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French Language Services Bench and Bar Advisory Committee to the Attorney General of Ontario

June 25, 2012

The Honourable John Gerretsen

Attorney General of Ontario
McMurtry-Scott Building
11th Floor
720 Bay Street
Toronto, ON M5G 2K1

Dear Attorney General,

Over the last 35 years, successive governments have expanded the right to French language services in Ontario’s court system. Those rights are broad and comprehensive. Much effort and investment has gone into developing and implementing them, and the courts, Ministry of Attorney General, and other participants in the justice system, have exhibited goodwill and a commitment of resources in this regard. The Ministry of Attorney General’s Strategic Plan for the Development of the French Language Services in Ontario’s Justice Sector, is particularly noteworthy.

This report sets out a road map to make the improvements necessary to allow the justice system to function as it is intended, and as it needs to function, if there is to be effective and meaningful access to justice in French in Ontario. The French Language Services Commissioner recently reported that there continue to be obstacles that make access to justice particularly difficult for French speakers in Ontario. Many key participants in the justice system, including judicial officials, court staff, and lawyers, are unaware of these obstacles. As a result, the justice system is not as responsive as it could be in addressing the rights and needs of Ontario’s French-speaking community and in ensuring meaningful access to justice in French.

Solutions lie with the Ministry of the Attorney General and other relevant partners, participants, and stakeholders, including the Government of Canada, the judiciary, and the legal profession. The creation of the French Language Services Bench and Bar Advisory Committee to the Attorney General represents a unique collaborative opportunity for key participants and partners in the administration of justice to address access to justice for French speakers in Ontario.

The committee is conscious of the fact that this report is being delivered at a time when the province is facing significant economic challenges. The recommendations made do not require costly investment or broad new initiatives. Rather, they are focused on the coordination of existing resources and improving communication between the various participants in the justice system. In many cases, the recommendations support initiatives that are already underway.

This report is about doing things better and in several respects it will save money, time, and frustration. The report also offers opportunities for new ways of thinking and for improved planning by those involved in the various parts of our justice system. By implementing these recommendations, the Attorney General will bring about tangible and positive change to the delivery of French language services in the justice system. These changes will enhance access to justice for the French-speaking population, improve the public’s perception of how justice is delivered, and increase the confidence of French speakers in the justice system. The initiatives proposed also contribute more broadly to advancing the interests of the French language minority community in Ontario by enhancing the protection provided by statutory language rights.

Respectfully,

Co-chairs of the French Language Services Bench and Bar Advisory Committee

Justice Paul Rouleau
Paul Le Vay

Table of Contents

  1. French Language Services Bench and Bar Advisory Committee
  2. List of acronyms and abreviations
  3. Executive summary
  4. Part 1: Introduction
    1. 1.1 Committee background
    2. 1.2 Structure of the report
  5. Part 2: French language rights and access to justice in Ontario
    1. 2.1 French language rights
      1. Criminal Code
      2. Courts of Justice Act
      3. French Language Services Act
    2. 2.2 Access to justice
    3. 2.3 Objectives for ensuring access to justice in French for French speakers
      1. Service Objective
      2. Active Offer Objective
  6. Part 3: Committee mandates
    1. 3.1 Methodology
  7. Part 4: Findings and recommendations
    1. 4.1 Summary of the Committee's findings
    2. 4.2 First mandate – Increasing the knowledge of the judiciary with respect to language rights in the justice system
      1. 4.2.1 At present the judiciary may not be adequately informed of French language rights
    3. 4.3 Second mandate – Addressing the shortage of bilingual members of the judiciary in Ontario
      1. 4.3.1 Laws governing French language rights do not ensure that all points of contact along the chain of a proceeding are in French
      2. 4.3.2 Proceeding in French can be difficult, time-consuming and expensive
      3. 4.3.3 Procedures under the POA do not allow for seamless and easily accessible French language services.
      4. 4.3.4 The linguistic abilities, number, and placement of bilingual judges and justices of the peace is not necessarily determined in accordance with the need to ensure equal access to justice for French speakers
      5. 4.3.5 There is a need for greater coordination of bilingual court staffand enhanced awareness by all court staff of French language rights
      6. 4.3.6 There is a need for greater coordination within MAG, and between the judiciary and MAG, regarding the delivery of French or bilingual proceedings on a regional and provincial basis
      7. 4.3.7 There is inadequate coordination of the delivery of French or bilingual proceedings with the legal profession
  8. Part 5: Conclusion
  9. Part 6: Summary of recommendations
  10. Appendix: Bilingual judicial statistics

French Language Services Bench and Bar Advisory Committee

Co-Chairs

Members

Resource Support

List of acronyms and abreviations

Executive Summary

Overview and Mandate

Access to justice in French is a right Ontarians have enjoyed for over 30 years. It has been described as a quasi-constitutional right and it is articulated in s. 530 of the Criminal Code[6].

Despite the longstanding and well-entrenched nature of these rights, in 2009, the FLS Commissioner, François Boileau, reported receiving a number of complaints related to the difficulty of accessing justice in French. In response, the Attorney General formed this Committee to address two mandates:

  1. recommend ways to actively increase the knowledge of all members of the judiciary in Ontario regarding French language rights in the justice system; and
  2. propose concrete and concerted steps to address the shortage of bilingual judges in Ontario.

The Committee’s Approach

In this report, the Committee seeks to identify what needs to be done to improve access to justice for French speakers in Ontario. This requires, first, that the necessary resources be coordinated to permit the justice system to provide services in the French language equal in quality to the services provided in English. Second, those services must be actively offered to a public that is properly informed of its right to access the justice system in French.

The Committee’s task was made more difficult by the absence of reliable statistics respecting the provision of French language services in Ontario’s justice system. Accordingly, the Committee relied primarily on an extensive review and consultation with key stakeholders, as well as the content of individual complaints made to the FLS Commissioner. A detailed discussion of the Committee’s methodology is presented in section 3.1.

The Committee’s Findings and Recommendations

The Committee’s findings and recommendations should be prefaced by acknowledging the sustained efforts at all levels of court, and within MAG, to actively offer French language services in Ontario. While these efforts are not the focus of this report, the Committee’s findings and recommendations should not be viewed as reflecting a lack of commitment, or effort, on the part of the courts, or MAG. Although the Committee has identified significant issues in the provision of French language services, in many respects, the recommendations made in this report support important initiatives already undertaken, such as MAG’s Strategic Plan for the Development of the French Language Services in Ontario’s Justice Sector.[7]

The Committee’s conclusion that accessing justice in French in Ontario can be more difficult, time consuming and expensive than accessing justice in English is central to the report. There is also concern regarding the quality of French language services.

With respect to its first mandate, the Committee found that, the judiciary may not be adequately informed of French language rights. All members of the judiciary should be made aware of their obligation to inform litigants of their language rights and should know what those rights entail. This can be accomplished through education and the provision of written material.

With respect to its second mandate, the Committee found, first, that French language rights do not ensure that all points of contact during the course of a proceeding are in French. All persons who are parties to court proceedings should be made aware of their right to services in French at the earliest opportunity. All points of contact along the chain of a judicial proceeding (including those with court staff, clerical staff, trial coordinators, lawyers, and judges or justices of the peace) should be examined to ensure that French language services are delivered consistently, and at an acceptable level.

Second, proceeding in French can be difficult, time-consuming and expensive. Legislative gaps in the provision of French language services should be closed, particularly those that occur at the point of first contact between the litigant and the legal system. This may include adopting policies that expand the provision of French language services beyond what is statutorily required (for example, by providing consistent access to bail hearings in French). This will alleviate delays and consequent additional costs.

Third, the procedures under the POA[8] do not allow for seamless and easily accessible service in French. MAG must continue to work together with municipal partners (i.e., municipalities that administer the POA Court system), police services, the legal profession, court users, and the judiciary to implement procedures that ensure access to French language services in POA proceedings.

Fourth, the linguistic abilities, number, and placement of bilingual judges and justices of the peace are not necessarily determined in accordance with the need to ensure access to justice for French speakers. For each region, and at every level of court in Ontario, bilingual judges and justices of the peace must be available to hear proceedings and render decisions in a timely manner in French. The linguistic abilities of a judge or justice or the peace who presides in a bilingual or French proceeding should be equivalent to the abilities of a judge or justice of the peace who presides over cases in English. Objective evaluation of bilingual candidates would allow for a clear metric of linguistic ability.

Fifth, there is a need for a greater coordination of bilingual court staff and enhanced awareness of French language rights. MAG should develop procedures to ensure the timely and seamless provision of services in French and ensure that an appropriate complement of bilingual staff is available going forward.

Sixth, there is a need to improve coordination within MAG, and between the judiciary and MAG, regarding the delivery of bilingual or French proceedings on a regional and provincial basis. This coordination effort requires clearly-defined responsibilities. MAG should designate a divisional French language services coordinator within the CSD for the province, and consider designating a person in each region to coordinate French language services. The Chief Justices may wish to consider designating a judge in each region and at each level of court, and a justice of the peace in each region at the Ontario Court of Justice, to be responsible for French language or bilingual proceedings and to liaise with the CSD coordinator. The CSD should develop clear and measureable targets for French language services.

Seventh, there is inadequate coordination of the delivery of bilingual and French proceedings with the legal profession. Since the legal profession is self-regulating this issue requires cooperation from the Law Society, law schools, lawyers’ associations, and MAG. Together, efforts should be made to educate and assess lawyers’ knowledge of language rights, increase the number of lawyers able to provide French language services, and improve the accessibility of these services to French speakers.

Part 1: Introduction

For almost thirty years, French and English have been the official languages of the courts in Ontario. Litigants before the courts who speak French are entitled to have their cases heard and decided by a judge, or justice of the peace, who understands them in that language. Statutory rights granting access to justice in both official languages are tangible manifestations of bilingualism and are fundamental to the fabric of our nation.[9] However, these rights are only as strong and meaningful as the methods in place to ensure that they can be exercised.

This report focuses on the steps necessary to ensure that French speakers have meaningful and effective access to justice in French in Ontario while making the most efficient use of existing resources. The Committee’s recommendations are targeted at bringing about needed improvements to access to justice in French.[10]

In large part, the recommended changes can be implemented at little or no additional cost to the province. They simply require more effective use of existing resources and stronger accountability mechanisms to ensure compliance with French language rights. Implementation of the Committee’s recommendations should result in fewer court appearances for those exercising French language rights, which will decrease costs and delay. In the criminal sphere, these recommendations will contribute to achieving the goals of Justice on Target.[11]

1.1 Committee Background

In his second annual report, published in October 2009, the FLS Commissioner reported receiving a number of complaints related to access to justice for French speakers in Ontario.[12] As was noted in the annual report of the Office of the Commissioner of Official Languages, published in 2001, “une plainte isolée représente parfois la pointe de l’iceberg”, an isolated complaint is sometimes the tip of the iceberg.[13] People generally are not inclined to complain, so for each complaint received there are likely many other people who have encountered difficulties. However, complaints in the context of language rights can be both an expression of exasperation, and a sign of hope that individual protests will help to advance the notion of equality of French and English in government institutions.

Some of the complaints received by the FLS Commissioner related to a lack of bilingual judges, or justices of the peace, as well as inadequate knowledge of linguistic rights on the part of the judiciary.[14] Other complaints involved shortcomings related to the delivery of services in bilingual or French proceedings, including a lack of coordination between the judiciary and courts’ administration.[15] In response, the FLS Commissioner recommended forming a committee of stakeholders in the justice system to:

  1. 1) recommend ways to actively increase the knowledge of all members of the judiciary in Ontario regarding language rights in the justice system; and
  2. 2) propose concrete and concerted steps to address the shortage of bilingual judges in Ontario.[16]

In early 2010, the Honourable Christopher Bentley, then Attorney General, formed the Committee to address these two issues. The Committee is co-chaired by Justice Paul Rouleau of the Court of Appeal for Ontario and Paul Le Vay, a lawyer and Vice-President of the AJEFO. There are Committee representatives from all levels of the judiciary in Ontario, the Judicial Appointment Advisory Committees for the Ontario Court of Justice and Justices of the Peace, the bar, the Law Society, and MAG.

The Committee concluded that there is a need for: (i) improved coordination of French language services; (ii) better communication of French language rights; and (iii) clearly-defined responsibilities in the provision of French language services. The recommendations set out in Part 4 of this report reflect these conclusions.

1.2 Structure of the Report

The report is divided into six parts. In Part 2, we describe statutory French language rights in Ontario in a contextual manner and then discuss the broader issue of access to justice. We use two examples to demonstrate the critical nature of access to justice concerns experienced by French speakers. Finally, we set out two objectives – “service” and “active offer” – which guide access to justice initiatives in the context of minority language rights.

In Part 3, we return to the Committee’s two specific mandates[17] and explain the methodology used in the analysis that follows.

In Part 4, we present findings and recommendations in response to each of the Committee’s mandates. First, we consider how to actively increase the knowledge of all members of the judiciary in Ontario with respect to language rights in the justice system. Second, we propose concrete steps to address the concern that there is a shortage of bilingual judges and justices of the peace in Ontario.[18]

Finally, in Parts 5 and 6, we conclude and provide a consolidated summary of our recommendations.

Part 2: French language rights and access to justice in Ontario

2.1 French language rights

French and English are Canada’s two official languages and the official languages of Ontario’s courts. Official language rights are fundamental “to the continued viability of the nation.”[19] The vitality of a language and the identity and culture of the people speaking it go hand in hand. Language is “the means by which individuals understand themselves and the world around them.”[20]

In Ontario, French is the minority official language. The purpose of minority language rights is to preserve and promote the official language minority and its culture by creating conditions that allow the linguistic minority community to flourish.[21] To achieve this purpose, French language rights must be interpreted generously and purposively, “in a manner consistent with the preservation and development of official language communities.”[22] In particular, language rights must be interpreted with a view to preserving cultural inheritance and ensuring cultural security.[23] Interpreted in this way, minority language rights have the power to promote the linguistic minority’s participation in public life.

Although the rights granted by these three statutes are intended to provide access to justice that is as effective in either official language, the gradual process by which they were created, and then expanded – “étapisme” as it’s called in French – has created inconsistencies and gaps in the legislative scheme. Statutory French language rights are also limited in certain areas of the province.[24] This makes it difficult to coordinate, plan, manage, and deliver French language services.

What follows is a brief overview of statutory French language rights in Ontario’s justice system.

Criminal Code

The Criminal Code outlines the language rights of the French-speaking accused and specifically confers a substantive right for the accused to be tried in his or her official language, provided that he or she makes the application within the prescribed time.[25] More specifically, s. 530 sets out the procedure whereby an accused can elect to be tried before a court in which the justice of the peace, judge, or judge and jury, speak the official language of the accused, or both official languages.[26]

Courts of Justice Act

Section 125(1) of the CJA provides that French and English are the official languages of the courts of Ontario. However, English is the usual language of the courts, with French being the exception. Except as specifically provided, hearings in courts are to be conducted in English and documents are to be filed in English or accompanied by a certified translation of the document into English.[27]

Section 126(1) does not provide a party with a substantive right to a proceeding in French.[28] Rather, it gives a French-speaking party to a court proceeding the right to “require that it be conducted as a bilingual proceeding.”[29]

Section 126(2) sets out the substantive rights applicable to a bilingual proceeding. Although this subsection provides that a bilingual proceeding will be heard by a judge or officer who speaks both French and English, a hearing held before a bilingual jury is only available in areas named under Schedule 1 of the CJA. Further, s. 126(2) provides that French documents may be filed by a party to a proceeding in the Family Court of the Superior Court of Justice, the Ontario Court of Justice and the Small Claims Court; this right applies anywhere in Ontario. However, in other types of Superior Court proceedings, the right to file pleadings and other documents in French is only available in an area named in Schedule 2 of the CJA.[30] In other areas of the province, French pleadings and other documents can only be filed with consent of the other parties to the Superior Court proceeding.

French Language Services Act

The FLSA ensures that public services are provided in French from any head or central office of a government agency or institution and in respect of any other office of such agency or institution that is located in, or services, an area designated in the Schedule.[31] In respect of the justice system, the statute governs a person’s right to services in French from MAG’s court administration offices located in, or serving, a designated area. These services include obtaining information about the justice system, initiating processes, filing court documents, and obtaining return dates.

To obtain these services in French, the area in which the court is located must be designated under the FLSA. For an area to receive a designation, French-speaking residents must make up at least 10 per cent of the population or, in the case of urban centres, the number of French-speaking residents must exceed 5,000.[32] There are currently 25 designated areas.[33] Approximately 85 per cent of French-speaking Ontarians live in these designated areas (most major metropolitan centers, including Toronto, are designated).[34] French speakers who do not live in a designated area are entitled to obtain services in French by contacting the central office of MAG, or a branch office in a designated area.[35]

In July 2011, Ontario Regulation 284/11 came into effect.[36] The new regulation mandates that ministries institute measures to ensure that third parties providing services on their behalf[37] are compliant with the FLSA and adhere to the active offer principle.[38]

2.2 Access to justice

“Access to justice” is a phrase used liberally and frequently. However, we must not lose sight of its importance. In 2008, Chief Justice Winkler stated that:

Everyone favours “access to justice”.... But like so many other words or expressions, the phrase has become so commonplace that the urgency of its meaning has tended to become blunted or worn. We cannot allow “access to justice” to become a cliché, devoid of meaning and significance. We must redouble our efforts to open up our system of justice so that it serves the needs of ordinary Ontarians with real life problems. What we require is action and innovation, not platitudes. [39]

In the context of Ontario’s justice system, achieving the purpose for which minority language rights were created requires equal access to justice in French for French speakers in Ontario. In Beaulac, the Supreme Court of Canada explained that the purpose of language rights under the Criminal Code is to “provide equal access to the courts to accused persons speaking one of the official languages of Canada in order to assist official language minorities in preserving their cultural identity.”[40]

Equal Access to Justice Defined

In this report we define “equal access to justice” as meaning that the French linguistic community has the right to receive services in French, in a timely way, and in a manner that does not result in greater cost than for those who receive such services in English. The judge, or justice of the peace, must understand the nature of the right to a French, or bilingual, hearing and, if they preside over bilingual or French hearings, must be able to interact in French as well as those judicial officials who preside over English language proceedings.

