News: Justice and Public Security

TesDroits.ca – a portal designed especially for young people

Last September, I met with the interns at the Legislative Assembly of Ontario to talk to them about my role as Commissioner. The interns expressed interest and were quite curious, and asked me a lot of questions. I love it when that happens! In fact, I will be doing the same thing again a few weeks from now, this time with the interns at the National Assembly of Quebec.

I believe it is very important for young people to know their rights—rights in relation to services in French, certainly, but also in other areas. It is always useful to know how to go about defending yourself when you believe you have been a victim of wrongdoing, from a legal standpoint, regardless of age.

I am therefore delighted to see the new legal information portal for kids in Ontario, TesDroits.ca, The goal is to have a single location where legal resources in French that are easy for teenagers to understand are compiled. Having browsed the site, I can say: “Mission accomplished!” TesDroits.ca clearly explains young people’s rights and responsibilities in the justice system. Some of the topics it addresses are school attendance, bullying, drugs and alcohol, consent to sexual activity, housing, and employment. There is even a segment on family law.

One section is dedicated to careers in the justice system. We sometimes forget that our judicial system requires an army of people if it is to function effectively. There is a very complete page of information about each occupation shown. Young people will see much more than just a job description, and can learn about the challenges the work entails and the skills it requires, for example.

TesDroits.ca contains resources from three key partners (Cliquezjustice.ca, Justice for Children and Youth and the Centre francophone de Toronto), and has received financial support from Legal Aid Ontario. Congratulations to all of the parties involved in creating the site; it is well worth a visit!

Access to justice in French: A promising future

This blog post completes the analysis of the report entitled Enhancing Access to Justice in French: A Response to the Access to Justice in French Report (the “2015 Report”) that I started a few months ago. In conclusion, this report reaffirms the existing rights mentioned in the Access to Justice in French report (the “2012 Report”) and lists methods that might be used to enhance those rights within available resources.

The 2015 Report indicates that new procedures and policies have been put in place since 2012 and that those efforts have resulted in documented improvements in the entire system. I consider these results to be very positive.

The many improvements mentioned in my blog posts are the result of efforts made after the 2012 Report was published. All these developments have helped increase awareness of Francophones’ language rights, of the services available in the justice system, and of the services that have been improved in general in the justice system.

Despite all these improvements, the 2015 Report recommends that a number of other measures be taken to build on the progress made to date. One of the key elements is the creation of a long-term mechanism (a French-language services oversight committee) to monitor and measure ongoing progress on French-language services and ensure the implementation of the recommendations from the 2015 Report, the Pilot Project (which I have not discussed in my blog posts on the 2015 Report, but which was the subject of several previous posts) and the French Language Services Regional Committees.

As a professional and a member of the community working to promote French-language services, I’m as optimistic as the report is concerning the progress made in delivering services in the justice system. But I also agree with the recommendations in the report that indicate we have to do more. The 2015 Report provides constructive guidelines for improving those services, and my office will do whatever it can to help implement all of the report’s recommendations.

Our ultimate goal is to eliminate the obstacles that prevent people from accessing the justice system in French. In view of the progress made, the efforts put forth so far, and the initiatives recommended in the 2015 Report, the next report may very well conclude that access to justice in French in Ontario is not more costly, more difficult or more time-consuming than access to justice in English.

Coordination of French language services in the justice system

A number of public and private justice system partners have combined and coordinated their efforts to improve the delivery of French language services in Ontario since the publication of the report entitled Access to Justice in French (the “2012 Report”). That report emphasized the importance of having effective coordination between all justice system partners from the outset of every proceeding.

The report entitled Enhancing Access to Justice in French: A Response to the Access to Justice in French Report (the “2015 Report”) illustrates the progress made in this area since the 2012 Report. The most remarkable accomplishment is the formation of the French Language Services Regional Committees. These regional representatives from the judiciary and various branches of the Ministry of the Attorney General serve as resource persons responsible for French language service issues affecting the judiciary. Their mandate is to identify and implement best practices in the delivery of French-language services. These regional committees will, we hope, be a valuable tool as soon as they are up and running. As a result of the Dorcin case, my office is attempting to determine how we can join forces with the regional committees to achieve the best possible outcomes.

The other distinct improvement that we have to mention is the e-filing of Small Claims Court documents (including claims). It is now possible to file electronic documents in both official languages. Accordingly, it is important to encourage the Francophone community to use this service in French, as the report indicates. You can access this service by clicking this link: https://www.ontario.ca/fr/page/depot-electronique-dune-demande-la-cour-des-petites-creances.

