Let’s Be Clear; Let’s Be Fair

Report on Access to Justice in French

As I indicated previously, the question of access to justice in French is so important that I want to review each of the recommendations in the French Language Services Bench and Bar Advisory Committee’s report entitled Access to Justice in French so that citizens will understand its significance and scope.

Last week, I looked at the Advisory Committee’s first mandate, which led to three recommendations in support of improving the judiciary’s knowledge of language rights in the justice system.

In this and subsequent postings, I will examine the recommendations arising from the Advisory Committee’s second mandate, which is to “propose concrete and concerted steps to address the shortage of bilingual judges in Ontario.”

Before starting work on this mandate, the Committee wanted to confirm the truth of the assumption that there is a shortage of bilingual judges in Ontario. However, in the absence of conclusive statistics, the Committee felt it was better to step back and consider the assumption’s corollary, which is well documented: that there is a perception among Francophone citizens that the number of bilingual judges in Ontario is inadequate. What did it find? The perception is due to the fact that there are indeed factors that reduce access to justice in French and result in the situation where French or bilingual proceedings in Ontario often cost more and take longer than proceedings in English.

The Committee studied the various factors that limit access to justice in French, reached seven conclusions and made recommendations for each one with a view to remedying the situation.

Its first conclusion is that 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. Indeed, the complexity of the legislation that grants access to justice in French – the French Language Services Act, the Courts of Justice Act and the Criminal Code – is often problematic for Francophone litigants.

A case in point: A citizen recently contacted the Commissioner’s Office to advise us that he had attempted to invoke a provision of the Bilingual Proceedings regulation associated with the Courts of Justice Act allowing him to pursue in French a proceeding that was initiated in English. However, in the absence of clear aids and employees able to guide him, he had no choice but to dissect the regulation himself and do his best to understand it.

Unfortunately, his efforts were unsuccessful, and he is now facing a very unappealing choice: delay his case by filing a motion to exercise his right to be heard in French, or take the easy way out and renounce his right. Since his children are involved, the complainant could hardly be blamed if he decided to back down, though that is obviously not what the Commissioner’s Office would like.

It would be difficult to find a better justification for one of the Advisory Committee’s key recommendations: that the Ministry of the Attorney General 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.

I repeat: The steps necessary to ensure that French speakers have meaningful and effective access to justice in French in Ontario are of great concern to me, and you can count on me to continue monitoring this issue closely in conjunction with the Ministry of the Attorney General.

Next week, I will examine another conclusion of the critical report Access to Justice in French. Stay tuned!

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