The Committee found that all participants in the justice system are open to enhancing access to that system in the French language. However, there is limited awareness of the difficulties faced by French speakers who wish to proceed in French and there is no clear metric of what constitutes equivalent services to those available in English.

Most French speakers in Ontario understand some English. However, this does not mean that they are as comfortable speaking English as they are speaking French. The current structure of the justice system limits the ability of the French-speaking population to obtain services in French without experiencing procedural difficulties and incurring additional cost and delay. The concern is that a French speaker is then faced with the choice between proceeding in his or her preferred language (and experiencing additional cost and delay), or proceeding in English. The choice is obvious for most bilingual court users. They will choose to proceed in English.[41] However, the choice is more difficult for the nearly 50,000 Ontarians who speak French and not English. If they proceed in English, they will require translation to be able to follow the proceedings and communicate with the court. Two examples serve to illustrate access to justice concerns.

Example 1: French language rights and access to justice in a criminal proceeding

In criminal matters, many accused people do not know that they have a right to a French trial until their first court appearance. Most often, the first appearance will not take place before a bilingual adjudicator. If the accused chooses to exercise his or her French language rights, the case will likely have to be adjourned causing financial consequences for the individual and further delay.[42] The accused may also view requesting an adjournment as an indication that he or she is less than fully cooperative. Thus, French speakers who speak English are likely to choose to proceed in English, rather than exercise their French language rights.

Example 2: French language rights and access to justice in a civil proceeding

In this example, a lawyer told the Committee that he had prepared all of the materials in French for a pre-trial conference in a bilingual proceeding and travelled to a distant northern community for the pre-trial hearing. At the pre-trial hearing, a unilingual English-speaking judge advised the parties that a bilingual judge was not available that day. The judge offered to either proceed in English on the day scheduled, or preserve the litigant’s right to a bilingual pre-trial by adjourning the matter to another day. The litigant chose the former option out of practical necessity, despite the fact that the judge could not read the pre-trial materials submitted in French.


The Committee also understands that many French-speaking lawyers feel compelled to inform their French-speaking clients that proceeding in French could have detrimental effects, including delay, and additional costs.[43]

The justice system must be alive to the various challenges faced by those who would avail themselves of services in French. Access to justice for the French language minority community requires actively offering French language services, and ensuring that French language rights can be exercised effectively and efficiently in the justice system. These objectives are discussed in the next section.

2.3 Objectives for ensuring access to justice in French for French speakers

Two objectives are essential in order to achieve equal access to justice for those who elect to proceed in French. First, there must be a service objective that ensures litigants receive services of an equivalent quality to those provided in English. This includes ensuring that litigants may proceed in French from the outset, and for the duration of a proceeding, without greater cost or delay than proceeding in English. Second, the judiciary, court administration, the legal profession, and law enforcement officers must ensure the active offer of French language services to court users.

Service Objective

The Committee’s research and consultations[44] revealed that, at present, there is no clear and coherent French language “service objective” in the justice system.[45]

Setting a clear and coherent service objective has the benefit of allowing the various players in the justice system to develop a plan and measure success against tangible benchmarks. The scope of a French language service objective, and the consistency with which it is achieved, provides information that is critical to a French speaker’s decision to proceed in French or in English. The Committee is of the view that the problems identified by the FLS Commissioner will continue unabated if the service objective is defined as simply ensuring that an individual requesting services in French will, at some point, receive those services.

As a starting point, MAG and other players in the justice system should adopt the following French language service objective: the choice to proceed in French must be offered at the earliest possible opportunity and, once the decision is made to proceed in French, it should not involve a greater cost or delay than proceeding in English. The service in French must also be provided consistently and be of equal quality to that available in English.

To achieve this objective, services must be adapted to the needs of the French-speaking community and efforts must be made to continue to reach and involve that community in the development and implementation of French language services.[46] This will mean different approaches in different areas of the province. For example, in areas where the French-speaking population is small, some matters in French might be dealt with electronically rather than in person.[47] Electronic service has certain limitations as compared to in-person service. However, it would make French language services available, without additional cost or delay, to a larger population of French speakers, at an early stage in the proceeding.

The Government of Ontario is committed to offering French language services equivalent to those services available in English. However, in order to achieve this goal, the Government of Ontario needs to ensure that its French language services objective is clear and adequate, and that achievement of that objective is clearly measureable. In other words, there needs to be a method to determine whether French language services objectives are being achieved.

Active Offer Objective

Active offer refers to government measures that ensure that French language services are clearly visible, readily available, easily accessible, publicised, and of a quality equivalent to services offered in English.[48] Active offer includes the initiation of communication with the public in French as well as measures such as the provision of signs, notices and other information about services in French.

Active offer is consistent with the principles of the FLSA.[49] Specifically, French language services must be of high quality and access to them must be universal. The Government of Ontario has committed to delivering French language services based on the concept of active offer.[50] However, many improvements are necessary to ensure that true “active offer” is achieved. Thus, the Committee recommends that the justice system continue to improve on its commitment to the “active offer” objective.

A recent study commissioned by MAG, entitled From Theory to Practice: Mechanisms for the Offer of French Language Services in Ontario’s Justice Sector[51], examined the mechanisms of offer that are best adapted to respond to the needs of French speakers and the factors that encourage, or limit, French speakers from using French language services. The study concludes that actively offering services in French is critical to creating an environment that is conducive to the exercise of the right to access services in French.

Thus, it is up to the Government of Ontario to maintain the Justice Sector’s credibility by more actively communicating to the Francophone population that it is serious about its obligations towards them and that offering good service in French is important to the government. These measures should lead the government to further develop the culture of FLS in the Justice Sector and contribute to achieving better results. [Emphasis added.][52]

This recurring theme of active offer has been commented on by the FLS Commissioner. In 2010, he made a recommendation to the Management Board of Cabinet that a clear policy directive with respect to French language services be put in place in the Ontario Public Service.[53] In a May 2011 investigation report,[54] the FLS Commissioner concluded that:

The OPS is effective at fulfilling its responsibility under the French Language Services Act when Francophone members of the public are informed about available services in French, have access to these services, and are satisfied with the quality of these services.[55]

The Strategic Plan, first undertaken in 2006, builds the foundations for an active offer of services in French. However, further efforts are necessary to change the perception of French speakers regarding the availability and quality of services in French and ensure that use of those services becomes second nature.

Given the overall objective of improving access to justice for French speakers, all participants in the justice system must ensure that French speakers are informed about available services in French at the earliest possible point in the process, have access to those services, and are satisfied with the quality of service available. The earlier a request for French language service is acknowledged and entered into the system, the better and more satisfactory the response will be to the user.

With service and active offer objectives in mind, we return to the specific mandates of the Committee in the remainder of the report.

Conclusion and Recommendations

Without an active offer of French language services in the courts of Ontario, and a clear service objective, French speakers may not be able to access equal French language services and feel truly comfortable in a system designed for English speakers.

The Committee recommends that:

  1. The Attorney General:
    • Adopt a clear and coherent service objective for MAG. The objective should be to provide equal access to justice for the French-speaking community. This means that the French-speaking community has the right to receive services in French, in a timely way, in a manner that does not result in greater cost, and that is of a quality equal to the standard expected in English language proceedings.
    • Recommit to delivering French language services based on the concept of active offer.

Part 3: Committee mandates

As we explained in Part 1, the Attorney General has tasked the Committee with two mandates:

  1. recommend ways to actively increase the knowledge of all members of the judiciary in Ontario regarding language rights in the justice system; and
  2. propose concrete and concerted steps to address the shortage of bilingual judges in Ontario.

The first mandate relates to the language rights knowledge of all members of the judiciary, whether or not they are bilingual. After describing one complaint by a French-speaking court user who requested a bilingual proceeding but appeared before an English-speaking judge who was unfamiliar with French language rights, the FLS Commissioner commented as follows:

A judge asking a French-speaking citizen if he also understands English is light years away from a judge actively offering a citizen his rights. As a result, the Francophone citizen loses confidence in the justice system in French. This has a direct impact on him, because he loses the possibility of a hearing in the language in which he is most comfortable. It also sends a message to the rest of the Francophone community that, although these rights exist, they cannot really be exercised. This undermines the purpose of the French Language Services Act, which is to preserve Ontario’s Francophone community for future generations.[56]

The FLS Commissioner’s report demonstrates that some members of the judiciary remain unaware of language rights, despite a clearly worded description of the judiciary’s responsibility in this regard by the Court of Appeal for Ontario:

English and French are the official languages of the courts in Ontario, and the court has a responsibility to ensure compliance with language rights under s. 126 of the Courts of Justice Act. A proper interpretation of this provision is one that is consistent with the preservation and development of official language communities in Canada and with the respect and preservation of their cultures.... Violation of these rights, which are quasi constitutional in nature, constitutes material prejudice to the linguistic minority. A court would be undermining the importance of these rights if, in circumstances where the decision rendered on the merits was correct, the breach of the right to a bilingual proceeding was tolerated and the breach was not remedied. [Citation omitted; emphasis added.][57]

The Committee’s first mandate is concerned with ensuring that all judges and justices of the peace have the knowledge required to comply with this standard.

The Committee’s second mandate contains an embedded assumption that there are too few bilingual members of the judiciary in Ontario. There is no question that such a perception exists in the media[58] and among French speakers. It is also apparent that the FLS Commissioner and Canada’s Commissioner of Official Languages share this view. In an appearance before the House of Commons Standing Committee on Official Languages, Graham Fraser, the Commissioner of Official Languages, stated
“[t]he shortage of bilingual judges in the superior courts of the provinces and territories is one of the main barriers to access to justice in both official languages.”[59]

However, in the course of its work,[60] the Committee determined that, absent more statistical data, it could not confirm that there was a shortage of bilingual judges and justices of the peace, or that simply adding to the complement would resolve all of the issues identified. Rather, the Committee examined the reasons why stakeholders frame the issue in this way, and considered possible explanations for the perceived shortage. It was necessary to step back and take this more holistic approach in order to answer the question posed by the Attorney General.

Two contrasting items reviewed by the Committee illustrate the need for this approach. First, the Superior Court of Justice reported that 52 of the Court’s approximately 300 judges were bilingual, while only approximately 150 of some 200,000 new proceedings were heard in French in 2008.[61] Reporting these numbers in this manner clearly implies that the number of bilingual judges in Ontario is adequate to meet the demand. However, that is not the perception of the French-speaking public. There is a real disconnect between the courts and their users on this critical issue.[62] This disconnect is demonstrated by the fact that 93 per cent of respondents to a survey conducted by the AJEFO[63] agreed with the proposition that there are too few bilingual judges on the Superior Court of Justice.[64]

The importance of the issue at the heart of the second mandate, access to justice in French, also warrants the holistic approach taken by the Committee. Thus, the Committee’s recommendations address this more fundamental problem.

3.1 Methodology

In order to fully examine the issues raised by its two mandates, the Committee sought information from various justice system participants, including MAG and its municipal partners, the Commissioner for Federal Judicial Affairs Canada, the Ontario Court of Justice, the Superior Court of Justice, the Court of Appeal for Ontario, the Judicial Appointments Advisory Committee, the Justice of the Peace Appointments Advisory Committee, the National Judicial Institute, the AJEFO, and the Law Society.

To address its first mandate, relating to the judiciary’s knowledge of language rights, the Committee formed a working group to meet with representatives from each Ontario court. The court representatives provided a thorough analysis of existing education mechanisms on linguistic rights.

The working group compiled information relating to the resources and education opportunities on French language rights available to all federally and provincially appointed English-speaking and bilingual judges and justices of the peace. This information formed the basis of the Committee’s observations regarding the judiciary’s delivery of services in French.

In summary, the Committee:

To address its second mandate, relating to the perceived shortage of bilingual judges and justices of the peace in Ontario, the Committee requested statistics regarding the volume and pattern of French language use in the justice system from MAG. The Committee was informed that, at present, MAG does not have comprehensive and reliable statistics.[65]

The Committee reviewed the complaints made to the FLS Commissioner and forwarded to it by the CSD, as well as the results of the AJEFO survey. The Committee also established a working group to analyse certain types of bilingual proceedings from their inception to their conclusion.

At the request of the Committee’s Co-Chairs, MAG established a research team in order to assist the Committee in understanding the steps in bilingual proceedings. The research team was comprised of representatives from MAG, the judiciary, and a team of POA Court managers.

With the assistance of the research team, the Committee analysed cycles of bilingual proceedings[66] for criminal law and family law, as well as for provincial offences administered by POA Courts on behalf of the province. The analysis included each court process, pertinent legislation, resources required to complete the process efficiently, identification of gaps, and potential solutions.

Based on the information gathered from justice system participants and various reports on French language rights and services, the Committee identified one issue related to its first mandate, and seven issues related to its second mandate. The Committee then formulated recommendations related to each issue. The recommendations seek to improve access to justice with a view to achieving the French language service and active offer objectives set out above. The Committee’s findings and recommendations are presented below, in Part 4.


Part 4: Findings and recommendations

4.1 Summary of the committee's findings

With regard to its first mandate, the Committee found that the judiciary may not be adequately informed of French language rights. In order for a bilingual justice system to operate properly, adequate knowledge of French language rights is essential for all judicial officials, whether or not they are bilingual. If some members of the judiciary do not fully understand language rights, there is little hope that the justice system will achieve equal access to justice in French. Potential solutions and the Committee’s recommendations on this point are found in Section 4.2.

With regard to the second mandate, the Committee found that a number of factors reduce access to justice in French and contribute to the perception that there are not enough bilingual judges and justices of the peace in Ontario. Specifically, when proceedings were biligual or in the French language, access to justice was frequently slower and more costly than if the proceedings had been undertaken in English.

French-speaking litigants who expected to be served and heard in French, often found that they incurred extra cost and experienced delays. This explains, at least in part, why only a small fraction of the French speakers who come before the courts in Ontario choose to proceed in French.

The Committee made the following seven findings in relation to its second mandate:

Potential solutions and recommendations regarding these seven findings are presented in Section 4.3.

The Committee notes that, in the course of its work, it found many examples of timely access to justice, as well as excellent service in French, for the French-speaking community throughout the province. MAG and the Chief Justices at each level of court have done a great deal to advance the statutory rights of the French-speaking population in the justice system and have committed substantial resources to that end. Although this report does not chronicle these successes, it is important that we acknowledge them and those who are responsible for them.

In this respect, the five-year Strategic Plan initiative developed in collaboration with Francophone stakeholders to improve access to justice in French across the justice sector is of particular note.[67] The Strategic Plan includes:

This report should be seen as encouraging continued efforts to improve access to justice for French speakers, rather than as a criticism of what has already been achieved. The recommendations that follow serve as an opportunity to build on current achievements.

4.2 First mandate – Increasing the knowledge of the judiciary with respect to language rights in the justice system

The Committee observed that the judge or justice of the peace, as a powerful and sometimes first point of contact between a party and the justice system, has a critical role to play. In order for the judiciary to offer high quality services in French, adequate knowledge of French language rights is essential for all members of the judiciary, whether or not they are bilingual.

4.2.1 At present the judiciary may not be adequately informed of French language rights

(A) Understanding the Problem

Responsibility for judicial education programs rests solely with the judiciary. The National Judicial Institute and each court’s education committee are responsible for developing and delivering education programs to all judges in Ontario. The Ontario Court of Justice delivers education programs for Justices of the Peace.[72]

At the Court of Appeal for Ontario and the Superior Court of Justice, there is currently no program on French language rights, or the status of those rights. There is also no orientation on French language rights in the education program for new judges. In the past, a specific learning module on minority language rights was part of the education program for new judges. However, this module is no longer offered.

There is also no formal education program in French language rights for new judges at the Ontario Court of Justice.[73] However, in 2010, the Chief Justice of the Ontario Court of Justice sent a memorandum to all of the court’s judges and justices of the peace. This memorandum reminded judges and justices of the peace of their obligations regarding French language rights in criminal, family, and POA proceedings. It also reviewed the legislative provisions applicable to these proceedings.

The Advisory Committee on Education conducts the coordination, planning, and presentation of education programs for justices of the peace. This committee meets approximately four times per year to discuss matters pertaining to judicial education. It reports to the Associate Chief Justice of the Ontario Court of Justice.

The Education Plan[74] for justices of the peace of the Ontario Court of Justice integrates French language rights components in continuing education programs. During their annual conference in 2010, all justices of the peace attended a program on French language service obligations. The program was delivered by OCFLS staff and an experienced bilingual justice of the peace who discussed the legislation and provided advice relating to French criminal and bilingual POA proceedings.

The Justice of the Peace Advisory Committee on Education and the OCFLS developed a new education module for bilingual justices of the peace in the spring of 2011. The three-day curriculum included presentations on French language rights legislation and jurisprudence, mock POA bilingual proceedings, and workshops on legal terminology and the role of interpreters. POA Court managers and municipal prosecutors were invited to deliver presentations and share best practices with the justices of the peace.

