a Supreme Court judge should be able to understand the emotion behind the words in the oral arguments. Again, this argument is nonsense. Emotion is the domain of the lower courts where issues of credibility are assessed and adjudicated. Some have suggested that the bill does not require that Supreme Court justices be bilingual, yet these same proponents argue for perfectly bilingual judges. Senator Jaffer clearly summed up the bilingual argument by pointing out that justices have . . . to understand exactly what my client's words meant in both official languages. Such comments confirm that the Supreme Court candidate would have to be perfectly I see that my time is up. I wonder if I might be granted an extra five minutes. Hon. Senators: Agreed. Senator Comeau: Some comments confirm the intent that the Supreme Court candidate would have to be perfectly and fluently bilingual to understand fully what is claimed in legal arguments in both languages of both the civil and common law systems without the aid of an interpreter. To conclude, this bill is based on the premise that Canada is a bilingual country. In fact, Canada is not a bilingual country but a country with two official languages. With the exception of the Supreme Court, federal institutions are required by the Official Languages Act to respect the two official languages. This bill proposes a new concept of individual or personal bilingualism for candidates to serve in one of our nation's most important federal institutions. Imposing bilingualism without the protections of the Official Languages Act is in my view a dangerous precedent. Let us stick with linguistic duality, equality of the two official languages, and not fool around with half-baked bilingual schemes. Otherwise, we have to question how safe our language rights are if backbenchers with a slim majority can start messing around with fundamental rights by means of private members' bills. The very slim margin, a vote of 140 to 137, coalition members in the other place have the legislative numbers to pass such legislation by slim margin, a vote of 140 to 137, and impose bilingual requirements on the Supreme Court candidates. Majorities can impose such laws, which is why minority language communities should take warning. Over my 25 years in Parliament, I have fought for the promotion of linguistic duality and the protection of official language minorities. I ask all honourable senators not to be sucked into supporting legislation that takes away individual language rights. Senator Mercer: Oh, oh. Senator Comeau: Senator Mercer, you will have your chance. I move now to the principle of the bill. There are two aspects to voting on this An Hon. Senator: Order. Senator Di Nino: A little respect, please. Senator Comeau: Your Honour, is my time on this bill being used up by Senator Mercer? There are two aspects to voting on the second reading principle of the bill, aim and the means. The aim or object of this particular bill is for litigants to be heard by Supreme Court justices without interpretation, whatever that means. Equally important at second reading is the means or mechanism by which the aim is so accomplished. This aspect is where the real problem arises with this bill. To accomplish the aim, the bill has to take away language rights of Canadian citizens. I suggest to honourable senators that the aim does not justify the means. (2010) If we want to attain the objective of a fully bilingual court, we will have to go back to the drawing board and accomplish our objectives without trampling on the language rights of Canadians. I want to address my anglophone friends from across Canada who may not be bilingual. I encourage my anglophone friends to go to francophone parts of Canada. You will be amazed at what you will find. I especially invite you to go to Quebec, which is a whole new world. You will learn a new culture, a different language, and you will be amazed at how friendly and great the people of Quebec are; not only the francophones of Quebec but also the francophones throughout Canada. You will meet people you will truly like. [Translation] I also want to address francophones from across Canada who should in no way be fooled by this type of bill that takes away their rights. I especially want to address the francophones who have worked for decades and centuries to protect their language and their culture. They should not let this type of bill persuade them to stop fighting for their rights. We saw that with the plan for the National Capital Commission, where amendments have been proposed; we are starting to see requirements that members of Parliament from the other place be bilingual. I want to encourage you by saying that I will never support a bill that will force our Canadians to learn a second language in order