What Price Justice for Francophone Litigants?

This posting is part of my commitment of a few weeks ago to review each of the recommendations in the French Language Services Bench and Bar Advisory Committee’s report entitled Access to Justice in French, a seminal document prepared in response to a recommendation I made in my 2008-2009 Annual Report as a result of complaints from Francophone litigants who felt that their right to be heard in their language had been violated.

After looking at the Advisory Committee’s first two conclusions – one on service criteria and active offer, and the other on the Committee’s first mandate, which was to increase the judiciary’s knowledge regarding language rights – last week I began examining the Committee’s conclusions on its second mandate. As I mentioned, those conclusions confirm the existence of factors that reduce access to justice in French. I endorsed the Committee’s first observation, which was that French-language rights are not clear and coherent and that a strategy should be developed to remedy the situation.

Today I am exploring another of the Committee’s conclusions: that French-speaking litigants are not necessarily informed of their French-language rights early enough. It follows that proceedings in French can be more difficult, more time-consuming and more expensive.

Serious as it is, this conclusion is no surprise, since many complaints received by the Commissioner’s Office concerning access to justice stem from the fact that there is no timely offer of adequate information about French-language services in the province’s courts.

Let’s look at an imaginary court case of a Francophone citizen of Ontario. Though fictitious, it is based on actual situations relating to the categories of difficulties identified by the Committee: the procedural difficulties, additional delays and additional costs associated with obtaining a French or bilingual proceeding.

a) Procedural difficulties

Ms. Franc goes to the Family Court office in her area. Like 60 per cent of the citizens who deal with the Family Court, she represents herself and therefore lacks the support of a lawyer, who, according to the Rules of Professional Conduct of the Law Society of Upper Canada, should inform her of her right to a French-language proceeding. Since Ms. Franc lives in an area that is not designated under the French Language Services Act, the office staff speak only English and, quite unintentionally, fail to inform her of her right to be heard by a judge who speaks French anywhere in Ontario, in accordance with the Courts of Justice Act. The employee automatically hands her the unilingual English forms required to have her case heard by the court. Ms. Franc completes the forms – with difficulty, since she has trouble with legal terminology in her second language – and submits them.

b) Additional delays

Ms. Franc receives a notice, in English only, to attend a pre-trial conference. She appears before the judge on the specified date. In her initial conversation with Ms. Franc, the judge notices that while she can make herself understood in English, she is not fluent in the language. Since detailed, carefully worded answers to her questions are essential for the proper conduct of the proceeding, the judge informs Ms. Franc of her right to be heard in French. Relieved, Ms. Franc agrees to adjourn the pre-trial conference, though she is unaware that she will have to wait much longer than a citizen who has chosen to proceed in English, because the dates on which bilingual court officers come to her area are few and far between. Ms. Franc completes the forms again, this time in French, and waits patiently.

c) Additional costs

Several months later, Ms. Franc is finally invited to another pre-trial conference, before a judge who speaks and understands French. Before the conference, the judge notices that the information supplied by Ms. Franc is incomplete and that a number of essential documents are not in the file. The source of the problem is identified: because Ms. Franc completed and submitted the forms in French in a non-designated area, none of the staff in the clerk’s office was able to assess their contents and completeness. Her case cannot proceed until the required information and documents are provided. The conference is therefore adjourned once again.

These repeated setbacks result in considerable costs not only for the justice system but also for Ms. Franc, who had and will have to use more vacation days and spend more time in court than a citizen who decided to proceed in English.

The above scenario is fictional, but it isn’t far-fetched. The fact is that procedural detours, postponements and additional expenses are the dismal hallmarks of bilingual or French proceedings in Ontario’s courts.

Yet I am confident that things will change, thanks to the French Language Services Bench and Bar Advisory Committee’s wise and important recommendations, which support reviewing forms and procedures to ensure that justice system clients are informed of their language rights at the earliest opportunity; increasing awareness of the right to bilingual proceedings through notices, documents and signage; and making information about French-language services readily available in non-designated areas, for example, through a toll-free telephone line.

I keep repeating it: it is imperative that Francophones have effective, meaningful access to justice in French in Ontario. You can count on me to continue monitoring this issue closely in conjunction with the Ministry of the Attorney General.

Stay tuned for another analysis of the interesting conclusions of the report on Access to Justice in French.