The limited formal language rights education for judges suggests that the judiciary may not be adequately informed to respond to issues involving French language rights. Given the complexity of language rights in Ontario, absent education, judges and justices of the peace may not be aware of the extent of those rights sufficient to apply them, and to communicate them to litigants. This is particularly so in areas of the province where demand is low, and experience dealing with French-speaking litigants is limited. Judges and justices of the peace are often focussed on a person’s ability to participate in the process itself, and not necessarily on the person’s preference to proceed in French.

(B) Potential solutions

The judiciary should ensure adequate language rights education for all judges and justices of the peace. Several avenues are available.

The two-week New Judges Program at the Superior Court of Justice and the Ontario Court of Justice could incorporate information about language rights. The Justices of the Peace Education Plan should be recognized as an example to follow.

Language rights education programs should be specifically geared to adult learners. The National Judicial Institute has expertise in this field and could be asked to develop a module that could be used by the various courts. The National Judicial Institute could also be asked to integrate French language rights issues in the curriculum designed for other courses offered to judges.

An electronic Bench Book is available to all provincially and federally appointed judges. The section on French language rights was last amended in 2009. It should be updated to include information on additional French language resources available online and should be updated regularly. Specifically, all materials on jury charges should be available in French.[75]

Additional education and mentoring of newly appointed bilingual judges and justices of the peace could also be considered, accompanied by periodic updates on language rights and relevant case law.[76]

(C) Conclusion and Recommendations

In order for Ontario to offer high quality services in French, knowledge of French language rights is essential for all judges and justices of the peace, whether or not they are bilingual. If members of the judiciary do not fully understand French language rights, there is little hope that the justice system will achieve equal access to justice in French.The Committee therefore recommends that:

  1. The Attorney General propose to the Chief Justices of each level of court that:
    • Education in French language rights be (i) included as part of the program offered to all newly appointed judges and justices of the peace, and (ii) considered as part of the courts’ continuing education programs.
    • Appropriate resources with respect to French language rights (including Bench Books and online resources) be made available to all judges and updated on a regular basis.
    • A mentoring program be considered where newly appointed bilingual judges and justices of the peace are mentored by their experienced bilingual colleagues.

4.3 Second mandate – Addressing the shortage of bilingual members of the judiciary in Ontario

In great part, the judge or justice of the peace determines the level of French language services in his or her court. The Department of Justice reported that:

The presence of a bilingual judge especially has a ripple effect that is felt throughout the entire system, starting with his/her own court, and that encompasses his/her colleagues, other members of the legal system and the general public. [Emphasis added].[77]

The Committee’s review demonstrates that the linguistic abilities and availability of bilingual judicial officials are critical to access to justice for French speakers. These challenges are discussed in the following seven sections.

4.3.1 Laws governing French language rights do not ensure that all points of contact along the chain of a proceeding are in French

Understanding the Problem

The legislative regime governing language rights in the justice system developed gradually over several decades.[78] This explains, in part, why there are inconsistencies and gaps in the current legislative scheme. These disparities impede the effective coordination, planning and management of French language services in the Ontario justice system. They also present difficulties for lawyers and court users and create a perception that French language rights are not delivered in a consistent manner, or are not given equal status to English language rights in Ontario courts.

Inconsistency in designated areas under the French Language Services Act and the Courts of Justice Act

The designation of an area under the FLSA determines the right of French speakers to receive counter and other services outside the courtroom in French. Designation of an area under the CJA determines, among other things, the right of French speakers to a bilingual jury trial and to file documents in French. However, under the CJA, a litigant who speaks French also has the right to require that any proceeding in Ontario be conducted as a bilingual proceeding. This means that, at a minimum, the presiding judge must speak French and English. The right to a bilingual proceeding before a judge or officer is not limited to designated areas, it applies anywhere in Ontario.

The 23 designated areas under the CJA cover a larger geographic area than the 25 designated areas under the FLSA. Thus, court locations that are designated under the CJA are not necessarily designated under the FLSA. Additionally, the recent amalgamation of municipalities can make it difficult for the public to understand the boundaries of designated areas.

The different designations under these Acts make for inconsistent availability of French language services. For example, an individual may have the right to file documents in French in a civil proceeding pursuant to the CJA but find that no one at the counter is able to read the documents because the courthouse location has not been designated under the FLSA.[79]

This legislative inconsistency can have real and practical consequences for litigants. For example, when filing documents in English, court users generally rely on counter staff to review those documents to ensure that they are complete and in proper form. If they are not, problems may be remedied at the counter, thereby avoiding the need for a second trip to the courthouse. Where counter staff are not able to read documents in French, this helpful review service is not available.

Bail Hearings and Out-of-Court Services in Criminal Proceedings

Section 530 of the Criminal Code provides that a French-speaking accused can apply for a trial before a French-speaking, or bilingual justice of the peace, judge, or judge and jury.[80] It does not deal with the right to access counter services, and other court services, in French. Statutory rights to these services are determined by the FLSA. Further, the Criminal Code does not require that an accused be provided with a French language bail hearing.

For many accused, a bail hearing will be their first interaction in the court system. Subsection 530(3) of the Criminal Code provides that the provincial court judge, or the justice of the peace, before whom an accused first appears, must ensure that the accused is advised of his or her right to apply to have a trial in French or English. There is no legal right to a first appearance in French. However, in some cases, the court will allow a French-speaking accused to adjourn the bail hearing so that it can be heard by a bilingual judge, or justice of the peace. Even in those cases, the accused faces the choice of postponing his or her bail hearing (and remaining incarcerated) or proceeding in English. The bail hearing may also be the only appearance the accused makes.

Other Examples of French Language Service Gaps and Inconsistencies

There are inconsistencies that arise with respect to POA Court administration and the POA. These are discussed further in Section 4.3.3.

Other legislative gaps exist as well. For example, in family law matters before the Superior Court of Justice in Norfolk County, litigants cannot file documents in French unless the other party consents.[81] The filing of French pleadings and other documents is not available in the Superior Court of Justice in Norfolk County because the county is not a designated area under Schedule 2 of the CJA[82] and there is no Family Court of the Superior Court of Justice (i.e. Unified Family Court) in that county.[83] However, the same litigants can file their documents in French if the family proceeding is conducted in the Ontario Court of Justice because the CJA specifically allows for the filing of French documents.[84]

The purpose of the Bilingual Proceedings regulation[85], prescribed by the CJA, is to provide a directive with respect to the exercise of French language rights in civil litigation, family law, and small claims matters, as well as in proceedings under the POA. However, parts of this regulation could be clearer, for example those parts dealing with translation of documents.[86] The provisions of the regulation should be more clearly publicised so that the public is aware of them, especially the obligation of a party to take steps to designate the proceeding as bilingual, and the methods for doing so.[87]

Impact of Gaps and Inconsistencies on Statutory French Language Rights

Legislative gaps and inconsistencies, some of which are set out above, interfere with the ability of French speakers to interact with the justice system in French. Interference with French language rights often occurs at an early stage in the process and then at multiple intervals along the way. We explain in Section 4.3.2 that, if a French speaker is frustrated in his or her ability to use French at the first point of contact with the justice system, then the use of English becomes the choice by default (or necessity). For example, if the counter staff cannot assist court users in French, it becomes easier to proceed in English. It is important to make the justice system accessible in French from the outset of a proceeding through to its conclusion, without creating undue frustration for court users and administrators.

(B) Potential Solutions

MAG should take steps to ensure that the legislative scheme is clear, coherent, and that legislative rights and benefits are clearly communicated to the population. Given that statutory French language rights have been rolled out gradually, over several decades, existing rights should also be reviewed. These rights should ensure that the objective of equal access to justice in French is met, and help to facilitate the use of French at the first point of contact, and at every point thereafter, along the chain of a proceeding.

(C) Conclusion and Recommendations

The complexity of the legislation giving French speakers in Ontario access to justice in French presents difficulties for lawyers and litigants. There are gaps and ambiguities in the statutes that limit access to services in French. These problems foster the perception that language rights are not delivered in a consistent manner, or not given equal status in all courts.

In order to address this problem, the Committee recommends that:

  1. The Attorney General:
    • Consider legislative and regulatory changes necessary to improve harmonization of the rights under the FLSA and the CJA, including harmonizing the designated areas under the FLSA and the CJA. When considering those changes, the language rights of the accused under the Criminal Code should be taken into account in order to improve the harmonization of rights under the Criminal Code with those under the FLSA and CJA.

  2. MAG:
    • Consider using technology to provide access to assistance from qualified French-speaking staff when court users seek to file court documents in French, by right or by agreement, in areas that are not designated under the FLSA.
    • Develop a strategy to assist court users in navigating Ontario’s bilingual justice system from the first point of contact and at every point thereafter in the chain of a proceeding.
    • Review the feasibility of providing French (or bilingual) bail hearings to everyone that has a right to a French (or bilingual) trial pursuant to s. 530 of the Criminal Code. If appropriate, seek the necessary amendments to the Criminal Code from the Government of Canada. Alternatively, consider voluntarily adopting a policy within MAG to make this service consistently available.[88]

4.3.2 Proceeding in French can be difficult, time-consuming and expensive

(A) Understanding the Problem

The review carried out by the Committee demonstrated that many French speakers do not exercise their right to obtain services in French. The barriers to accessing justice in French can be grouped into three inter-related categories: (i) procedural difficulties in exercising language rights; (ii) delay; and (iii) additional expense. This results in decreased access to justice in French, and multiple appearances for those seeking French or bilingual proceedings. In the criminal sphere, both of these consequences run contrary to the objectives of Justice on Target.

It is necessary to develop measures to ensure that French speakers are made aware of their French language rights at the earliest stage of their involvement with the justice system, and to ensure that services are available in a timely manner, at no additional cost to the litigant. Doing so will permit the justice system to meet the dual objectives of ensuring access to justice in French and protecting and promoting the French language minority community.

Procedural difficulties in exercising French language rights

Many French speakers are either unaware of their right to services in French, or uncertain as to how to exercise those rights. For example, when a French speaker is arrested and released on a promise to appear, there may be nothing on the forms, or in the information provided by the police officer, advising the individual of the right to a hearing in French. By the time the person appears before the court, he or she may have hired a lawyer who does not speak French. Thus, the information about French language rights may come too late in the process to be of real value.

In family law matters, approximately 60 per cent of litigants are self-represented.[89] Such persons are less likely to be aware of their French language rights than those represented by counsel. Even if represented, litigants are often informed of their French language rights too late in the process, if at all.

In civil matters, there are similar problems. For example, a French speaker has a right to issue a claim in French in the Small Claims Court anywhere in Ontario. If the person attends at one of the Small Claims Court offices in an area that is not designated under the FLSA, that person is unlikely to be informed of the right to issue a claim in French. That person is also unlikely to receive any assistance in French from counter staff.[90] The same difficulty can arise if a person attends a non-designated area to file documents in a family proceeding.

As we explain further in Section 4.3.7, the difficulty of obtaining access to a bilingual lawyer also creates a significant obstacle to the exercise of language rights.

Proceeding in French is frequently more time consuming than proceeding in English

The reality in Ontario is that delays are never encountered in the justice system because one of the players – staff, lawyers, judges, or justices of the peace – does not speak English. The situation is quite different for a person who chooses to proceed in French.

Returning to the example of the person released on a promise to appear, the first appearance will often be made before a judicial officer who does not speak French. If the accused is advised of the right to a French proceeding, he or she will have to decide whether to return at a later date or proceed that day in English. If the person was detained and not released on a promise to appear, he or she may wish to speak to a lawyer. Arranging to consult with a French-speaking lawyer is difficult in many areas of Ontario and often involves delay.

In civil proceedings, the Committee heard of many instances of delay. Whether by error, unforeseen illness, or simple failure to plan, there is often no bilingual judicial officer available to hear a bilingual matter scheduled for pre-trial, trial, or motion. The courts in many areas of the province, with the exception of the Court of Appeal for Ontario, schedule a matter to be heard by a judicial officer on the next available date.[91] If the matter is to be heard in French, it may still be inadvertently scheduled for the next date when any judge, or justice of the peace, is available. If no bilingual judicial officer is present on that date, this leads to an adjournment. On the other hand, the matter may be properly scheduled for the next available date that a bilingual judicial officer is sitting. However, that date is often later than when an English language matter could be heard.

Self-represented individuals may experience delays when they try to file documents in French at a courthouse. It can take additional time to obtain the service of a French-speaking counter clerk and, in some regions, there may be no French counter service at all. In these circumstances, having a document reviewed by court staff for compliance with the relevant rules takes additional time, or may not happen at all.

Proceeding in French results in additional costs

As we have explained, a person may not be made aware of their right to proceed in French at the first point of contact. This can aggravate the delay suffered by choosing to proceed in French. In practical terms, this often leads to additional cost.[92] If you retain a lawyer before knowing that you can proceed in French, the lawyer you retain may speak only English. Changing lawyers at a later date leads to extra costs. Even when a person hires a bilingual lawyer from the start, if a bilingual judicial officer is not available, or bilingual court staff cannot assist, an adjournment may be required. This creates additional cost for the justice system as well as the litigant. Increased cost may also be encountered if the judicial officer before whom a French speaker appears disputes his or her right to bring a French, or bilingual, proceeding.[93]

Overall impact is impaired access to justice

The lack of consistent French language services throughout proceedings reduces access to justice in French. This creates a negative perception within the French-speaking population that proceeding in French will necessarily involve difficulties in accessing the justice system including additional delays and expense.

According to a study tracking recent development in language law,[94] lawyers in Ontario believe that the “factor that has the most impact on the decision as to whether to proceed in French is the additional time it takes for services to be provided.”[95] The study concludes that:

Having regard to the perception and existence of the negative impact of proceeding in the minority official language (additional time and costs, mainly), and the possibility of greater difficulty in accessing the judicial system and the documentation in that language, it is not surprising that individuals appearing before the courts, and especially francophones, do not spontaneously exercise their right to proceed in their own language.[96]

The impact of this negative perception can be insidious. On the one hand, French speakers in Ontario are discouraged from accessing justice in French because of delay and increased cost. This results in an underuse of French language services. On the other hand, those improperly seeking to delay proceedings may invoke French language rights. For example, in a criminal or quasi-criminal context, some individuals believe that choosing to proceed in French will delay their proceedings such that an acquittal will result.

Increasing access to justice in French will encourage French speakers to exercise their language rights, while discouraging those who improperly seek to take advantage of French language rights as a means of causing delay.

(B) Potential solutions

In order to address the real and perceived difficulties faced by French-speaking parties who have the right to proceed in French and in order to enhance access to justice, several avenues can be pursued:

More generally, consideration could also be given to examining each line of business of the courts – civil, criminal, and family law – to determine the most effective way of communicating French language rights to individuals involved in proceedings in those particular areas. For example, in family law matters, since more than half of litigants are self-represented, information regarding their French language rights could be provided at the mandatory information sessions they are already required to attend. In the criminal law context, the information form developed for accused persons who receive an order to appear could also be adapted for each region and could include a section relating to the language rights of the accused. [99]

(C) Conclusion and Recommendations

French-speaking litigants are not necessarily informed of their French language rights early in the chain of a proceeding. Once advised, they may have already hired an English-speaking lawyer and be reluctant to change counsel and proceed in French. If not alerted to, and able to exercise, their French language rights early on, French speakers may find themselves appearing before a judge, or justice of the peace, who does not speak French.

Exercising the right to proceed in French early on also assists the court in scheduling the appropriate resources. This reduces court appearances and, in the criminal sphere, aligns with Justice on Target.

In order to ensure equal access to justice in French, the Committee recommends that:

  1. MAG, in consultation with justice system partners:
    • review the forms and procedures in use for criminal, civil and family proceedings to ensure that justice system clients are informed of language rights at the earliest opportunity;
    • develop means of accessing those rights in a timely and cost efficient way; and
    • consider the need to adapt forms and procedures to account for regional differences (e.g., designated and non-designated areas, urban and rural areas, etc.).
  2. MAG, in consultation with police services and lawyers’ associations:
    • develop and implement procedures that ensure that persons are informed of their language rights at the earliest opportunity; and that French legal services are offered and made available at the same time as English legal services.
  3. MAG:
    • Take steps to increase the awareness of the right to French and bilingual proceedings through court notices, templates, documents and signage.
    • Consider ways of making French language services readily available in areas that are not designated under the FLSA. For example, those seeking to file French documents in areas that are not designated might be assisted by a toll-free telephone number.

4.3.3 Procedures under the POA do not allow for seamless and easily accessible French language services

(A) Understanding the Problem

The POA system, as it currently stands, does not allow for streamlined French language services and easily accessible bilingual proceedings. French-speaking individuals sometimes face difficulties in exercising their right to bilingual proceedings, and obtaining associated French language services such as documents, answers to general inquiries, and counter services. Therefore, it is important to look at alternatives to assist POA Court partners in providing equal access to justice for French-speaking individuals by making the exercise of French language rights easier and more consistent.

To achieve this result, it is necessary to continue to increase collaboration among all justice system partners, including police services, lawyers’ associations, court users, court administration staff, municipal partners and the judiciary.