to be able to serve their country. [English] I say this to my anglophone friends as well: I will never support any project or law that imposes upon or forces Canadians to learn a second language in order to serve their country. Learn it because you want to learn it, not because you are forced by parliamentarians to learn it. That is where my thoughts are on this subject. Some Hon. Senators: Hear, hear! [Translation] Hon. Serge Joyal: Would the honourable senator accept some questions? Senator Comeau: Yes. Senator Joyal: I listened closely to both parts of Senator Comeau's speech and I am disappointed that we were not able to hear it all at once, due to the six o'clock break. However, in the first part of his speech, if I understood his remarks correctly, he said that the Official Languages Commissioner had erred in his interpretation of his mandate in particular and had spoken about his interpretation of the Official Languages Act and the Constitution, which Senator Comeau felt was not in keeping with the nature of his mandate. Given that he cannot possibly explain this unless he comes to this chamber during a sitting where we give him the opportunity to make his point, or unless he testifies at committee as to how he would answer the senator's questions and counter his conclusions, which of the two forums would the senator prefer for giving him an opportunity to explain his point of view? Senator Comeau: The official languages commissioner defended his opinions publicly in the House of Commons, during his presentations before the Standing Committee on Official Languages. He defended them publicly in the papers and, if I recall correctly, before the Standing Senate Committee on Official Languages, where he spoke in favour of this bill. He even encouraged committee members to pass the bill. If you have listened to my comments carefully, you will have heard me say that this bill has nothing to do with official languages. This is simply not the mandate of the commissioner of official languages. This is a bill to impose bilingualism on individuals as a condition of serving a federal institution. It imposes bilingualism and has nothing to do with the Official Languages Act. I believe I have made that very clear. In my opinion, his mandate does not include exploring issues of bilingualism in order to impose new forms of individual bilingualism. In my opinion, his mandate is the Official Languages Act and not some new form of individual bilingualism. The Hon. the Speaker: I regret to inform honourable senators that Senator Comeau's additional time has expired. (On motion of Senator Comeau, on behalf of Senator Meighen, debate adjourned).  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LrcXG*Ax Times ew Roman..-c..zcD.Ldv% % % TvUU@v@LpSupreme Court ActSSSCC}C&lKSC2&lC1TTv(UU@v@LP Q Rp@Times New Roman.P. .4.Q\.. ..Q\.. qc.. rcXG*Ax Times ew Roman..-c..zcD.dv% % % TUU@v@ LhBill to AmendU K&9Q_1?>TTUU@v@LP qTUU@v@LhSecond Reading?218??Q28?>9TTq UU@v@ LP pTp  UU@v@p LlDebate ContinuedR2>8&1R8?&>?2>TT  UU@v@ LP = Rp@Times New Roman.P. .4.Q\.. ..Q\.. qc.. rcXG*Ax Times ew Roman..-c..zcD.dv% % % TUU@v@ LhOn the Order:H22,H!2-!TTEUU@v@LP - T,s  UU@v@ PLResuming debate on the motion of the Honourable Senator Tardif, seconded by the C,'2N212,2,,222,N2222!2,H2222!,2,8,2,2!=-!2!',,223-2302, T L W UU@v@@ ;LHonourable Senator Rivest, for the second reading of Bill CH2222!,2,8,3,2!C2,'!2!2,',,222!,,2322!BCTTM m W UU@v@M @ LP-!Tn W UU@v@n @ Ll232, An Act to U 222H2H,3T W UU@v@@ L`amend the ,N,222, TY  UU@v@ 9LSupreme Court Act (understanding the official languages).822!,N,C22!H,!223,!',22312,2!!,,-212-2,'!TT Y E UU@v@ LP - % % % T?  UU@v@ 8LHon. Gerald J. Comeau (Deputy Leader of the Government):N28M,,282H3R,29!H,88!2C,28,,2"!8,M22-,9R,8!!!% % % TT A 9 UU@v@ LP T: A  UU@v@: LxHonourable senators, H2222!-2,',2,2!' T 2 % UU@v@ ALlet me begin by saying that I do not doubt for a moment the good ,N,2-1230(./313,22222222!3!,O2N,22,1222T3 % UU@v@3  L|intentions of those who 2,223'2!2&" WMFC P2',H22 T4' ; UU@v@ QLsupport this bill, who, I am quite convinced, are probably acting in good faith. '2222!2'2H22-N22,,2222,,2,",2"22,20,,3121222!,2 Tt  UU@v@ \LUnfortunately, the best intentions in the world do not always translate into good decisions H2!2!22,,02,3,'2,222'22,H2!22222,H.0'!,2',,2212222-,'22' T ~ UU@v@g Lpon public policy.U 22222,22-0TT ~ UU@v@g LP - Tp eUU@v@NLXBill CBCTT eUU@v@NLP-!T B eUU@v@N"L232 proposes to impose, for the fi2222!222','2N22',!2!2,!TDC {eUU@v@C N)Lrst time in Canadian history, individual !'N,2C,2,2,22'2"022322, TpgUU@v@[Lbilingualism as a prerequisite for serving in a Canadian federal institution. That is very 2212,'N,',2!