This report sets out a road map to make the by PNz796m

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									Access to justice in French

Judicial Appointment Committees
Attorney General
Judges / Justices of the Peace
Legal Education
Lawyers
Court Services Division


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

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
FRENCH LANGUAGE SERVICES BENCH AND BAR ADVISORY COMMITTEE ................ 6

LIST OF ACRONYMS AND ABREVIATIONS ........................................................... 7

EXECUTIVE SUMMARY ...................................................................................... 8

PART 1: INTRODUCTION ............................................................................... 11
  1.1 COMMITTEE BACKGROUND ..................................................................... 11
  1.2 STRUCTURE OF THE REPORT .................................................................. 12

PART 2: FRENCH LANGUAGE RIGHTS AND ACCESS TO JUSTICE IN ONTARIO ....... 13
  2.1 FRENCH LANGUAGE RIGHTS .................................................................. 13
      Criminal Code ...................................................................................... 15
       Courts of Justice Act ............................................................................. 15
       French Language Services Act ................................................................. 16

  2.2 ACCESS TO JUSTICE ............................................................................. 17

  2.3 OBJECTIVES FOR ENSURING ACCESS TO JUSTICE IN FRENCH
      FOR FRENCH SPEAKERS ........................................................................ 19
       Service Objective .................................................................................. 20
       Active Offer Objective ........................................................................... 21

PART 3: COMMITTEE MANDATES .................................................................... 24
  3.1 METHODOLOGY .................................................................................... 26

PART 4: FINDINGS AND RECOMMENDATIONS .................................................. 28
  4.1 SUMMARY OF THE COMMITTEE’S FINDINGS ............................................. 28
  4.2 FIRST MANDATE – INCREASING THE KNOWLEDGE OF THE JUDICIARY
      WITH RESPECT TO LANGUAGE RIGHTS IN THE JUSTICE SYSTEM................. 30
       4.2.1 At present the judiciary may not be adequately informed
            of French language rights .............................................................. 30

  4.3 SECOND MANDATE – ADDRESSING THE SHORTAGE OF BILINGUAL MEMBERS
      OF THE JUDICIARY IN ONTARIO .............................................................. 33
       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 ............................ 33
       4.3.2 Proceeding in French can be difficult, time-consuming and expensive .. 37
       4.3.3 Procedures under the POA do not allow for seamless and
          easily accessible French language services. .......................................... 42
       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 ........... 48
       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 .......... 56
       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 ......................................... 59
       4.3.7 There is inadequate coordination of the delivery of French
       or bilingual proceedings with the legal profession....................................... 65

PART 5: CONCLUSION .................................................................................. 72

PART 6: SUMMARY OF RECOMMENDATIONS ..................................................... 74

APPENDIX: BILINGUAL JUDICIAL STATISTICS ................................................. 82
FRENCH LANGUAGE SERVICES BENCH AND Bar ADVISORY COMMITTEE
CO-CHAIRS
Paul Rouleau             Judge, Court of Appeal for Ontario
Paul LeVay               Vice-President, Association des juristes d’expression française
                         de l’Ontario
MEMBERS
Julie Thorburn1          Judge, Superior Court of Justice
Paul Bélanger            Judge, Ontario Court of Justice2
Sheila Bristo            Director, Court Services Division3, Divisional Support Branch
Josée Bouchard           Equity Advisor, Law Society of Upper Canada
Josée Boulianne          Manager, Court Services Division, Court Operations, E. Region
Jeremy Griggs            Senior Manager, Court Services Division, Provincial Offences Act
                         and Operational Support Units
Hanny Hassan             Chair, Ontario Judicial Appointments Advisory Committee
Brian Lennox             Executive Director, National Judicial Institute
Danielle Manton          Executive Director, Association des juristes d’expression
                         française de l’Ontario
Sonia Ouellet            Former Executive Director, Association des juristes d’expression
                         française de l’Ontario
Angela Renaud            Justice of the Peace, Ontario Court of Justice
Seth Rudin               Chair, Justices of the Peace Advisory Appointments Committee
RESOURCE SUPPORT
Elizabeth Bucci          Crown counsel, Ministry of Attorney General
Sabine Derbier           French Language Services Coordinator, Ministry of the Attorney
                         General
Danielle Mulaire         Law Clerk, Court of Appeal for Ontario
Etienne Saint-Aubin      Legal Director, Cornwall Legal Clinic
Shirley Smiley           Law Clerk, Court of Appeal for Ontario