Difficulties in exercising the right to bilingual proceedings and obtaining associated French language services

Over two million provincial offences charges are brought annually under statutes governing public welfare matters.[100] Defendants are entitled to elect a bilingual proceeding under the POA.[101] Based on the proportion of Ontarians who are French-speaking, this represents over 100,000 provincial offence charges for which the accused had a right to proceed in French. However, both the FLS Commissioner and MAG receive complaints relating to the availability of French language services and bilingual proceedings conducted under the POA each year.[102]

These complaints highlight ongoing issues in accessing French language services in POA Courts. The complaints are varied, but frequently focus on the lack of bilingual proceedings, the lack of bilingual judicial officials, and the inaccessibility of French language services.[103]

POA Court Administration and the Provincial Offences Act

The POA sets out procedures for the prosecution of offences under provincial statutes and regulations as well as municipal by-laws. Under separate Memoranda of Understanding between MAG and Ontario municipal partners, MAG delegates responsibility for the administration of POA Courts to municipalities.[104] These courts hear matters pursuant to the POA.[105]

In POA Courts, the “officially bilingual court system in Ontario, as prescribed by the Courts of Justice Act, continues, including the provision of a prosecutor who speaks French and English when a bilingual trial is requested on a charge that is covered by the Transfer Agreement.”[106] Notwithstanding the fact that they are entitled to a bilingual proceeding, litigants in POA Courts may have limited or no rights to counter services in French at some municipal court offices. Municipalities must provide out of court services at the same level as the services provided by MAG in areas designated under the FLSA. However, some municipalities are not designated under the FLSA and may not have passed a bylaw creating the same French language service obligations as the Act. Thus, any dealings related to Part II provincial offences (for example, fine payment of parking infractions) in those undesignated areas may be done only in English.[107] Notices related to parking infractions are a municipal responsibility, and may be delivered exclusively in English.[108] The accused is only entitled to a bilingual proceeding if he or she decides to dispute the parking infraction by requesting a trial and thus becomes involved in a judicial process administered by the POA Court office pursuant to the CJA.

Lack of bilingual proceedings

Some French-speaking individuals request bilingual proceedings, but find they are unable to proceed in French when they attend a POA Court due to the unavailability of bilingual justices of the peace.[109] As a result, they either request an adjournment in order to obtain a French trial, or proceed in English in order to avoid delays.[110] The same occurs when, for example, an individual wishes to plead guilty with an explanation.

In some cases, when the person attended court, he or she ended up with an English-speaking prosecutor and/or appearing before an English-speaking justice of the peace, despite having requested a French trial. If the matter was to proceed in French, the trial had to be adjourned. A person in that situation may well become discouraged and elect to proceed in English.[111]

Lack of bilingual documents and services

In addition to encountering problems accessing timely bilingual proceedings, some French speakers encounter difficulties in obtaining documents and services in French in the POA context. For example, the Committee was informed of instances where individuals completed “Notice of Intention to Appear” forms in French, but received notifications of trials in English.[112] Further, although individuals may have a right to a bilingual proceeding, some cannot obtain counter services in French.[113]

(B) Potential solutions

In 2007, the POA Table French Language Services Subcommittee, composed of members from AJEFO and AFMO, along with POA Court and MAG staff, was established to identify and resolve issues regarding the delivery of French language services in POA Courts. The POA French Language Services Subcommittee conducted a survey in 2010 entitled Survey of POA Municipal Partners Regarding French Language Services. It analysed the results of the survey and developed recommended best practices for municipal partners in order to better equip them to provide bilingual proceedings.

The recommended best practices relate to five areas:

  • staff awareness of French language services obligations
  • staff training
  • active offer of French language services
  • planning and integration of French language services
  • collaboration among municipal partners and the French language community
  • More recently, the Law Commission of Ontario suggested important reforms to the procedures related to provincial offences, including parking infractions.[114] Among a long list of recommendations, the Commission suggested that those responsible for developing the newly updated POA procedural code should consider “proactive procedures that will allow for the early identification of French language needs so that procedures can be put in place to respond to those needs early in each [POA] case and by the time of a first appearance in court.”[115]

    A recurrent theme is the need to provide information related to French language rights proactively, and to streamline services before, and during, proceedings. Possible strategies include the following:

    4.3.4 The linguistic abilities, number, and placement of bilingual judges and justices of the peace is not necessarily determined in accordance with the need to ensure equal access to justice for French speakers

    (A) Understanding the Problem

    In order to provide French speakers equal access to the justice system in Ontario, there must be a sufficient number of linguistically qualified members of the judiciary in all regions of the province. The presence of a bilingual judicial officer has a significant impact because of the predominant influence and leadership role held by judges, and justices of the peace.[120]

    Sufficient access to judicial officers who speak and understand French is but one of the many measures discussed in this report that would serve the interest of equal access to justice. However, it is a crucially important one. Equal access to justice is linked to the linguistic abilities of a judge, or justice of the peace, because French speakers must be able to understand, and must be understood by the court, at the same level as English-speakers. Looking at the issue in this way affects the number and availability of French-speaking judges and justices of the peace in the province.

    The current structure of the linguistic qualification process for judges in some courts in Ontario, and the placement of bilingual judicial officers in all courts, is not adequate. Litigants who seek French language services often do not receive these services in a timely manner, nor are they of equal quality to English language services.[121] As explained in Section 4.3.2, the French linguistic community’s experience has been that French language services are often inferior to services available in English.

    In order to ensure that there is true access to justice for French-speaking parties and to build the confidence needed for French speakers in Ontario to exercise their rights to services in French, there must be a clear means of measuring the need for bilingual judicial appointments and the linguistic qualifications of bilingual candidates selected to fill those positions.[122] There is an informal assessment process that occurs in many cases as vacancies arise. However, the assessment should be formalized in all areas of the province in accordance with a clear service objective of ensuring that access to justice is provided to the French language minority. To accomplish this, and to ensure that the need for bilingual justices can be assessed periodically in the future, an improved statistical base is required. We return to this point in section 4.3.6.

    There is no clear definition of what constitutes a bilingual judge or justice of the peace

    Ontario’s three levels of court do not use a single, or consistent, definition of the linguistic qualifications of a bilingual judge or justice of the peace, nor do they use a similar process to identify who is a bilingual judge or justice of the peace. This inconsistency leads to widely varying levels of French proficiency among Ontario’s “bilingual” judicial officers. Neither the Criminal Code[123] nor the CJA[124] indicates the level of French proficiency required to preside over French, or bilingual proceedings.

    The issue of language proficiency does not arise for English-speaking members of the judiciary. Given the qualification to become a judge (i.e., being a member of the Ontario bar, with ten years experience), every judge in Ontario speaks English, and is able to preside over proceedings in that language. There has never been a need to define English proficiency. It is assumed that a judge presiding over a hearing in English must have an excellent command of the language. It follows that a judge hearing evidence and communicating with the parties in French should have an excellent command of our other official language.[125] The objective standards for French language proficiency set out by the Government of Ontario and the Government of Canada provide useful references. The “superior” provincial standard and “Level C” federal standard (with “E” and/or appropriate “Professional” requirements) could guide assessments of bilingualism among judicial candidates.[126] A bilingual judicial officer’s French language abilities must be equal to that which is required when the proceedings are in English. In any other situation, the interests of justice may not be served.

    Complaints have been received regarding the ability of a presiding judicial officer to understand French. For example, members of the AJEFO have reported to the Committee that they occasionally believe they are not fully understood by “bilingual” judges. This leads to the question of how proficiency in French is assessed and taken into account when members of the judiciary are appointed, or assigned to hear bilingual cases. The recruitment and appointment of bilingual justices of the peace and bilingual judges of Ontario’s three courts are approached quite differently.

    Objective evaluation of bilingual candidates at the Ontario Court of Justice

    The appointment of bilingual justices of the peace of the Ontario Court of Justice is at one end of the spectrum.[127] The Chief Justice of the Ontario Court of Justice determines whether a position is to be filled by a bilingual justice of the peace, and the Attorney General generally pays deference to this determination. The Justices of the Peace Appointments Advisory Committee actively considers French language needs throughout the entire application process, including advertising and reaching out to the French-speaking community and evaluating candidates’ language competency according to the province’s standards.[128] While the candidates self-identify as being qualified, the Justices of the Peace Appointments Advisory Committee nonetheless requires that they undergo evaluations to objectively determine their level of written and oral French proficiency.[129] The successful candidate is, upon appointment, identified as a bilingual justice of the peace.

    The process for judges appointed to the Ontario Court of Justice is similar to the appointment of justices of the peace except that there is no assessment of the candidate’s ability to write in French by a provincially certified evaluator. There is, however, a rigorous informal assessment of French to ensure that the candidate is fully bilingual.[130] In accordance with the Court’s policy, only candidates who are already fully bilingual are considered for appointment as a bilingual judge.

    Self-identification of French abilities at the Superior Court of Justice and Court of Appeal for Ontario

    The appointment process for bilingual judges of the Superior Court of Justice and the Court of Appeal for Ontario lies at the other end of the spectrum. The Judicial Appointments Advisory Committee for federal appointments does not specifically advertise or reach out to the French-speaking community for candidates. Its application form simply asks whether the candidate is “competent to hear and conduct a trial” in French. With very few exceptions, there are no interviews of candidates. The candidate’s ability in French will not be objectively assessed other than as may be discovered by the Judicial Appointments Advisory Committee through reference verifications, or through their own personal experience. With respect to the appointment and assignment of judges, the Chief Justice can indicate a preference for the appointment of a bilingual judge and it is treated as such by the Minister of Justice. Candidacies for bilingual judges are reviewed on an ongoing basis, not on the basis of vacancies.

    In addition, federal appointments do not identify whether the successful candidate is appointed as a bilingual judge. Of the 52 judges that the Chief Justice of the Superior Court of Justice reported as having self-identified as able to preside over some form of French language matter, only 22 self-identified as being able to hear all types of matters in French. The ability of the 30 other judges to hear bilingual matters ranged from those that self-identified as being able to hear most types of matters, to those that indicated they could only deal with matters in writing.

    The number and placement of bilingual judges and justices of the peace are not necessarily determined in accordance with the need to ensure equal access to justice

    None of the courts has established a formal process to assess French judicial needs for a particular region. Of course, in the absence of reliable statistics, carrying out a formal assessment is difficult. In that regard, the Committee was informed that statistics and historical data on bilingual and French proceedings are unreliable and do not provide a sufficient basis for determining the need and placement of bilingual judges and justices of the peace by region. Additionally, since French speakers often do not exercise their French language rights due to the problems outlined in this report, including the inconsistent availability and proficiency of bilingual judges and justices of the peace, any statistics would likely understate the need.[131]

    The information received by the Committee makes it apparent that there is a problem. According to figures provided by the Superior Court of Justice, an exceptionally small fraction of the proceedings commenced in a recent year resulted in a bilingual hearing. Not all proceedings result in hearings. However, the proportion of bilingual hearings to total proceedings commenced does not correlate to the proportion of Ontario’s population that speaks French.[132]

    In determining the appropriate complement of bilingual judges and justices of the peace, scheduling realities facing the courts in Ontario have to be taken into account.[133] The need for additional bilingual judges and justices of the peace must also be assessed in a more nuanced way than simply reviewing the percentage of Ontario’s French-speaking population in any given region.[134] While the size of a region and the number of French-speaking Ontarians within a region must be taken into account, equal access to justice must remain the overall objective.

    Viewed in that light, the province requires more bilingual judges and justices of the peace than the population numbers alone might otherwise suggest. In essence, if Ontario’s courts embrace the objective of equal access to justice, they must offer French speakers a justice system in which they are provided with equivalent services, without delays or additional costs. French speakers would then have true equal access to the courts and would not be prejudiced for having exercised their French language rights.

    (B) Potential Solutions

    The courts would benefit from a formal process for fully and objectively assessing the bilingual capacity and actual language skills of judicial candidates when an appointment is made. Although the current practice of consultation on the need for bilingual judges and justices of the peace is useful, it does not fully address the issues that have been identified by the Committee. The adequacy and placement of bilingual judges and justices of the peace must be assessed in a more formal way, with the objective of ensuring equal access to justice in a timely and cost-effective manner, throughout the province.

    With respect to language skills, the Environmental Scan: Access to Justice in Both Official Languages report recommended that a system to evaluate the language skills of judges be established in order to avoid gaps in the judicial appointment process:

    A number of people attribute the shortage of Francophone or bilingual judges to the appointment processes, which do not give sufficient consideration to the candidates’ language proficiency. They say not only that judges’ language proficiency should be considered, but also that it should be assessed, to ensure that judges who are considered to be bilingual are actually able to hear a case as well in French as they do in English.[135]

    A similar conclusion was reached by the Commissioner of Official Languages in the Final Investigation Report on the Institutional Bilingual Capacity of the Judiciary for the Superior Courts in Nova Scotia and Ontario, 2011:

    With respect to the federal judicial appointment process, it is clear that the main problem is the lack of a formal process for assessing fully and objectively the bilingual capacity of superior courts and the language skills of candidates when an appointment is made. The current practice of the Minister of Justice consulting with chief justices before each new appointment in order to learn about their needs is a step in the right direction but does not completely solve the issue. [Emphasis added].[136]

    The approach used by the Justices of the Peace Appointments Advisory Committee has several significant advantages. In the assignment of justices of the peace, the Chief Justice has both subjective and objective confirmation that the candidate will be willing and able to carry out the full range of duties of a bilingual justice of the peace. This is the case because the person applied as a bilingual candidate, was identified as a bilingual appointment, and was objectively evaluated using the province’s language proficiency standards. Additionally, French speakers appearing before a bilingual justice of the peace know that he or she has met these objective standards.

    Aspects of the process used for assessing and appointing candidates as bilingual justices of the peace can usefully be adopted, with certain adaptations, for the assessment and appointment of persons as judges of the Ontario Court of Justice, the Superior Court of Justice and the Court of Appeal for Ontario.

    Currently, candidates for appointment as bilingual judges to the Ontario Court of Justice undergo an interview in French. There could be an additional requirement that the interview process include an assessment of their written ability in French by a provincially certified evaluator. Alternatively, all shortlisted candidates could be required to undergo a written assessment.

    With respect to the Superior Court of Justice and the Court of Appeal for Ontario, a protocol could be entered into among the Chief Justice of each court and the Minister of Justice, whereby the Minister of Justice would honour requests by a Chief Justice for the appointment of a bilingual judge. This process has been used, with success, for appointments to the Ontario Court of Justice and for the appointment of justices of the peace. This would give the Chief Justice of the Superior Court of Justice and the Chief Justice of Ontario greater ability to identify and assign bilingual judges to those areas where there is a need.

    In addition, the Minister of Justice could direct that the process for the recruitment and assessment of candidates be modified to require that, where a candidate indicates a willingness and ability to be appointed as a bilingual judge, that candidate would be required to undergo a set form of assessment and submit the results with their application. This would have the benefit of providing an objective assessment of the candidate’s ability to sit as a bilingual judge. An objective confirmation would assist the Judicial Appointments Advisory Committee in its work. It would also increase public confidence that French-speaking litigants will be understood and decisions will not be delayed because of translation. With respect to determining the required number and placement of bilingual judges and justices of the peace, many factors could be considered such as the size of the region, the French-speaking population within that region, and the various duties judges and justices of the peace are required to perform. These factors, as well as the principle of equal access to justice, should guide the Chief Justice of each court in assessing the number of bilingual judges and justices of the peace required. Initially, this assessment is likely to be imperfect. With the benefit of experience, and as more reliable data becomes available, adjustments will inevitably be necessary. Ultimately, the number should reflect potential demand and the need to have sufficient bilingual judges and justices of the peace in place to ensure that courts throughout the province can schedule French or bilingual proceedings without delay and additional cost to court users.

    (C) Conclusion and Recommendations

    The courts have different definitions of “bilingual judge”. At the Ontario Court of Justice, the interview process for bilingual judge candidates includes a portion in French during which the interviewer evaluates the candidate’s fluency in French. There is no formal evaluation of writing skills. At the Superior Court of Justice and the Court of Appeal for Ontario, judges self-identify as bilingual and there is no evaluation of oral or written French language competencies. Neither the Superior Court, nor the Ontario Court of Justice, has a formal process to assess French language judicial needs for a particular region.

    The Justices of the Peace Appointments Advisory Committee actively considers French language service needs throughout the entire application process by advertising and reaching out to the French-speaking community, and objectively evaluating candidates’ language competency. Prospective bilingual justices of the peace undergo an evaluation of their oral and written French abilities in accordance with MAG standards.

    In order to ensure equivalent access to justice in French, the Committee recommends that:

    1. The Attorney General:
      • In order to ensure that there are sufficient qualified bilingual applicants for appointment as judges and that court users have the assurance that bilingual judges have met objective standards, the Committee recommends that:
    2. The Attorney General:
      • Propose to the Ontario Judicial Appointments Advisory Committee that it adopt a process similar to the one used by the Justice of the Peace Appointments Advisory Committee for the recruitment and evaluation of bilingual candidates.
      • Propose to the Minister of Justice that (i) it direct its Judicial Appointment Advisory Committees to develop a process for the recruitment and evaluation of bilingual candidates utilizing a similar standard to the one applied by the Justices of the Peace Appointments Advisory Committee; and (ii) that, for future appointments, persons appointed who met the criteria established to qualify as a bilingual candidate be identified, on appointment, as bilingual judges.
      • Propose to the Chief Justice of the Ontario Court of Justice that MAG and the court collaborate to: (i) carry out an assessment of the need for bilingual judges and justices of the peace in each region to meet the objective of promoting access to justice in French; and (ii) develop a protocol to ensure that, over time, the required number of bilingual judges and justices of the peace are appointed.
      • Propose to the Chief Justice of the Superior Court of Justice and the Chief Justice of Ontario that a process similar to that proposed to the Chief Justice of the Ontario Court of Justice be undertaken for the various regions of the Superior Court of Justice and by the Court of Appeal for Ontario. Following that review, the Commissioner for Federal Judicial Affairs Canada, and the Minister of Justice in conjunction with the Chief Justices, should consider collaborating to develop a protocol to ensure that, over time, the identified need for bilingual judges is filled.