The following is a list of other notable initiatives mentioned in the 2015 Report that I have not yet discussed in my blog posts:

  • The “Informing Accused of Language Rights” subgroup, composed of members of the Court Services Division, the Criminal Law Division, the Ontario Provincial Police, the AJEFO and the Ministry of Community Safety and Correctional Services, is now responsible for finding a uniform approach to informing accused persons of their rights at the earliest opportunity.
  • The Ministry of the Attorney General appointed a French language services coordinator in the Court Services Division in September 2012, a month after the release of the first report. Her role is to ensure that the division meets its FLS obligations and to provide FLS tools and support.
  • Legal Aid Ontario established a hotline for accused persons and people looking for family law legal advisers capable of dealing with French-speaking lawyers. Anyone accused of a crime can access this service on a 24/7 basis.
  • The AJEFO launched its Ottawa Legal Information Centre, which provides free legal information and referral services in French.
  • Since the Court Services Division figured prominently in the 2012 Report, it created its own action committee to review and implement the 2012 Report’s recommendations.

The 2015 Report shows that much progress has been made, but acknowledges that there is still a lot of work to be done. Perseverance and determination are the keys to success, and good outcomes reflect unstinting hard work.

Achieving adequate bilingual capacity in the justice sector

The report Access to Justice in French (the “2012 Report”) identified three groups who could provide adequate bilingual capacity within Ontario’s judicial system: the judiciary, lawyers in the private sector, and court staff. Enhancing Access to Justice in French: A Response to the Access to Justice in French Report (the “2015 Report”) provides an overview of progress made in terms of the bilingualism implemented by those three groups since the publication of the 2012 Report.

In the case of the judiciary, the 2012 Report identified the need to establish a system to measure the appointment of bilingual judges and a mechanism for evaluating the bilingual capacity of potential candidates. That recommendation is in line with the recommendations I made, in collaboration with my colleagues, in the study published in 2013: Access to Justice in Both Official Languages: Improving the Bilingual Capacity of the Superior Court Judiciary.

In the case of private sector lawyers, the 2012 Report identified the need to guarantee that there are enough bilingual lawyers to provide adequate representation for francophones in the province.

In the case of court staff, the 2012 Report determined that the challenge identified would have to be met in order to be able to fill the bilingual positions in the courts.

There has been mixed progress in strengthening bilingualism in these three groups since the first report. In the judiciary, there is still a deficit when it comes to adequately evaluating candidates’ language competencies. The process largely depends on a system that expects candidates to self-identify as bilingual, in order to determine their status. That being the case, the number of “bilingual” judges appointed to the Court of Justice of Ontario, the Superior Court of Justice and the Court of Appeal has risen since the 2012 Report was published. The best system for appointing bilingual judges is indisputably the process followed for appointing justices of the peace, in which candidates are evaluated independently and professionally.

In spite of the obvious challenges presented by attempts to bring about change among private sector lawyers, various actors have taken steps to improve access to those lawyers; they include the Association des juristes d’expression française de l’Ontario and the University of Ottawa Faculty of Law. The Law Society of Upper Canada has adopted methods for providing internal services in both official languages. The LSUC has also signed the National Mobility Agreement with the Barreau du Québec, to allow lawyers from Quebec to provide legal services in French in Ontario. This somewhat controversial measure may mean that legal services can be offered in French, at least in areas located near the Quebec border.

In the case of court staff, the 2015 Report notes that the Ministry of the Attorney General and the Ministry of Community Safety and Correctional Services have worked hard to recruit bilingual staff and retain bilingual positions. The 2012 Report said that to promote the hiring of bilingual employees, those ministries now advertise bilingual positions in both official languages in French language media. In addition, the office of the French language services coordinator at the Ministry of the Attorney General, in collaboration with other partners, has created a tool for identifying present and future needs for designated bilingual positions. However, the 2015 Report does not give details about that tool or about how needs are measured. As the 2015 Report states, it is still necessary to examine designated bilingual positions in order to ensure that the employees in those positions have adequate language competencies to enable them to provide services in French based on the active offer concept. What is important to me, as Commissioner, is not so much verifying the individual capacities of each employee as ensuring institutional capacity.

The 2015 Report proposes that the delivery of French language services be centralized in certain specific courts, in order to overcome the challenges associated with retaining and recruiting bilingual employees. That proposal in the 2015 Report is too vague, although it has potential. Naturally, that kind of centralization could cause major problems, including the additional costs of long travel time in order for Francophones to be able to obtain adequate French language services. However, I am hopeful that it will enable a French-speaking individual who appears at the courthouse in Thunder Bay, for example, to be able to interact in French starting when their documents are filed, whether through assistance provided in person or by telephone or some other technology.

We need more bilingual judges who are bilingual by virtue of their fluency in the language rather than their ability to self-identify as bilingual. We need bilingual lawyers throughout Ontario who can represent their clients competently in French, and we need to make the public aware that they are there. And last, we need to ensure that institutional capacity within the Ministry of the Attorney General and its other branches is adequate, in terms of bilingualism, and that it is running smoothly.

Harmonization of legislation

As the New Year gets under way, we are still making noble resolutions, setting new goals and undertaking new projects. And it is with that same motivation that, at the beginning of 2016, I am making good on my commitment to review the report entitled Enhancing Access to Justice in French: A Response to the Access to Justice in French Report (“2015 report”) and present my assessment to the public.