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.
LIST OF ACRONYMS AND ABREVIATIONS

AFMO               Association française des municipalités de l’Ontario
AJEFO              Association des juristes d’expression française de l’Ontario
CIMS               Case Information Management System
CJA                Courts of Justice Act
Committee          French Language Services Bench and Bar Advisory Committee
                   to the Attorney General
CSD                Court Services Division (Ministry of the Attorney General)
FLIPD              French Language Institute for Professional Development
FLS Commissioner   French Language Services Commissioner
FLSA               French Language Services Act
Law Society        Law Society of Upper Canada
MAG                Ministry of the Attorney General
OCFLS              Office of the Coordinator of French Language Services
POA                Provincial Offences Act
POA Court(s)       Provincial Offences Act Court(s) (Municipal Court(s))
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 Code4, s. 126 of the CJA5, and s. 5 of the FLSA6.

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.




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.
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.




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].
Third, the procedures under the POA8 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.




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



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
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) 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.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.




     <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.
In Part 3, we return to the Committee’s two specific mandates17 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.




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.
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.

The current legislative scheme for French language rights in Ontario is articulated in
three pieces of legislation: the Criminal Code, the CJA, and the FLSA. These pieces of
legislation confer and confirm the official status of the French language in the justice
system.

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




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.”
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




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
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




     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,
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 behalf37 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




     <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>.
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. However, the choice is more difficult for
the nearly 50,000 Ontarians who speak French and not English.41 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




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”.
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.



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.
Service Objective

The Committee’s research and consultations44 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



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.
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 Sector51, 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.




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).
     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.




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.
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




56   Supra note 12, at 36.
57   Belende v. Patel, 2008 ONCA 148 at para. 24.
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 media58 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




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.
AJEFO63 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:

      • focused on the analysis of resources that currently exist in the field of language
        rights education;

      • highlighted current best practices; and

      • made recommendations and observations while remaining cognisant and
        respectful of the fact that the judiciary has exclusive responsibility for the
        education of judges and justices of the peace.

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



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.
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
proceedings66 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.




65   Supra note 45.
66   The cycles examined reflect the local reality in Sault Ste. Marie, Sudbury, Durham and
     Windsor.
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:

   • French language rights are not clear and coherent and do not ensure that all
     points of contact along the chain of a proceeding are in French.

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

   • The procedures under the POA do not allow for seamless and easily accessible
     service in French.

   • The linguistic capabilities, 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 for French speakers.

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

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

   • There is inadequate coordination of the delivery of bilingual and French
        proceedings with the legal profession.

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:

      • Promotion of French language services through bilingual court forms, the Justice
        Ontario website68, and the Courthouse way-finding pilot project69.

      • Providing training and support to MAG staff.70

      • Resources dedicated to attracting qualified bilingual staff to apply for designated



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.
        bilingual positions in the courts.71

      • The provision of best practice recommendations to POA municipal partners
        (returned to in Section 4.3.3 of this report).

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.




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.
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 Plan74 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


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>.
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:

2. 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.



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.
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

(A) 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


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.
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



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.
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 CJA82 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 regulation85, 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


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.
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:

3. 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.

4. 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.




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>.
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


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.
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


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.
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:

      • Ensure that the need for bilingual or French proceedings and services is identified
        at the earliest opportunity and before the first point of contact with the court
        system by increasing coordination with police services, lawyers and other
        partners, who have the first opportunity to communicate French language rights.

      • Provide information related to the right to bilingual or French proceedings and
        services as well as the names of specific lawyers who are able to offer assistance



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.
       in French.

     • Increase awareness of French-speaking litigants and accused through court
       notices, templates, documents, signage and toll-free general inquiry numbers.97

     • Continue to make information documents about French language rights in the
       courts system accessible to the general public. For example, pamphlets, booklets
       and other information should be made available in hard copy at courthouses as
       well as on the MAG website.

     • Revise the manner in which court reception areas post and otherwise provide
       notice of rights to bilingual, or French, proceedings.

     • Inform court users of their language rights at the beginning of every court session.
       If no bilingual judicial officer is present to provide this information, a recorded
       message could be played at the beginning of every court session.98

     • Use technology to permit access to bilingual counter staff in non-designated areas
       under the FLSA. For example, a toll-free telephone number and scanning service
       could be provided so that documents filed by self-represented litigants are
       reviewed, even where bilingual counter staff are not available.