    4.3.5 There is a need for greater coordination of bilingual court staff and enhanced awareness by all court staff of French language rights

    (A) Understanding the Problem

    The systems currently in place with respect to the coordination of bilingual court staff do not ensure timely delivery of the bilingual resources required to support bilingual or French proceedings, nor do they ensure that litigants are informed of their French language rights. There is no single individual or entity responsible for ensuring that there is sufficient French-speaking court staff in Ontario. The need for bilingual court staff is largely assessed on a local basis by the local or area manager, who is encouraged to consult with the OCFLS. This lack of coordination contributes to the broader problem of unequal access to justice in French.

    There is no single person responsible for coordination of bilingual staff

    It is the responsibility of each manager to ensure that required designated bilingual positions on their teams are properly identified, and satisfactorily staffed.[137] In the past, the Justice Sector Human Resources Strategic Business Units and the OCFLS undertook initiatives to reconcile the requirements of designated bilingual positions with the actual language competencies of the employees occupying these positions.

    There is a simple set of three primary guiding principles which court managers are to apply in the effective management of designated bilingual positions:

    1. What programs and services does the unit provide and which of those programs and services must be provided in French? A manager must identify the full range of professional and administrative services being offered in the office and all positions that deal directly with the public, stakeholders or client groups.
    2. Is there sufficient French-speaking staff to provide quality services within MAG’s established service standards, including during vacations, leaves, shift work, sick days, training days, etc.? French-speaking customers in a designated area are entitled to equal access to, and quality of, the full range of services offered in English.
    3. From a corporate perspective, were the correct procedures followed to ensure that MAG meets its requirements under the FLSA?[138] When developing a program or service, consideration must be given to the needs of the French-speaking population, which can vary from those of the English-speaking population.

    MAG’s capacity to offer French language services in the courts of Ontario relies, in large part, on the manager’s ability to recruit and retain the appropriate French-speaking staff in designated bilingual positions. The OCFLS tracks and monitors designated bilingual positions.[139] Any changes to these positions should be made in consultation with the OCFLS (though such consultation does not always occur).

    Recruiting and retaining individuals with the appropriate oral and written French language skills for their positions in designated bilingual positions is inevitably more challenging and complex than recruiting for non-designated positions. The pool of qualified candidates is much more limited and a large majority of managers are not in a position to assess personally the level and quality of the candidate’s French.

    As a result, it is not uncommon to find situations where a designated bilingual position is either left unfilled or is occupied by someone who does not have the appropriate level of French language skills. The hiring manager is responsible for ensuring that the designated bilingual position is filled by a candidate who has the appropriate language skills. The ability of MAG to provide quality French language services depends on the effective management of its French language staffing requirements through designated bilingual positions.

    (B) Potential solutions

    The CSD should conduct an internal review of its designated bilingual positions to ensure that there is sufficient bilingual staff to allow for equivalent access and active offer of French language services. MAG should continue to explore innovative solutions to ensure sufficient bilingual staff resources. Currently, CSD is collaborating with the OCFLS to develop a court support program in French, modelled after the court support services program offered at Durham College.

    (C) Conclusion and Recommendations

    The ability of MAG to fulfill its service objective and provide an active offer of French language services depends on the effective management and staffing of designated bilingual positions. It would be beneficial to determine which positions are critical to the effective management of bilingual or French proceedings and to the delivery of French language services throughout the CSD.

    To ensure equal access to justice in French, the Committee recommends that:

    1. MAG:
      • Develop procedures in each region to ensure that there is timely and seamless provision of bilingual services in French.
      • Conduct an internal review of designated bilingual positions and the policies and procedures in place to ensure that appropriate bilingual staff continue to be available in future.

    4.3.6 There is a need for greater coordination within MAG, and between the judiciary and MAG, regarding the delivery of French or bilingual proceedings on a regional and provincial basis

    (A) Understanding the Problem

    There is inadequate coordination between the judiciary and CSD with respect to the delivery of bilingual or French proceedings. This lack of strategic coordination and formal accountability for French language services in Ontario adversely affects the provision of French language services in the courts of Ontario and results in unequal access to justice in French. It is therefore critical to improve the collaboration and dialogue between justice partners as it relates to French language service issues.

    There is no single person responsible for French or bilingual proceedings

    Each CSD region is primarily responsible for delivering local criminal, civil, small claims, and family court services, and providing judicial support services. Each region is also responsible for maintaining records, files, exhibits, and databases as well as enforcing court orders. Regions must manage juries, fines, fees, trust funds, and regional stakeholder communications. Divisional initiatives are implemented at the regional level as necessary.[140]

    In the CSD, there is no one bilingual person dedicated to the French language services portfolio. The corporate lead, who has the French language services portfolio within the CSD, also has a multitude of other responsibilities. Managers of Court Operations are responsible for the effective functioning of services within the courts they oversee. This includes French language services.

    There is no single person, or entity, in the judiciary responsible for structuring, scheduling, and otherwise overseeing bilingual or French proceedings in the courts. The Chief Justices have overall responsibility for all matters within their courts, including the provision of judicial services in French. However, the Chief Justices have a multitude of responsibilities and the provision of services in French is but one of these.

    Clearly defined responsibilities

    There are issues with undefined responsibility for resolving French language service issues at an early stage, and adequately integrating such services into court operations. Managers of Court Operations are not always equipped to answer requests with respect to bilingual or French proceedings. Questions are received regularly by the OCFLS with respect to what is necessary and under whose responsibility a particular bilingual issue may fall.

    Within MAG, a Manager of Court Operations has a broad spectrum of responsibilities including the management of court staff. The French language services part of the Manager’s portfolio is but a small piece of his or her greater portfolio. In this context, responsibilities could be more clearly defined by having a single knowledgeable and dedicated person who manages French language services as a whole in the administration of the courts.

    Additional mechanisms are needed within the judiciary and the administration of the courts to allow for better coordination of French language services in the justice system while integrating these services into the processes and structures already in place. The judiciary may wish to consider identifying lead regional or local French language services judges and justices of the peace, who are charged with ensuring better coordination of trials and proceedings and have clear accountability for French language service issues in each region. CSD and POA Court offices should also consider identifying regional or local French language services leads to ensure better coordination of trials or other proceedings from the administrative side, and better integration of French language services into existing structural processes.

    Regional coordination, planning and communication

    There is limited regional coordination and planning with respect to French language matters in Ontario’s courts.

    Trial coordinators act under the direction of the judiciary. This means that even if they believe they should be scheduling a bilingual or French proceeding, if a previous endorsement says a French interpreter is sufficient, or an English proceeding will occur instead, then the trial coordinators have no choice but to follow the direction in the endorsement. If a judge, or justice of the peace, in each region was responsible for the provision of services in French, the trial coordinator could liaise with that person in order to resolve any issues. Similarly, if a CSD staff person in each region was responsible for the provision of services in French, the judge or justice of the peace assigned responsibility for bilingual or French proceedings could raise issues regarding the delivery of services in French by court staff with that person.

    An assessable and reviewable French services coordination plan between the judges, or justices of the peace, and the CSD may be of assistance.

    There continue to be challenges to providing French language services widely to all regions of the province, particularly in areas where bilingual resources are scarce, or the French-speaking population is small. Moreover, given the wide variety of local practices and needs, each region may need to structure itself differently to provide timely services in French while avoiding unnecessary additional costs. There may not be a single, province-wide solution that will be viable across Ontario. Regional leads from the CSD and the judiciary could work together to determine how procedures for providing French language services could, and should, be adapted to account for these differences.

    There is also a need to continue the collaborative work between the CSD, municipal partners and French language services stakeholder groups to improve the delivery of French language services in POA Courts.

    Establishing French language service protocols between the CSD and the judiciary can only serve to alleviate some of the problems described. For example, since 2010 there has been a protocol in place between MAG, which receives complaints relating to the delivery of French language services, and the Offices of the Chief Justices. This protocol provides a mechanism to advise the Chief Justices of complaints related to the judiciary. This allows for better understanding of concerns and more effective responses.

    (B) Potential Solutions
    Establishing Protocols

    French language scheduling protocols would be useful tools in ensuring that the request for a French or bilingual proceeding is properly scheduled, tracked, and staffed. Ideally, protocols could also address a broad number of issues related to French language services, including language education, resolution of French language services complaints, allocation of designated bilingual positions and media responses.

    At the Court of Appeal for Ontario, procedures are in place to ensure that the scheduling of French or bilingual cases is done in an equivalent manner to the scheduling of English cases.[141] While informal procedures may be in place in other Ontario courts, they may not be sufficient to ensure a consistent approach.

    It is critical to have French or bilingual cases directed into the bilingual stream as early as possible, and to ensure that those cases remain in the bilingual stream until their resolution. To that end, there is a need to manage bilingual or French cases as effectively as possible. This is especially true when parties are self-represented. A regional protocol could help to ensure that once an individual requests a bilingual or French proceeding, that individual knows what to expect and receives services in French until the end of his or her matter in the courts, without having to repeat requests for French language services.

    Education

    Educating the Ontario public, and Ontario Public Service staff, with respect to language rights is critical to ensuring that the French language service objective is readily met.

    Public

    Lawyers and community groups have long stressed the importance of making easy-to-understand legal information available to the public so that people can make better use of the justice sector’s resources.[142] The divisions that are part of the strategic planning process in Ontario’s justice sector work to make information about French language services more accessible to French speakers.[143] The new French language section of the Justice Ontario website, launched in February 2009, aims to give French speakers a better understanding of their language rights and better access to French language services.[144] Initiatives of this kind need to be continued and expanded.

    Staff

    All of MAG’s divisions offer French language courses to their employees, whether or not they are bilingual.[145] Education programs on French language rights and services are also available to all staff. However, there could be increased communication to encourage participation in these programs.

    MAG has partnered with the federal Department of Justice on various initiatives to provide excellent language education to justice professionals whose responsibilities include services in French, as legislated by the Criminal Code. Two of these initiatives are of particular interest.

    First, since 2005, the French Language Institute for Professional Development (FLIPD) has been bringing together professionals who provide services to the public in French in the Ontario justice system, as well as Crown Attorneys from other provinces. The one-week long curriculum, developed by MAG’s Criminal Law Division and the AJEFO includes mock trials, information sessions, and workshops. FLIPD has been highlighted as a best practice and recommended as a program to be duplicated and made available to justice system professionals across Canada.[146]

    Second, in 2011, MAG rolled out an interactive online education program in French (e-FLIPD).[147] This program responds to the need for year-round education and provides a user-friendly way to enhance linguistic skills on a large scale. Bilingual staff can improve their legal terminology in French, follow the various steps and requirements of an actual bilingual proceeding, and work on a number of relevant exercises allowing them to evaluate their newly acquired knowledge.

    Visibility and Signage

    French language services, and information about rights to those services, should be more visible in MAG and the courts. There is a need for bilingual signage, whether it is permanent or temporary signage, at each courthouse and government office in Ontario. It is also important that this signage be grammatically correct and contain no spelling errors.[148]

    Apart from being a deviation from the active offer of service, a lack of bilingual signage, or correct bilingual signage, can send a message that in Ontario, French is not as important as English. Signage issues may be resolved as MAG’s “Courthouse Wayfinding Signage Standards” policy is scheduled to be finalised by 2012. A court signage lexicon has already been developed with the most common court signs and is available on MAG’s intranet and on the internet.

    Conclusion and Recommendations

    There is limited internal accountability for resolving French language services issues at an early stage, or for adequately integrating services. There is also a lack of communication regarding French language services between MAG and the judiciary. This has the potential to exacerbate existing problems.

    There is a lack of knowledge pertaining to French language services rights and of the application of these rights, which can lead to problems in the administration of French, or bilingual proceedings. A lack of French language services knowledge on the part of justice system staff and the public can occur at the court counter, or in the courtroom.

    In order to improve the coordination of the delivery of French, or bilingual proceedings on both a regional and provincial basis, the Committee recommends that:

    1. MAG:
      • Direct the CSD to designate a French language services coordinator, and consider designating a person in each region to coordinate French language services regionally, and promote a regional exchange of ideas and strategies for improving the availability and delivery of French language services.
      • Develop and implement procedures in consultation with the judiciary in each court region, that ensure timely and seamless services in French are provided from the point where a litigant asks for a French or bilingual proceeding, up until the completion of the proceeding.
      • Continue its collaborative work through the CSD with municipal partners and French language service’s stakeholder groups to improve the delivery of French language services in all areas, including POA Courts, by sharing tools and resources.
      • Take steps to respond to the challenges of training bilingual staff by ensuring that all staff are aware of the right to French language services, and MAG’s commitment to promote the availability and use of such services.
      • Ensure that the design and implementation of CIMS allows for tracking of French language proceedings and the use of French language services in the justice system.
      • Provide for regular consultation, both regionally and provincially, between the judiciary and CSD regarding French language services issues, and develop clear and measureable targets for improving the availability and delivery of those services.

    To ensure that delivery of French language services is coordinated with the judiciary and that problems are identified and resolved quickly, the Committee recommends that:

    1. The Attorney General:
      • Discuss with the Chief Justices of all levels of court the possibility of designating a justice of their court to be responsible for French language service issues.
      • Discuss with the Chief Justice of the Ontario Court of Justice, and the Chief Justice of the Superior Court the possibility of designating a justice in each region to be responsible for French language services in that region.

    4.3.7 There is inadequate coordination of the delivery of French or bilingual proceedings with the legal profession

    (A)Understanding the Problem

    The legal profession has a critical role to play in ensuring that French speakers are able to access the justice system in Ontario in their own language. Litigants depend upon lawyers to explain the law, and to advocate before the courts on their behalf. Lawyers play a fundamental role in raising awareness of, and explaining language rights in the justice system, and in advocating those rights before the courts. The bar must play a leadership role in this regard if access to justice in the French language is to be fully realized. Of course, it is also important to ensure that there are sufficient bilingual lawyers to meet the need of French speakers for representation before the courts and that their services are readily accessible to the people that need them. The right to plead in French is hollow if the citizen cannot find a lawyer to advocate for him in his own language.

    The Rules of Professional Conduct

    In its commentary to rule 1.03 of the Rules of Professional Conduct[149] relating to the standards of the legal profession and a lawyer’s responsibility for ensuring the proper administration of justice, the Law Society suggests that “[a] lawyer should, where appropriate, advise a client of the client’s French language rights relating to the client’s matter,” including those under the CJA, the FLSA and the Criminal Code. Thus, every lawyer who has a French-speaking client should inform his or her client of their language rights at the outset of the professional relationship.

    The commentary assumes that the lawyer will know when it is appropriate for the lawyer to give his or her client this advice. However, this will not always be the case. For example, French-speaking persons frequently have English sounding names. They usually also speak English, often quite well. Further, there are many new Canadians whose first language is not French or English, but who may prefer service in French. Given the breadth of the language rights enjoyed by litigants before Ontario courts, it is appropriate that such persons be advised of their French language rights by their lawyer. Finally, the rule assumes that lawyers know what the French language rights of their clients are.

    Language Rights Education

    There is little focus on language rights education in Ontario’s law schools[150] or in the other courses of study required to access the profession. While the AJEFO offers continuing professional development on language rights issues to its approximately 700 members, notably at its annual convention, there is otherwise little available to the profession by way of continuing professional development on this subject.[151] While the Committee is not aware of any studies or statistics measuring compliance with the commentary of rule 1.03 of the Rules of Professional Conduct, which encourages a lawyer to advise his or her client of language rights, it is safe to assume that it is frequently honoured in the breach. As noted above, it is often difficult to identify who is French-speaking and, more importantly, a French-speaking person who is fluent in English, but might be more comfortable in French. Unless the issue is raised by the lawyer, it is unlikely that the client will know of, or exercise, his or her French language rights. Thus, increasing the profession’s awareness of language rights through education is of great importance.

    The lawyer’s dilemma with respect to language rights

    The lawyer who is aware of his or her client’s language rights, and the obligation to inform her clients of those rights, faces a dilemma. The lawyer is also obliged under the Rules of Professional Conduct to deal with clients with honesty and candour and to provide them with frank advice.[152] As we explained earlier, this means informing clients that designating a proceeding as bilingual, or otherwise asserting the right to proceed in French, will often mean that the matter will take longer, and be more expensive. This will be sufficient to discourage many French speakers from exercising their language rights.

    Solving this dilemma requires that lawyers’ associations be engaged in the changes to the system proposed earlier in this report. It also requires that they ensure that those who might choose to proceed in French are made aware of their right and are provided with access to justice as outlined herein.

    Availability of French-speaking lawyers

    Of course a sufficient French-speaking bar that is easily accessible to French-speaking clientele is also essential. It is of limited utility to prime the police and court staff to provide notices to citizens of the right to counsel in French if no French-speaking lawyer is then available to take on the case.[153]

    According to the Law Society, approximately 5,400 of its 41,000 lawyer members self-identify as able to offer services in French. These members are involved in different areas of the law and not all of them are in private practice. They are located in different geographic areas. There is no easily accessible and comprehensive listing of these lawyers by geography and practice area. The AJEFO website does list its members in this way but they include only about 500 of the practitioners in the province who report as being able to offer services in French.[154]

    The Law Society’s Referral Service, which will put a member of the public in touch with a lawyer in a particular practice area, operates in French. However, this service is not instantaneous and is not well advertised in courthouses. The service only lists lawyers who agree to participate in the program and there are areas in the province where the listings for lawyers prepared to provide certain services in French are quite limited. Thus, there is no easy way, for example, for French speakers to be put in touch quickly with a French-speaking lawyer at the time of arrest and detention. If a French-speaking detainee is only able to find, retain, and instruct, an English-speaking lawyer, there is little chance that the case will proceed in French.