From this perspective, I will today examine the complexity of the language rights legislative and regulatory framework in Ontario, which was the subject of the third conclusion of the 2012 report entitled Access to Justice in French (“2012 report”). The two provincial laws that establish language rights in Ontario’s court system are the French Language Services Act and the Courts of Justice Act. The areas currently designated under the Courts of Justice Act cover a larger geography than the areas designated under the French Language Services Act. As a result, French-language services are, unfortunately, non-existent at service counters when someone is filing a document in an area that is not designated under the French Language Services Act.

The third conclusion of the 2012 report noted the weaknesses and ambiguities in the current legislation that limit access to service in French at all points of contact during the course of a proceeding and continue to result in delays, additional costs and procedural difficulties. It was recommended in the 2012 report that the two provincial laws be harmonized so that their designated areas would be the same.

The 2015 report informs us that the Office of Francophone Affairs (OFA) has taken steps to explore harmonization methods. The report also recommends that the OFA establish a working group responsible for the specific development and implementation of the harmonization process. It is paramount that the OFA implement this recommendation to ensure that this complex but crucial objective is achieved.

Pending this harmonization of the legislation, the 2015 report notes that the Court Services Division has recruited volunteers to provide counter services remotely and by telephone to Francophones who do not live in areas designated under the French Language Services Act. In my view, this initiative does not address the 2012 report’s recommendation encouraging the Attorney General to use technology to enable qualified staff to meet the needs of litigants who live outside the designated areas. Volunteer assistance does not satisfy the “qualified staff” criterion and does not provide equitable service. I believe that the volunteer assistance put in place runs counter to the very concepts of service and active offer. With this Band-Aid fix, the problems will persist until a definitive solution is found.

In my estimation, the solution would be to set up a toll-free line operated by qualified, well-trained staff who would be responsible for providing Francophone litigants with information and answers to their questions. Better still, the real solution would be to designate additional areas, especially the city of Oshawa. It is interesting to note that the 2015 report suggests that the Office of Francophone Affairs already supports the selection of Oshawa as the 27th area designated under the French Language Services Act. We are still awaiting that designation.

Language rights education for the judiciary

Judges have a duty to honour language rights and ensure that they are respected. A lack of awareness of language rights on the part of judges can seriously infringe on a person’s fundamental human rights or even violate a person’s right to access justice in the language of his or her choice. In fact, the lack of awareness of language rights led to the allegations associated with a complaint recently received by my office, namely the Dorcin case. This new complaint submitted by a Francophone woman from Toronto sums up the bad experience she had in Toronto Small Claims Court. The complainant in this case alleges not only that active offer of service in French is virtually, if not completely, non-existent, but also that a deputy judge of the Small Claims Court ignored her language rights. She maintains that the deputy judge denied her the right to a hearing in French because she spoke English.

It was because of this lack of awareness of language rights that the 2012 report noted the need for an education campaign for the judiciary to ensure the delivery of services in French equivalent to those provided in English. In this connection, the 2012 report had three recommendations for the judiciary: (1) language rights should be included in the training provided to the judiciary; (2) resources concerning language rights should be made available to the judiciary; and (3) a mentoring program should be established to ensure that newly appointed judges receive advice from qualified bilingual judges. My analysis of this conclusion and the associated recommendations in the 2012 report can be found here.

The 2015 report states that the three recommendations have been implemented. Various presentations and lectures on language rights have been organized for judges and justices of the peace. All three courts in Ontario have instituted mentoring programs for newly appointed judges. New resources that are readily accessible online, including the AJEFO’s JURISOURCE, are available to all judges and justices of the peace. There is even talk of establishing a forum to promote discussion of language rights among judges.

I congratulate the judiciary on the efforts they are making to improve their knowledge of language rights. However, despite this progress, complaints about access to justice and the lack of awareness of language rights in Ontario’s court system, such as the above-mentioned Dorcin case, are unfortunately not isolated instances. It seems clear that much work remains to be done, especially since deputy judges of the Small Claims Court (most of them lawyers) may have missed the language rights education. Consequently, I strongly support the proposal in the 2015 report to develop ongoing language rights education programs, to be delivered by educators such as the National Judicial Institute. I must add that it is crucial that all judges and justices of the peace, including deputy judges (i.e., Small Claims Court judges, bilingual or otherwise), receive regular, compulsory language rights education. Educating judges will unquestionably lead to substantive equality of access to justice in the two official languages.

Until these measures become a reality, my office will continue to investigate complaints it receives on this subject, including Ms. Dorcin’s. In view of the 2015 report, our new challenge will be to determine how the new French Language Services Regional Committees (discussed in the first blog post) will deal with complaints such as the Dorcin case. According to the 2015 report, these committees are composed of judicial and Ministry representatives who serve as resource persons responsible for French-language service issues and complaints in their region. How does the process of filing a complaint with the committees work? How can we coordinate our efforts? I will, of course, keep you informed of developments.