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.



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.
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:

5. 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.).

6. 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.

7. 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




100 LawCommission 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 OntarioMAG, 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
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.




   municipal by-law violations.
106 Supra   note 104.
107 Supra   note 6, ss. 1, 14.
108 Aparking 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 InOttawa, 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.
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



111 Supra   note 90.
112 Acomplainant 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 Inmany 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.
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:
(i) staff awareness of French language services obligations; (ii) staff training; (iii) active
offer of French language services; (iv) planning and integration of French language
services; and (v) 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:

    • Develop a consistent way of informing French-speaking clients of their rights to
      services and bilingual proceedings in POA courts through police services and
      lawyers’ associations.116

    • Provide seamless out–of-court services in French to pay POA infraction notices,
      unless it is a Part II parking infraction (i.e., online, in person, by telephone and by
      email).117

    • Ensure that bilingual justices of the peace are available to receive guilty pleas with
      explanations by designating bilingual days and indicating their availability (along
      with any other pertinent information) on the reverse of infraction notices.



114 LawCommission 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 Forexample, 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 Theprovincial 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.
      Alternatively, establish procedures and mechanisms to enter bilingual pleas using
      technology.

   • Provide municipal and provincial court staff and police officers with calendars
     indicating the pre-determined dates for bilingual first appearance proceedings in
     POA Courts. Video conferencing opportunities may also offer a cost effective way
     to hear bilingual matters and make the best use of limited bilingual resources. Use
     of a toll-free telephone number could also be explored.118

   • Encourage municipal partners to revise the “Notice of Intention to Appear” form to
     ensure that both language versions indicate the right to proceed in French.119

(C) Conclusion and Recommendations

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:

8. 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



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.
      procedures to ensure that French language services are easily accessed, without
      delay or additional cost.

9. 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.

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



120 Supra   note 77.
121 See   the discussion of delay, additional cost, and inferior service in Section 4.3.2.
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 Code123 nor the CJA124 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


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.
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


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 Aprovincially certified evaluator assesses the candidate’s oral proficiency during the
   interview process and provides an opinion on the candidate’s written proficiency.
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


130 Forexample, 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.
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-



131 Part   of the problem is that reliable statistics are not available, supra note 45.
132 In2008 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 Forexample, 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,
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




   particularly in relation to Highway Traffic Act violations.
135 Supra   note 94, at Chapter 10.
   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



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.
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:

10. 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:

11. 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


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.
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



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.
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:

12. 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.


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.
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.



141For 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.
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



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 Currently11 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.
        training initiatives include: Pour l’amour du français, French Lunch Hour
145 These
   Forum, Long Distance Training, “French language services and You” Video, The
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




   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
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.

(C) 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:

13.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


   ‘salles d’audience’. See Gérard Lévesque, « Pour mettre les accents là où il le faut… »
   L’Express (11 October, 2011).
      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:

14. 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 Conduct149 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


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



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


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



155 Sincethe 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 Advicetelephone lines are available in Eastern Ontario, Northern Ontario and parts of
   Central Ontario, the Greater Toronto Area, and the South-west region.
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 Act159 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



159 R.S.O.   1990, c. L.8.
160 Ibid,   s. 4.2(2).
161 Forexample, 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.
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:

15.     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.

16.     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.

17.     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:

(i) increased coordination and clearly defined responsibilities;

(ii) improved communication; and

(iii) 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:

2.     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:

3.     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.

4.     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.

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

5.     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.).

6.     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.

7.     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:

8. 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.

9. 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:
10.     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:

11.     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:

12.     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:

13.     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:

14.     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:

15.     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.

16.     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.

17.     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 BILINGUAL JUDGES BY REGION

Region                        Court of Appeal           Superior Court of Justice

                     Bilingual             Total        Bilingual         Total

Office of the
                       N/A                      -         N/A               -
Chief Justice

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           50162            304163




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.
            PROVINCIAL JURISDICTION – Ontario Court of Justice

         NUMBER OF BILINGUAL JUDGES AND JUSTICES OF THE PEACE

Region                       Judges                 Justices of the Peace

                 Bilingual            Total       Bilingual         Total

                    35               325             36              398
                30 full-time     284 full-time   32 full-time    345 full-time
Total
                    and              and             and             and
                5 per diem       41 per diem     4 per diem      53 per diem

								
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