    Statistics compiled at the Court of Appeal for Ontario over a nine-year period revealed that only 0.33 per cent of criminal appeals argued by a lawyer proceeded in French, or bilingually. With the French-speaking population representing about five per cent of the population of Ontario, this figure raises significant questions about whether or not French speakers are able to exercise their language rights. Interestingly, for criminal appeals argued by self-represented individuals, the Court of Appeal for Ontario recorded that 2.73 per cent proceeded in French. This is almost nine times the number of appeals in French where the person was represented by counsel.

    The Committee’s limited mandate did not allow for the disparity in these figures to be fully explored. However, it is likely explained, at least in part, by the failure of French-speaking accused to retain bilingual lawyers. There can, of course, be good reasons why a French speaker might choose to retain a lawyer who is not bilingual. The lawyer may be known to the person or may be considered by that person to be exceptionally suited to represent him or her. However, the decision to retain a lawyer who is not bilingual may also be made because the client was not aware of the right, or became aware after retaining a lawyer who did not speak French. It may also be because a bilingual lawyer was simply not available.[155] For example, the Committee understands that when a person is detained in a police station and given a list of lawyers that can be called to provide counsel, the list does not always contain a bilingual lawyer.

    Legal Aid Ontario provides duty counsel services. These are available in French in many courthouses across Ontario. However, it is unclear how a French speaker is to obtain assistance in French where bilingual duty counsel is not available.

    Legal Aid Ontario also provides French language services in varying degrees to low-income people through 23 general and specialty independent legal clinics, and one student legal aid clinic.[156] Some of these clinics have limited French language service resources, while others are fully bilingual designated agencies under the FLSA.[157] Finally, Legal Aid Ontario finances Francophone legal advice telephone lines whereby French-speaking clients can get free, confidential advice and referrals for many of the legal issues covered by community legal clinics.[158] Again, the Committee’s limited mandate did not allow for further analysis of the availability of French language services by Legal Aid Ontario.

    The Law Society’s referral service and the AJEFO website assist some French speakers in retaining a bilingual lawyer. Aside from these exceptions, the Committee did not find evidence of legal associations taking active steps to increase the availability of bilingual lawyers and facilitate access to those lawyers for French-speaking litigants.

    (B) Potential Solutions

    The profession needs to take action in three areas. First, it needs to ensure that all of its members are aware of the basic French language rights available in Ontario and comply with the obligations set out in the Rules of Professional Conduct by clearly advising clients of their language rights and taking active steps to assist clients in exercising them. Second, it needs to take steps to ensure that there will be sufficient numbers of well trained bilingual lawyers available to French speakers. Finally, it must take steps to ensure that members of that population are easily able to access that representation.

    It is clear that the Law Society needs to take a leadership role in this regard. While legal associations such as AJEFO, the Ontario Bar Association, and others can assist, the Law Society is in the best position to lead and coordinate these tasks.

    With respect to the difficulty in retaining a bilingual lawyer, the Law Society plays an important role in increasing this access. In 2006, the Law Society Act[159] was amended to provide that the Law Society has the duty to “facilitate access to justice for the people of Ontario.”[160] Given the French-speaking populations’ right to access justice in French, and their apparent failure to exercise this right, the Law Society should consider whether timely access to bilingual lawyers is a cause it wishes to promote. If so, it should consider ways that it, alone, or in conjunction with law faculties and lawyers’ associations, could increase the availability and number of lawyers who can represent clients in French.

    Law schools also play a role. The teaching of basic language rights can begin in the law schools. It would be useful for law schools to include such basic rights in the curricula of appropriate courses such as constitutional law and civil and criminal procedure. To ensure new lawyers are aware of French language rights in Ontario, the Law Society could include language rights as part of its licensing requirements. Continuing professional development is now compulsory for Ontario lawyers, including a component dedicated to professionalism issues. Given the commentary to rule 1.03 of the Rules of Professional Conduct, courses raising awareness in respect of language rights could be offered by the Law Society, AJEFO and others.[161] Furthermore, courses on various other subjects could be prepared so as to integrate problems or issues concerning French language rights.

    Ensuring sufficient numbers of properly educated bilingual lawyers requires that law schools support French language legal education. There is a French Common Law program at the University of Ottawa. However, other Ontario law schools could develop programs with a view to facilitating the ability of their graduates who speak French to practise in that language. For example, a law graduate who speaks French may be hesitant to offer his or her services in French because he or she is not familiar with French legal terminology. A terminology course could assist in expanding the cadre of bilingual practitioners.

    At the post-law school stage, the Law Society should ensure that licensing examinations and other requirements such as articling positions are accessible to French-speaking candidates in a manner equivalent to English-speaking candidates.

    Finally, the Law Society could take a leadership role and encourage other legal associations to coordinate efforts to pair French-speaking litigants with a French-speaking lawyer in a timely way, and at the outset of a proceeding. Steps could be taken to ensure that lists of lawyers that may be made available at police stations, by legal aid officers and others, always identify and list lawyers offering services in French.

    (C) Conclusion and Recommendations

    Some of the earlier recommendations in this report have included calling upon MAG to consult with lawyers’ associations in implementing improvements to the delivery of legal services in French across the province. The following recommendations are focused on the legal profession. Since the legal profession is self-governing, it is appropriate for the Attorney General to engage in discussions and make recommendations to the Law Society and to law schools.

    The Committee recommends that:

    1. The Attorney General, in cooperation with the Law Society and law faculties:
      • Explore measures to support language rights education, and French language training, as well as take steps to increase the number of lawyers able to provide legal services in French.
    2. The Attorney General propose to the Law Society that it:
      • Consider assessing language rights knowledge in the licensing process.
      • Collaborate with lawyers’ and paralegals’ associations where possible to develop strategies to enhance the knowledge of lawyers and paralegals of French language rights and services before the court system.
      • Collaborate with lawyers’ and paralegals’ associations, courts administration, Legal Aid Ontario, and other relevant stakeholders, to ensure that: (i) new clients are advised of relevant language rights; (ii) the cadre of French-speaking lawyers and paralegals in the province is known; and (iii) access to these lawyers and paralegals by French speakers who require their services, is facilitated.
    3. The Attorney General propose to Legal Aid Ontario that it:
      • Carry out a review of the availability and delivery of French language services, informed by the findings and recommendations in this report.

    Part 5: Conclusion

    In spite of the goodwill on the part of participants in the justice system, the French-speaking community continues to experience barriers to accessing justice in French. These obstacles prevent the legitimate exercise of French language rights in Ontario’s courts. Ensuring equal access to justice in French, through active offer and a clearly defined service objective, requires concerted efforts on the part of MAG, judicial officials, court staff, justice partners, and lawyers, to continue improving the provision of French language services in the province.

    The Committee’s first mandate, increasing the knowledge of the judiciary with respect to language rights in the justice system, led to the conclusion that the judiciary may not be adequately informed of language rights at this time. Addressing this problem requires improved communication of existing language rights through straightforward commitments to judicial education. A more informed judiciary will be better able to communicate language rights to litigants that come before the court and to make decisions that properly implement those rights.

    The Committee’s second mandate, addressing the shortage of bilingual justices in Ontario, led to three overarching themes for improvement:

    1. increased coordination and clearly defined responsibilities;
    2. improved communication; and
    3. harmonisation and simplification.

    The concern that there is a shortage of bilingual judges and justices of the peace in Ontario reflects, at least in part: (i) gaps and inconsistencies in the statutory French language rights regime; (ii) lack of resources to support French language service initiatives; and (iii) informational gaps which make it difficult to plan and coordinate French language services. In this context, the Committee has recommended including French language services in MAG’s data collection system and clearly defining responsibilities to ensure that French language services are accessible and responsive to demand. In addition, objective evaluation of the language abilities of candidates for bilingual judicial positions, together with increased planning for, and assignment of, bilingual staff and judicial officers, will ensure meaningful access to justice for French speakers in Ontario.

    With respect to increased coordination and clearly defined responsibilities, the Committee recommended designated court staff to ensure the timely and seamless provision of services in French and French or bilingual proceedings going forward. Similarly, designation of French language services coordinators at the provincial and regional level, justices of the peace at the Ontario Court of Justice, and judges at each level of court, are recommended.

    To improve communication, the Committee recommended taking steps to increase awareness of the right to proceed in French at an early stage. Straightforward measures including signage, bilingual forms, and protocols to accurately track the need and use of French language services in the justice system will also improve communication.

    Harmonisation of existing legislation and procedures for offering services in French, and accessing French or bilingual proceedings, will ensure that litigants are able to exercise their French language rights at all points of contact along the chain of a proceeding. The Committee also recommended working together with municipal partners, police services, lawyers’ associations, court users, and the judiciary to implement procedures that ensure easy access to French language services in POA proceedings.

    The primary focus of the Committee’s recommendations is ensuring that those who seek French language services in Ontario’s courts are provided with effective service that is both cost and time effective. The courts, MAG, and other justice system stakeholders have demonstrated a sustained commitment in this regard, as evidenced by MAG’s Strategic Plan. Our Committee’s report offers opportunities for new thinking and better planning in the various parts of our justice system. It does not require a significant commitment of government resources not already dedicated to the provision of French language services in the justice system. Rather, the Committee is confident that equal access to justice in French is realistic, and achievable, in large part through the continuation and improvement of initiatives that are already under way. Once a comprehensive review of the requirement for bilingual judges and justices of the peace, and staff in each region, is carried out, a plan to ensure such resources are in place over time can be implemented. Ensuring access to justice for French speakers in Ontario demands no less.

    Part 6: Summary of recommendations

    The Committee’s conclusion and recommendations with respect to each of its findings are located in a box at the end of each section of analysis in this report. For ease of reference, those conclusions and recommendations are reproduced in this section of the report.

    6.1 Objectives for ensuring access to justice in French for French speakers

    Without an active offer of French language services in the courts of Ontario, and a clear service objective, French speakers may not be able to access equal French language services and feel truly comfortable in a system designed for English speakers.

    The Committee recommends that:

    1. The Attorney General:
      • Adopt a clear and coherent service objective for MAG. The objective should be to provide equal access to justice for the French-speaking community. This means that the French-speaking community has the right to receive services in French, in a timely way, in a manner that does not result in greater cost, and that is of a quality equal to the standard expected in English language proceedings.
      • Recommit to delivering French language services based on the concept of active offer.

    6.2 At present the judiciary may not be adequately informed of French language rights

    In order for Ontario to offer high quality services in French, knowledge of French language rights is essential for all judges and justices of the peace, whether or not they are bilingual. If members of the judiciary do not fully understand French language rights, there is little hope that the justice system will achieve equal access to justice in French.

    The Committee therefore recommends that:

    1. The Attorney General propose to the Chief Justices of each level of court that:
      • Education in French language rights be (i) included as part of the program offered to all newly appointed judges and justices of the peace, and (ii) considered as part of the courts’ continuing education programs.
      • Appropriate resources with respect to French language rights (including Bench Books and online resources) be made available to all judges and updated on a regular basis.
      • A mentoring program be considered where newly appointed bilingual judges and justices of the peace are mentored by their experienced bilingual colleagues.

    6.3 Laws governing French language rights do not ensure that all points of contact along the chain of a proceeding are in French

    The complexity of the legislation giving French speakers in Ontario access to justice in French presents difficulties for lawyers and litigants. There are gaps and ambiguities in the statutes that limit access to services in French. These problems foster the perception that language rights are not delivered in a consistent manner, or not given equal status in all courts.

    In order to address this problem, the Committee recommends that:

    1. The Attorney General:
      • Consider legislative and regulatory changes necessary to improve harmonization of the rights under the FLSA and the CJA, including harmonizing the designated areas under the FLSA and the CJA. When considering those changes, the language rights of the accused under the Criminal Code should be taken into account in order to improve the harmonization of rights under the Criminal Code with those under the FLSA and CJA.
    2. MAG:
      • Consider using technology to provide access to assistance from qualified French-speaking staff when court users seek to file court documents in French, by right or by agreement, in areas that are not designated under the FLSA.
      • Develop a strategy to assist court users in navigating Ontario’s bilingual justice system from the first point of contact and at every point thereafter in the chain of a proceeding.
      • Review the feasibility of providing French (or bilingual) bail hearings to everyone that has a right to a French (or bilingual) trial pursuant to s. 530 of the Criminal Code. If appropriate, seek the necessary amendments to the Criminal Code from the Government of Canada. Alternatively, consider voluntarily adopting a policy within MAG to make this service consistently available.

    6.4 Proceeding in French can be difficult, time-consuming and expensive

    French-speaking litigants are not necessarily informed of their French language rights early in the chain of a proceeding. Once advised, they may have already hired an English-speaking lawyer and be reluctant to change counsel and proceed in French. French speakers may find themselves appearing before a judge, or justice of the peace, who does not speak French if they are not alerted to, and able to exercise, their French language rights early on.

    Exercising the right to proceed in French early on also assists the court in scheduling the appropriate resources. This reduces court appearances and, in the criminal sphere, aligns with Justice on Target.

    To ensure equal access to justice in French, the Committee recommends that:

    1. MAG, in consultation with justice system partners:
      • review the forms and procedures in use for criminal, civil and family proceedings to ensure that justice system clients are informed of language rights at the earliest opportunity;
      • develop means of accessing those rights in a timely and cost efficient way; and
      • consider the need to adapt forms and procedures to account for regional differences (e.g., designated and non-designated areas, urban and rural areas, etc.).
    2. MAG, in consultation with police services and lawyers’ associations:
      • develop and implement procedures that ensure that persons are informed of their language rights at the earliest opportunity; and that French legal services are offered and made available at the same time as English legal services.
    3. MAG:
      • Take steps to increase the awareness of the right to French and bilingual proceedings through court notices, templates, documents and signage.
      • Consider ways of making French language services readily available in areas that are not designated under the FLSA. For example, those seeking to file French documents in areas that are not designated might be assisted by a toll-free telephone number.

    6.5 Procedures under the POA do not allow for seamless and easily accessible French language services

    The current POA system does not allow for seamless and easily accessible French language services. Given the extremely high volume of provincial charges prosecuted each year in Ontario, it is important to look for additional ways to assist POA Court partners in meeting the French language service objective.

    There is a strong need to continue collaborative work between the CSD, municipal partners, and French language service stakeholder groups to continue to improve the delivery of French language services in POA Courts.

    In order to ensure equal access to justice in French, the Committee recommends that:

    1. MAG, in consultation with representatives from municipalities, police services, lawyers’ associations, court users, and the judiciary:
      • Take into account the recommendations of the Law Commission of Ontario in developing an updated POA by considering proactive procedures to ensure that French speakers are informed at the earliest possible opportunity of their right to services in French and bilingual proceedings in POA Courts, and implement procedures to ensure that French language services are easily accessed, without delay or additional cost.
    2. MAG:
      • Propose working with municipal partners to develop seamless out-of-court services in French for the payment of parking infraction notices.
      • Propose working with the Ontario Court of Justice to explore mechanisms that could facilitate timely access to bilingual justices of the peace throughout the province, for example, by offering services over the phone or through video conferencing.
      • Continue to support the POA Table French Language Services Subcommittee to identify best practices and facilitate their widespread adoption by relevant offices, agencies and municipalities.

    6.6 The linguistic abilities, number, and placement of bilingual judges and justices of the peace is not necessarily determined in accordance with the need to ensure access to justice for French speakers

    The courts have different definitions of “bilingual judge”. At the Ontario Court of Justice, the interview process for bilingual judge candidates includes a portion in French during which the interviewer evaluates the candidate’s fluency in French. There is no evaluation of writing skills. At the Superior Court of Justice and the Court of Appeal for Ontario, judges self-identify as bilingual and there is no evaluation of oral or written French language competencies. Neither the Superior Court, nor the Ontario Court of Justice, has a formal process to assess French language judicial needs for a particular region.

    The Justices of the Peace Appointments Advisory Committee actively considers French language service needs throughout the entire application process by advertising and reaching out to the French-speaking community, and objectively evaluating candidates’ language competency. Prospective bilingual justices of the peace undergo an evaluation of their oral and written French abilities in accordance with MAG standards.

    In order to ensure equivalent access to justice in French, the Committee recommends that:

    1. The Attorney General:
      • Propose that every level of court adopt the same definition of a bilingual judge and justice of the peace.

    In order to ensure that there are sufficient qualified bilingual applicants for appointment as judges and that court users have the assurance that bilingual judges have met objective standards, the Committee recommends that:

    1. The Attorney General:
      • Propose to the Ontario Judicial Appointments Advisory Committee that it adopt a process similar to the one used by the Justices of the Peace Appointments Advisory Committee for the recruitment and evaluation of bilingual candidates.
      • Propose to the Minister of Justice that (i) it direct its Judicial Appointment Advisory Committees to develop a process for the recruitment and evaluation of bilingual candidates utilizing a similar standard to the one applied by the Justices of the Peace Appointments Advisory Committee; and (ii) that, for future appointments, persons appointed who met the criteria established to qualify as a bilingual candidate be identified, on appointment, as bilingual judges.
      • Propose to the Chief Justice of the Ontario Court of Justice that MAG and the court collaborate to: (i) carry out an assessment of the need for bilingual judges and justices of the peace in each region to meet the objective of promoting access to justice in French; and (ii) develop a protocol to ensure that, over time, the required number of bilingual judges and justices of the peace are appointed.
      • Propose to the Chief Justice of the Superior Court of Justice and the Chief Justice of Ontario that a process similar to that proposed to the Chief Justice of the Ontario Court of Justice be undertaken for the various regions of the Superior Court of Justice and by the Court of Appeal for Ontario. Following that review, the Commissioner for Federal Judicial Affairs Canada, and the Minister of Justice in conjunction with the Chief Justices, should consider collaborating to develop a protocol to ensure that, over time, the identified need for bilingual judges is filled.