-!,23',!2!',!2312,C,3,2,2!,3,!,2'222=2,'2,#0 TpKUU@v@4[Ldifferent from requiring federal institutions to provide the Canadian public with services U 2!!,!,2!!2N!,22!31",2,!,2'222'22!222,2,C,2,2,2222,H2',!2,,' TMUU@v@!Lin both official languages, a reqU 22222!!,,,312-1,(,!,2T\MUU@v@-Luirement that stems from our constitutionally2",N,22,',N'!!2N22!,22'222,0TTMUU@v@LP-"TMUU@v@ Ldentrenched -2!,3,2,2 Tt1UU@v@\Llanguage rights, from our federal legislation on official languages and from our linguistic ,213-1,!12'!!2N22"!,2,",-1',22222!",,,213-1,',22!!2N22!212', T3=UU@v@ L`policies.U 22,,'TT>3jUU@v@>LP - TpUU@v@uLX(1750)!2222"TT%UU@v@uLP - ThtUU@v@]ZLI remind senators that this bilingualism scenario would not apply to just any institution; !,N22',2,2!'2,2'2212,'N',,2,!2I22222,22022',312'221TTtUU@v@]LP T`tUU@v@]LTit  TPv UU@v@+Lwould apply to the Supreme Court of Canada.H222,22022,822!-N,C22!2!C,2,2,TT vH UU@v@ LP - Th]UU@v@ZLNo Canadian has ever been refused the right to work in a federal institution, such as the H2C,2,2,22,',2,!3-,2!,!2(,22,!122I2!22,!,3,!,2'222'2,2,'2, TpAUU@v@*[Larmy, the judiciary, the public service, the RCMP, Parliament, or any institution, because ,!O03,22,,#02,322,',!2,,2,CCY88,!,N,22!,402'2222,,,2', TC+UU@v@Lthey were not bilingual. T&WMFCPh2-0I,!,222312,=2T,C& UU@v@,Ley have not been refused.-03,2,222-,2",!2(,2TT' CS UU@v@' LP - T+ UU@v@FLThe Official Languages Act is clear on this subject. Section 2 states:=2,H!!,,<,312-2,'H,',,,!222''22-,8,,222',,'TT + UU@v@ LP i- T\UU@v@mXLThe purpose of this Act is to. . .ensure respect for English and French as the official =2,22!22',2!2'I,'2,2'2!,!,'3,,!3!=21'2,227!,3,2,'3,2!!,, TUU@v@GLlanguages of Canada and ensure equality of status and equal rights and ,213-1,'2!C,3,2,,23,2'2!,,23,02!',2',22,22,!12',22TUU@v@Lpprivileges as to 2!2,2,','2 THjUU@v@S*Ltheir use in all federal institutions. . .2,!2',2,!,2-!,2(222'TTjUU@v@SLP -% % 666666666666666666666666666666666666 6 66 6  6 66 6  6 66 6  6 66 6  6 66 6 66666666666666666666  c."System?????????????--@Cambria--- 6_:2 mZcDebates of the Senate (Hansard)   2 m)c  @Times New Roman---72 Zc3rd Session, 40th Parliament,d  2 c )2 ZcVolume 147, Issue 74  2 c 12 ZcTuesday, December 7, 2010e   2 c @Times New Roman---%2 ZcSupreme Court Act    2 c @Times New Roman---2 Z cBill to Amend   2 c 2 cSecond Reading  2 c #2 !cDebate Continued   2 c @Times New Roman---2 Z cOn the Order:  2 c 2 -ZPcResuming debate on the motion of the Honourable Senator Tardif, seconded by the   d2 ;Z;cHonourable Senator Rivest, for the second reading of Bill C 2 ;yc-"2 ;}c232, An Act to  2 ; camend the  a2 IZ9cSupreme Court Act (understanding the official languages).   2 Isc ---_2 eZ8cHon. Gerald J. Comeau (Deputy Leader of the Government):      --- 2 ec +2 ecHonourable senators, hm2 sZAclet me begin by saying that I do not doubt for a moment the good s   /2 scintentions of those who  2 ZQcsupport this bill, who, I am quite convinced, are probably acting in good faith.   2 Z\cUnfortunately, the best intentions in the world do not always translate into good decisions   %2 Zcon public policy.s 2 c 2 ZcBill C 2 wc->2 {"c232 proposes to impose, for the fi I2 )crst time in Canadian history, individual . 2 Z[cbilingualism as a prerequisite for serving in a Canadian federal institution. That is very  2 Z[cdifferent from requiring federal institutions to provide the Canadian public with services   =2 Z!cin both official languages, a reqiO2 -cuirement that stems from our constitutionally    2 c-2  centrenched 2 Z\clanguage rights, from our federal legislation on official languages and from our linguistic   2 Z cpolicies.d 2 c 2 Zc(1750) 2 zc 2 5ZZcI remind senators that this bilingualism scenario would not apply to just any institution;    2 5c 2 5cit 5L2 BZ+cwould apply to the Supreme Court of Canada.l  2 B6c 2 ^ZZcNo Canadian has ever been refused the right to work in a federal institution, such as the 2 lZ[carmy, the judiciary, the public service, the RCMP, Parliament, or any institution, because     42 zZcthey were not bilingual. Th 12 zcey have not been refused.T 2 zVc t2 ZFcThe Official Languages Act is clear on this subject. Section 2 states:  2 c 2 ZXcThe purpose of this Act is to. . .ensure respect for English and French as the official v2 ZGclanguages of Canada and ensure equality of status and equal rights and %2 cprivileges as to sJ2 Z*ctheir use in all federal institutions. . . 2  c --ccccccbbbbbbbbbbbbbbbbaaaaaaaaaaaaaaaa՜.+,0 hp|  *R  Debates of the Senate (Hansard)7 3rd Session, 40th Parliament, Volume 147, Issue 74 Tuesday, December 7, 2010 Supreme Court Act6 Bill to AmendSecond ReadingDebate Continued TitreTitres  !"#$%&'()*+,-./012345789:;<=?@ABCDEFGHIJKLMOPQRSTUVWXYZ[\]^_`abcdefghijklmnopqrstuvwxyz{|}~Root Entry FYData 61Table>WordDocument4jSummaryInformation(N\uDocumentSummaryInformation8CompObjy  F'Document Microsoft Office Word 97-2003 MSWordDocWord.Document.89q