    6.7 There is a need for greater co-ordination of bilingual court staff and enhanced awareness by all court staff of French language rights

    The ability of MAG to fulfill its service objective and provide an active offer of French language services depends on the effective management and staffing of designated bilingual positions. It would be beneficial to determine which positions are critical to the effective management of bilingual or French proceedings and to the delivery of French language services throughout the CSD.

    To ensure equal access to justice in French, the Committee recommends that:

    1. MAG:
      • Develop procedures in each region to ensure that there is timely and seamless provision of services in French.
      • Conduct an internal review of designated bilingual positions and the policies and procedures in place to ensure that appropriate bilingual staff continue to be available in future.

    6.8 There is a need for greater coordination within MAG, and between the judiciary and MAG, regarding the delivery of French or bilingual proceedings on a regional and provincial basis

    There is limited internal accountability for resolving French language services issues at an early stage, or for adequately integrating services. There is also a lack of communication regarding French language services between MAG and the judiciary. This has the potential to exacerbate existing problems.

    There is a lack of knowledge pertaining to French language services rights and of the application of these rights, which can lead to problems in the administration of French, or bilingual proceedings. A lack of French language services knowledge on the part of justice system staff and the public can occur at the court counter, or in the courtroom.

    In order to improve the coordination of the delivery of French, or bilingual proceedings on both a regional and provincial basis, the Committee recommends that:

    1. MAG:
      • Direct the CSD to designate a French language services coordinator, and consider designating a person in each region to coordinate French language services regionally, and promote a regional exchange of ideas and strategies for improving the availability and delivery of French language services.
      • Develop and implement procedures in consultation with the judiciary in each court region, that ensure timely and seamless services in French are provided from the point where a litigant asks for a French or bilingual proceeding, up until the completion of the proceeding.
      • Continue its collaborative work through the CSD with municipal partners and French language service’s stakeholder groups to improve the delivery of French language services in all areas, including POA Courts, by sharing tools and resources.
      • Take steps to respond to the challenges of training bilingual staff by ensuring that all staff are aware of the right to French language services, and MAG’s commitment to promote the availability and use of such services.
      • Ensure that the design and implementation of CIMS allows for tracking of French language proceedings and the use of French language services in the justice system.
      • Provide for regular consultation, both regionally and provincially, between the judiciary and CSD regarding French language services issues, and develop clear and measureable targets for improving the availability and delivery of those services.

    To ensure that delivery of French language services is coordinated with the judiciary and that problems are identified and resolved quickly, the Committee recommends that:

    1. The Attorney General:
      • Discuss with the Chief Justices of all levels of court the possibility of designating a justice of their court to be responsible for French language service issues.
      • Discuss with the Chief Justice of the Ontario Court of Justice, and the Chief Justice of the Superior Court the possibility of designating a justice in each region to be responsible for French language services in that region.

    6.9 There is inadequate coordination of the delivery of French or bilingual proceedings with the legal profession

    Some of the earlier recommendations in this report have included calling upon MAG to consult with lawyers’ associations in implementing improvements to the delivery of legal services in French across the province. The following recommendations are focused on the legal profession. Since the legal profession is self-governing, it is appropriate for the Attorney General to engage in discussions and make recommendations to the Law Society and to law schools.

    The Committee recommends that:

    1. The Attorney General, in cooperation with the Law Society and law faculties:
      • Explore measures to support language rights education, and French language training, as well as take steps to increase the number of lawyers able to provide legal services in French.
    2. The Attorney General propose to the Law Society that it:
      • Consider assessing language rights knowledge in the licensing process.
      • Collaborate with lawyers’ and paralegals’ associations where possible to develop strategies to enhance the knowledge of lawyers and paralegals of French language rights and services before the court system.
      • Collaborate with lawyers’ and paralegals’ associations, courts administration, Legal Aid Ontario, and other relevant stakeholders, to ensure that: (i) new clients are advised of relevant language rights; (ii) the cadre of French-speaking lawyers and paralegals in the province is known; and (iii) access to these lawyers and paralegals by French speakers who require their services, is facilitated.
    3. The Attorney General propose to Legal Aid Ontario that it:
      • Carry out a review of the availability and delivery of French language services, informed by the findings and recommendations in this report.

    Appendix:

    Bilingual Judicial Statistics

    (updated April 1, 2011)

    Federal Jurisdiction

    Number of federal bilingual judges by region.
    Region

    Court of Appeal - Bilingual

    Court of Appeal - Total

    Superior Court of Justice - Bilingual

    Superior Court of Justice - Total

    Office of the Chief Justice

    N/A

    -

    N/A

    -

    Toronto (GTA)

    4

    -

    14

    88

    East

    N/A

    -

    15

    44

    South West

    N/A

    -

    2

    32

    Central South

    N/A

    -

    4

    35

    North East

    N/A

    -

    8

    21

    North West

    N/A

    -

    1

    8

    Central East

    N/A

    -

    3

    43

    Central West

    N/A

    -

    3

    33

    Total

    4

    24

    50[162]

    304[163]

    Provincial Jurisdiction

    Number of bilingual judges and justices of the peace
    Region

    Judges (Bilingual)

    Judges (Total)

    Justices of the Peace (Bilingual)

    Justices of the Peace (Total)

    All

    35

    30 full-time and
    5 per diem

    325

    284 full-time and
    41 per diem

    36

    32 full-time and
    4 per diem

    398

    345 full-time and
    53 per diem


    [1]__ Justice Thorburn chaired the Sub-Committee which addressed the Committee’s first mandate.

    [2]__ Previous member from the Ontario Court of Justice: Justice Claude Paris.

    [3]__ Previous members from the Court Services Division: Brian Garrah, Jor Kassam. Previous members, from the Office of the Attorney General:
    Pam Hrick, Omar Khan and Kathleen Murphy.

    [4]_ R.S.C. 1985, c. C-46.

    [5]_ Courts of Justice Act, R.S.O. 1990, c. C.43.

    [6]_ French Language Services Act, R.S.O. 1990, c. F.32.

    [7]_ See Office of the Coordinator of French Language Services for the Justice Sector, Strategic Plan for the Development of French Language Services in Ontario’s Justice Sector (Toronto: Ministry of the Attorney General, 2006), online: <http://www.sciencessociales.uottawa.ca/crfpp/pdf/plan_strategique-Avr2007_e.pdf> [Strategic Plan].

    [8]_ Provincial Offence Act, R.S.O. 1990, c. P.33.

    [9]_ Statutory language rights are discussed below in Section 2.1.

    [10] The Committee’s findings and recommendations are set out below in Part 4. A summary of the Committee’s recommendations is provided in Part 6.

    [11] Justice on Target is the province’s strategy to reduce delays in Ontario’s criminal courts. This initiative was launched in 2008.

    [12] Ontario, Office of the French Language Services Commissioner, Annual Report 2008-2009: One Voice, Many Changes, (Toronto: Office of the French Language Services Commissioner, 2009). Ann Merritt, Assistant Deputy Attorney General, CSD, provided the Committee with a summary of these complaints dated January 25, 2011.

    [13] Canada, Commissariat aux langues officielles, Rapport annuel 2000-2001: en ligne <http://www.ocol-clo.gc.ca/html/ar_ra_2000_01_f.php>

    [14] Supra note 12 at 36.

    [15] Ibid. at 35.

    [16] Ibid. at 37.

    [17] The Committee’s mandates are set out in Section 1.1.

    [18] Constraints on time and resources did not permit the Committee to specifically deal with concerns related to other types of judicial officers, including for example Deputy Judges of the small claims court, Masters and Registrars in Bankruptcy. The Committee acknowledges that these judicial officers also need to play a role in the provision of French language services. The assessment of the linguistic abilities, number and placement of these judicial officers should be completed by the courts that they are attached to.

    [19] R. v. Mercure, [1998] 1 S.C.R. 234 at 269.

    [20] Mahe v. Alberta, [1990] 1 S.C.R. 342 at 362.

    [21] Ibid. and R. v. Beaulac, [1999] 1 S.C.R. 768 at para. 25 [Beaulac].

    [22] Beaulac, ibid.

    [23] For example, the preamble to the FLSA explains that the legislation was enacted to recognize “the contribution of the cultural heritage of the French-speaking population”
    and because the government “wishes to preserve [the cultural heritage] for future generations.”

    [24] For example, the FLSA does not provide for French services in “non-designated areas” under the Act. This is discussed in greater detail below.

    [25] Section 530(1).

    [26] Section 530.01 requires a prosecutor, on application of the accused, to provide a copy of the information, or indictment, translated into the official language used
    by the accused. Section 532 promotes the expansion of judicial bilingualism by providing that broader provincial legislative provisions take precedence over language rights afforded under the Criminal Code. Finally, s. 849(3) requires that pre-printed forms in Part XXVIII of the Criminal Code (such as search warrants and appearance notices) be printed in both official languages.

    [27] Section 125(2).

    [28] This is in contrast to the substantive rights conferred by s. 530(1) of the Criminal Code.

    [29] Bilingual Proceedings, O. Reg. 53/01. Section 4 of the regulation stipulates that a defendant may require that the proceeding under the POA be conducted as a bilingual proceeding and be presided over by a judge or officer who speaks both official languages.

    [30] The areas named in Schedule 2 of the CJA are not identical to the designated areas under the FLSA. This discrepancy is discussed in Section 4.3.1.

    [31] Section 5(1).

    [32] Ontario, Office of Francophone Affairs, Map of Designated Areas, online: Office of Francophone Affairs <http://www.ofa.gov.on.ca/en/flsa-mapdesig.html>.

    [33] FLSA Schedule.

    [34] Ontario, Office of Francophone Affairs, The French Language Services Act: An Overview, online: <http://www.ofa.gov.on.ca/en/flsa.html>.

    [35] French services are also offered online at ServiceOntario, <http://www.ontario.ca/en/services_for_residents/index.htm>.
    Agencies funded in whole or in part by the Government of Ontario may choose to request an official designation from Cabinet. To receive designation, an agency must: (i) offer quality services in French on a permanent basis; (ii) guarantee access to its services in French; (iii) have French speakers on its board of directors and in its executive; and (iv) develop a written policy for services in French that is adopted by the board of directors and that sets out the agency’s responsibilities with respect to services in French. Currently, 14 public service agencies designated under the FLSA relate to the justice system. There are also government-funded stand-alone Francophone community agencies that serve the French-speaking population. (See Designation of Public Service Agencies, O. Reg. 398/93).

    [36] Provision of French Language Services on Behalf of Government Agencies, O. Reg. 284/11.

    [37] MAG alone has more than 100 third party service providers.

    [38] Supra note 36. The active offer principle is discussed further in Section 2.3.

    [39] The Honourable Warren K. Winkler Chief Justice of Ontario, “Access to Justice – Remarks” (address delivered at the Canadian Club of London, London, 30 April 2008), online: Court of Appeal for Ontario <http://www.ontariocourts.ca/coa/en/ps/speeches/accessjustice.htm>.

    [40] Beaulac, supra note 21 at para. 34.

    [41] Statistics Canada, Population by knowledge of official language, by Province and Territory (2006 Census), online: Statistics Canada <http://www.statcan.gc.ca/tables-tableaux/sum-som/l01/cst01/demo15-eng.htm>. Ontario’s 582,000 French-speaking residents comprise the largest French-speaking community in Canada outside of Quebec. Statistics Canada, Francophone Population of Ontario (2006 Census), online: Ontario Office of Francophone Affairs <http://www.ofa.gov.on.ca/en/franco-06map-stat.html>. See also the Office for Francophone Affairs, Francophones in Ontario, Francophone Population of Ontario, online: <http://www.ofa.gov.on.ca/en/franco-06map-stat.html>. The Office of Francophone Affairs defines Ontario’s Francophone population as “those persons whose mother tongue is French, plus those whose mother tongue is neither French nor English but have a particular knowledge of French as an Official Language and use French at home”.

    [42] For example, the individual may have to take another day off work and attempt to retain a French-speaking lawyer.

    [43] This dilemma is discussed in Section 4.3.7.

    [44] The Committee consulted with the Offices of the Chiefs, the Judicial Appointments Advisory Committee, the Justices of the Peace Appointments Advisory Committee and other legal associations. The Committee’s methodology is described in Section 3.1.

    [45] MAG informed the Committee that there are no reliable statistics relating to bilingual proceedings. While the CIMS is expected to track this important data, it remains unclear when CIMS will begin to track statistics relating specifically to French proceedings. This data will not be tracked in the first version of CIMS to be released in 2012.

    [46] See e.g. DesRochers v. Canada (Industry), 2009 SCC 8, [2009] 1 S.C.R. 194 (in the context of the Official Languages Act, R.S.C. 1985, c. 31 (4th Supp)). Since 2006, the importance of involving the French language community is taken into consideration with MAG’s Strategic Plan. This process brings together groups of stakeholders and managers to work together to improve access to justice.

    [47] Using technology as a potential solution is explored further in Sections 4.3.3 and 4.3.6.

    [48] Ontario, Ontario Public Service, OPS Framework for Action: A Modern Ontario Public Service (2006).

    [49] The preamble of the FLSA states that “it is desirable to guarantee the use of the French language in institutions of the Legislature and the Government of Ontario, as provided in this Act”.

    [50] The 2006 OPS Framework for Action builds upon the concept of an active offer of service.

    [51] Linda Cardinal, Nathalie Plante and Anik Sauvé, From Theory to Practice: Mechanisms for the Offer of French Language Services in Ontario’s Justice Sector, vol. 2 (Ottawa: University of Ottawa, 2010).

    [52] Ibid at 7.

    [53] Ontario, Office of the French Language Services Commissioner, Annual Report 2009-2010: Open for Solutions, (Toronto: Office of the French Language Services Commissioner, 2010) at 13-14.

    [54] Ontario, Office of the French Language Services Commissioner, An Investigation Report regarding an English-only H1N1 Flyer: From Communication Crash to Communication Coup, (Toronto: Office of the French Language Services Commissioner, 2011).

    [55] Ibid. at 35.

    [56] Supra note 12, at 36.

    [57] Belende v. Patel, 2008 ONCA 148 at para. 24.

    [58] See e.g. Nicol Simard “Le manque de juges bilingues continue à se faire ressentir”, L’Action (18 January 2006); Gérard Lévesque “Quand Toronto faisait partie du Québec”, L’Express (12 August 2008); “Une clinique d’aide juridique pour les personnes francophones à Toronto”, Canadian Newcomer Magazine.

    [59] Graham Fraser appeared before the House of Commons Standing Committee on Official Languages in his capacity as Official Languages Commissioner on May 8, 2008. Canada, Commissariat aux langues officielles, Comparution devant le Comité permanent des langues officielles de la Chambre des communes (Ottawa, 8 mai 2008), en ligne <http://www.ocol-clo.gc.ca/html/speech_discours_08052008_f.php>.

    [60] The Committee’s methodology is described in Section 3.1.

    [61] This information was provided by Chief Justice Heather Forster Smith, April 20, 2010, in response to a questionnaire administered by a private consultant on behalf of the Commissioner of Official Languages for Canada.

    [62] Supra note 58.

    [63] AJEFO’s membership is primarily made up of French-speaking lawyers working in Ontario. There were 78 respondents to the survey.

    [64] This unpublished survey was conducted in November and December 2010.

    [65] Supra note 45.

    [66] The cycles examined reflect the local reality in Sault Ste. Marie, Sudbury, Durham and Windsor.

    [67] The Strategic Plan was undertaken in 2006, and renewed in 2011 for an additional four years. The participating justice sector ministries have accomplished several structuring and promising actions within their divisions. The progress reports submitted during each annual Francophone stakeholders meeting illustrate the efforts accomplished by each division to carry out the guiding principles and the mission of the Strategic Plan. The stakeholders are not only an integral part of the consultation process, but also in the implementation of several projects responding directly to the needs of the Francophone community. In March 2011, during the annual Francophone stakeholders meeting, the Justice Sector reiterated its commitment to the Francophone community to continue this fruitful collaboration by renewing the Strategic Plan – Phase 2, for an additional four years.

    [68] The website is available in both official languages and provides court users with information about their rights to French language services in Ontario.

    [69] This involves a bilingual signage standard that makes it easier for all court users to find their way around the courthouse.

    [70] This is accomplished through the French Language Institute for Professional Development (FLIPD), lunch and learn sessions, mandatory training on French language services, as well as launching the French language services orientation package for all new employees.

    [71] Including partnering with bilingual colleges and universities to encourage interested bilingual candidates to apply for designated bilingual positions in the courts.

    [72] French language training is available for judges. For English-speaking judges, French as a second language tutoring is available through the Office of the Commissioner for Federal Judicial Affairs. For bilingual judges, there are courses in French one week per year in Québec City and legal terminology training is available through the Office of the Commissioner for Federal Judicial Affairs. The Superior Court of Justice also has a mentoring program, but it is not specifically designed for bilingual judges.

    [73] A one-week French language training course in Québec City has been reinstated for provincial judicial appointees.

    [74] Ontario Court of Justice, Justice of the Peace Education Plan, online: <http://www.ontariocourts.ca/jprc/en/education_plan.htm>.

    [75] We understand that the Superior Court of Justice has commenced work on this important task.

    [76] It was suggested that all newly appointed bilingual justices of the peace would benefit from being mentored by bilingual justices of the peace to share practical experience related to bilingual proceedings. Similarly, all three Ontario courts could ensure that there is a bilingual mentoring program where mentoring programs are already in place.

    [77] Department of Justice, Access to Justice in Both Official Languages, Support Fund Case Studies: Final Report (Ottawa: Department of Justice, 2011) at 82.

    [78] In 1976, the first French language services program was established in the courts of Ontario: a bilingual provincial court, Criminal Division, was set up in Sudbury. The CJA was amended to provide for bilingual proceedings in 1984 and the FLSA was enacted in 1986.

    [79] The reverse may also be true. Kingston recently became the 25th designated area under the FLSA. French-speaking court users may now access French language services at the counter in Kingston, but they are still not entitled to a bilingual proceeding with a jury (as per the CJA).

    [80] Section 530.1 of the Criminal Code sets out a number of ancillary rights and obligations that apply when an order is made to allow an accused to stand trial in French.

    [81] FLSA, s. 126(2)(7) (in non-Schedule 2 designated areas, a party may file pleadings and other documents written in French if the other parties consent).

    [82] Ibid., s. 126(2)(6).

    [83] Under s. 126(4) of the CJA a document filed by a party before a hearing in a proceeding in the Family Court of the Superior Court of Justice, the Ontario Court of Justice or the Small Claims Court may be written in French.

    [84] Supra note 83.

    [85] Supra note 29.

    [86] Ibid., ss. 11-14.

    [87] Ibid., ss. 3-5.

    [88] Section 532 of the Criminal Code provides that broader provincial legislative provisions take precedence over language rights afforded under the Criminal Code.

    [89] Nicholas Bala and Rachel Birnbaum, “Family litigants without lawyers” The Lawyers Weekly (5 August, 2011), online: Lawyers Weekly <http://www.lawyersweekly.ca/index.php?section=article&articleid=1465>.

    [90] For example, a complainant in Newmarket requested a French hearing. When he attended court, he was advised that since he spoke English he did not require French language services. A bilingual court clerk explained to the complainant that another date would have to be chosen if he still wished to proceed with the hearing in French. Not wanting to take another day off work, the complainant agreed to proceed in English.

    [91] In the Court of Appeal for Ontario, weeks where a bilingual panel is sitting frequently remain available for the scheduling of bilingual matters even where English only matters are given later hearing dates. The same is true of bilingual POA Courts in many regions.

    [92] The dilemma faced by lawyers when advising clients about the right to proceed in French is discussed further in Section 4.3.7.

    [93] The impact of the judge’s leadership in setting the tone for the meaningful exercise of French language rights is discussed further in Section 4.3.4. In an April 2011 endorsement, a judge of the Superior Court of Justice in Peterborough stated that interpretation services are the responsibility of the applicant, not of the court. The FLS Commissioner launched an investigation, and stated that citizens have a right to a bilingual trial in Ontario, whether they live in a designated area or not. By contrast, in Belende v. Greenspoon and Lasman, 2004 CanLII 5552 (ONCA), the appellant appeared before the Deputy Registrar on a motion to strike the appeal. He made his submissions in French and an interpreter translated so that the Registrar could understand. The court held that since the appellant’s Notice of Appeal was filed in French, he was deemed to have specified that all future hearings in the Court of Appeal were to be presided over by a judge or officer who speaks French and English. The Registrar who heard the motion did not speak French, thus, the appellant’s right to proceed in French, pursuant to s. 126(3) of the CJA, was breached.

    [94] Canada, Department of Justice, Environmental Scan: Access to Justice in Both Official Languages, Final Report submitted to Justice Canada by GTA Research, online: Department of Justice <http://www.justice.gc.ca/eng/pi/franc/enviro/index.html>, chapter 10: Ontario.

    [95] Ibid.

    [96] Ibid.

    [97]_ Clear notification of French language rights exists in some, but not all, court documents.

    [98]_ This practice is already in place in some areas of the province, including Sudbury.

    [99]_ This information form was developed as part of Ontario’s Justice on Target strategy to reduce delays in Ontario’s criminal courts.

    [100] Law Commission of Ontario, POA Interim Report Press Release, online: <http://www.lco-cdo.org/en/provincial-offences-interim-report-press-release>.

    [101] Supra note 29.

    [102] Supra note 12 at 35-37. In 2009 and 2010 there was an average of 5 complaints received each year.

    [103] Ibid.

    [104] Ontario MAG, Provincial Offences Act: What is the Provincial Offences Act? online: Ontario MAG <http://www.attorneygeneral.jus.gov.on.ca/english/justice-ont/french_language_services/rights/provincial_offences_act.asp>.

    [105] POA Courts administer many regulatory proceedings, including traffic matters under the Highway Traffic Act, R.S.O. 1990, c. H.8, insurance issues, alcohol-related and trespassing offences, violations under the Occupational Health and Safety Act, R.S.O. 1990, c. O.1, and the Environmental Protection Act, R.S.O. 1990, c. E.19, and municipal by-law violations.

    [106] Supra note 104.

    [107] Supra note 6, ss. 1, 14.

    [108] A parking infraction notice must be delivered in French and English only if the municipality is in a designated area and has passed a bylaw adopting the provisions of the FLSA.

    [109] On January 25, 2011, MAG provided the Committee with a list of formal complaints received in 2009 and 2010. Ten related to the POA. The unavailability of a justice of the peace may well be the result of a scheduling error committed by municipal court staff.

    [110] In Ottawa, a complainant, who had filled out the “Notice of Intention to Appear” form in French, arrived to discover that while the provincial prosecutor was bilingual, the justice of the peace was a unilingual English speaker. Not wanting to adjourn, the complainant was forced to proceed in English. As noted in Section 4.3.2, the delay in obtaining a French trial has, in some cases, had the effect of encouraging people who may or may not be able to speak French, to request a French trial in the hope that the prosecution will be jeopardized because of delay.

    [111] Supra note 90.

    [112] A complainant in Toronto requested a court appearance in French, however, the “Notice of Trial” was sent in English. The complainant called the CSD French telephone line but such line was not answered. As a result, the complainant was forced to speak to an employee in English. In a separate case, a complainant in Toronto filled out a “Notice of Intention to Appear” form in French only to receive a “Notice of Trial” in English. When the complainant went to the Toronto North court, the complainant was told that French language services were not available at that location. The trial was consequently adjourned and the complainant was referred to another court. In a similar incident at the Caledon court, a complainant filled out the “Notice of Intention to Appear” form in French. However, the complainant received a “Notice of Trial” in English. Upon attending the Caledon courthouse, the complainant found that both the justice of peace and the Crown counsel were not bilingual. As a result, the trial had to be adjourned.

    [113] In many areas, even though an individual is entitled to a bilingual trial pursuant to the provisions of the CJA, the individual will not necessarily receive French language services, including counter services, prior to the actual trial. This was the experience of a complainant in Lindsay, a non-designated area under the FLSA, who received written information regarding bilingual proceedings but could not obtain answers to her inquiries in French when she telephoned the number provided in the information document.

    [114] Law Commission of Ontario, Modernization of the Provincial Offences Act: A New Framework and Other Reforms – Final Report, (Toronto: Law Commission of Ontario, 2011).

    [115] Ibid. at 138.

    [116] For example, a section could be added to forms used by all law enforcement officers notifying individuals of their right to bilingual proceedings, similar to the one included in the “Notice of Intention to Appear” form.

    [117] The provincial system <www.paietickets.ca> is available in both languages. However, not all municipal court offices offer this service. For example, the City of Toronto online parking infraction payment system is available only in English.

    [118] Supra note 114 at 137. Recommendation 39, addressed to MAG (or the body responsible for developing the newly updated POA procedural code) suggests a need to “review the use of telephone and videoconference hearings…for their effectiveness, fairness and efficiency and recommend any improvements as it may deem appropriate.”

    [119] Currently, s. 8 of Ontario Regulation 949, R.R.O. 1990, Parking Infractions, under the POA, stipulates that forms used in cases under the regulation are available in English or French, or both. The municipality can opt for the language of its choice in managing these types of offences. In some municipalities, clients are only notified of their French language rights if they want to dispute the parking infraction and they become involved in some part of the judicial process administered by the municipal courts under the CJA.

    [120] Supra note 77.

    [121] See the discussion of delay, additional cost, and inferior service in Section 4.3.2.

    [122] Absent exceptional circumstances, the Committee is of the view that language training after appointment should not be relied on to turn a unilingual judge or justice of the peace into a bilingual judge or justice of the peace.

    [123] Under s. 530(1) of the Criminal Code sets out the right to be tried before a justice of the peace, provincial court judge, judge or judge and jury, who speaks the official language of Canada that is the language of the accused or, if the circumstances warrant, who speak both official languages of Canada.

    [124] Under s. 126(2)(1) of the CJA, the right is established to hearings that shall be presided over by a judge or officer who speaks English and French.

    [125] It is important to recognize that different proceedings require different levels of French language ability. For example, the language ability required to preside over a trial is far greater than the ability needed to review written submissions.

    [126] These standards represent the highest level of French language proficiency required in designated bilingual positions within the provincial and federal public service. For a detailed description of these standards see: <http://www.bonjour-hello.ca/DATA/ON/MEDIA/Description_Proficiency_Levels_Ontario.pdf> (Government of Ontario) and <http://www.tbs-sct.gc.ca/gui/squn03-eng.asp> (Government of Canada).

    [127] At the Ontario Court of Justice, there are currently 32 full-time and four per diem bilingual justices of the peace out of a total of 398 justice of the peace positions. See the Appendix for the bilingual judicial statistics of the other levels of court.

    [128] Supra note 126.

    [129] A provincially certified evaluator assesses the candidate’s oral proficiency during the interview process and provides an opinion on the candidate’s written proficiency.

    [130] For example, in the Northeast and East regions, the Judicial Advisory Appointments Committee informally consults with members of the Bar and Bench to determine the French language abilities of a prospective candidate for appointment to a bilingual judge position.

    [131] Part of the problem is that reliable statistics are not available, supra note 45.

    [132] In 2008 approximately 150 matters were heard in French at the Superior Court of Justice out of a total of approximately 200,000 proceedings initiated, supra note 61. The number of bilingual hearings does not accord with the total French-speaking population (five per cent of Ontario’s population). See the definition of Francophone, supra note 40.

    [133] For example, in a centre with one bilingual judge, if that judge becomes ill or discovers a personal conflict of interest in respect of a matter close to the date of the proceeding, replacing them frequently causes delay. Further, if there is a bilingual motion in an outlying centre without a bilingual judge, a bilingual judge will be sent to hear the matter and will usually stay for an entire week, even if the bilingual matter lasts less than half a day. For the remainder of the week, that bilingual judge is unlikely to be available to be redeployed to another area of the province. Justices of the Peace are required to work in various courthouses and therefore, if assigned to a POA Court, will not be in the same building where criminal matters are being heard, though they may be in the city itself. Additionally, many of the matters dealt with by a Justice of the Peace are not pre-scheduled (for example, surety applications, overnight detainees held for bail, and applications under the Mental Health Act, R.S.O. 1990, c. M.7), thus a bilingual Justice of the Peace cannot be assigned and may not be available at the last minute.

    [134] There may be unique regional factors that should to be taken into account. For example, a number of communities located along the highway 401 corridor between Windsor and Montreal are predominately English-speaking. However, many people travelling to and from Quebec, including a significant proportion of people who speak only French, pass through these communities and encounter the court system, particularly in relation to Highway Traffic Act violations.

    [135] Supra note 94, at Chapter 10.

    [136] Canada, Office of the Commissioner of Official Languages, Final Investigation Report on the Institutional Bilingual Capacity of the Judiciary for the Superior Courts in Nova Scotia and Ontario, 2011 at 16.

    [137] French language services are now an integral part of each ministry’s annual Results-based Plan which includes specific performance measures on designated bilingual positions. Submissions are reviewed and signed off by the Deputy Attorney General, then forwarded to the Treasury Board for evaluation and comment. These submissions reflect directly on the Ministry’s overall performance.

    [138] Human resources practices relating to designated bilingual positions have apparently been inconsistent across the Ontario Public Service according to the FLS Commissioner who, in his 2008-2009 annual report, supra note 12, at 21, recommended that a mandatory policy on human resources for French language services be developed to help the Government of Ontario meet the legal requirements of the FLSA and to ensure the delivery of quality services in French across government departments. In response to this recommendation the Office of Francophone Affairs, in partnership with the Human Resources Management and Corporate Policy Division of HROntario, has clarified policy direction on the designation, staffing and de-designation of bilingual positions in the Ontario Public Service. This policy direction was effective in June 2011. It does not bring substantive changes to existing guidelines on designated bilingual positions, but it ensures a coherent approach across the Ontario Public Service.

    [139] The Coordinator of French language services is an internal justice sector resource.

    [140] Each region is managed by a Director of Court Operations who reports to the Assistant Deputy Attorney General of the CSD. Supervisors of Court Operations generally report to the Managers of Court Operations, who in turn report to the Director of Court Operations.

    [141]For example, the dates for bilingual appeal weeks are fixed in advance and slots are held open to accommodate French language appeals, even when this means that some English hearings are scheduled for later dates. As a result of this procedure French hearings in some cases will be scheduled sooner than English hearings, in other cases French hearings will be scheduled later than English hearings. The Court of Appeal for Ontario also provides for ad hoc bilingual panels to be struck where an urgent issue arises.

    [142] For example, Justice Ontario is an online portal to the justice system that includes: (i) easy-to-use information on family law, criminal law, lawsuits and disputes, human rights, estate planning and tickets and fines; (ii) easy access to legal resources such as lawyer referral services and family law information centres; and (iii) toll-free telephone access to the same information in 173 languages.

    [143] Currently 11 divisions are taking part in the Strategic Plan. Under MAG these include: CSD, Criminal Law Division, Legal Aid Ontario, and Victim and Vulnerable Persons Division (Office of the Public Guardian and Trustee and Office of the Children’s lawyer). Under the Ministry of Community Safety and Correctional Services these include: Ontario Provincial Police, Emergency Management Ontario, Correctional Services Division (Institutional Community Services), and Ontario Police College and Ontario Fire College.

    [144] The information, developed in collaboration with French-speaking stakeholders, includes: (i) specific French language services content to inform French speakers about their rights to services in French under various pieces of legislation; (ii) a list of resources describing where to obtain services in French; (iii) information on French-speaking statistics (compiled by the University of Ottawa in the context of an environmental scan); and (iv) links to justice sector stakeholder websites.

    [145] These training initiatives include: Pour l’amour du français, French Lunch Hour Forum, Long Distance Training, “French language services and You” Video, The French Language Services Orientation Package, French Language Services Integration Checklist, Aide-mémoire, and The Toolbox - Providing Services in French.

    [146] PRA Inc., Canada-Wide Analysis of Official Language Training Needs in the Area of Justice (submitted to the Department of Justice, March 31, 2009), online: Department of Justice < http://www.justice.gc.ca/eng/pi/pb-dgp/ana_ol-ana_lo/final_report_en.pdf> at 36.

    [147] The project was coordinated by the OCFLS in collaboration with MAG’s Criminal Law Division and AJEFO.

    [148] The Committee is aware of several complaints from French speakers about incorrect or missing bilingual signs. In October 2011, a media article stated that MAG signs at the Burlington courthouse did not have any French accents. The article also indicated that the signs inside the Small Claims Court say there are only “court rooms”, no ‘salles d’audience’. See Gérard Lévesque, « Pour mettre les accents là où il le faut… » L’Express (11 October, 2011).

    [149] Law Society of Upper Canada, Rules of Professional Conduct, (Toronto: Law Society of Upper Canada, 2000).

    [150] The French Common Law program at the University of Ottawa is a notable exception.

    [151] The Law Society and AJEFO have together developed a brochure entitled “Vous avez un client ou une cliente qui parle français – You have clients who speak French” aimed at educating the bar about these rights. More such initiatives would be desirable.

    [152] Rule 2.02.

    [153] In some cases a French-speaking accused may still wish to exercise the right to a French, or bilingual trial even though his or her lawyer cannot speak French. For example, the accused may choose to testify and prefer to be understood, without translation, by the judge or judge and jury.

    [154] In addition, the AJEFO will attempt to find a French-speaking practitioner outside its own list if a member of the public makes an inquiry.

    [155] Since the number of bilingual lawyers in Ontario is limited, and the French-speaking population is spread over an expansive geographic area, it is likely that French speakers in many areas of the province have difficulty retaining a bilingual lawyer to handle their civil or criminal matter.

    [156] There are 77 independent community legal clinics in Ontario.

    [157] Designation of Public Service Agencies, supra note 35.

    [158] Advice telephone lines are available in Eastern Ontario, Northern Ontario and parts of Central Ontario, the Greater Toronto Area, and the South-west region.

    [159] R.S.O. 1990, c. L.8.

    [160] Ibid, s. 4.2(2).

    [161] For example, in 2007 the Carrières en justice site, www.carrieresenjustice.ca was launched by the AJEFO. This project is aimed at the sustainability of French language services. Specifically, it aims to make French-speaking students aware of how the justice system works, and stimulate their interest in various careers in the justice system.

    [162] Note that the Superior Court of Justice reported a complement of 52 bilingual judges in 2008, supra note 61. This statistic included a breakdown of each bilingual judge’s self-identified ability to hear matters in French. A similar breakdown based on ability was not available for the 2011 statistic.

    [163] This number includes supernumerary judges.