Toward a “Franco-Sensitive” Way of Administering the Provincial Offences Act

The beginning of a new year always invigorates me. In fact, the fresh start inspires me so much that I had difficulty containing my enthusiasm when the French Language Services Bench and Bar Advisory Committee released its report entitled Access to Justice in French and especially when the Attorney General made a commitment to ensure that its promising recommendations of a renewal of access to justice in French are implemented.

The report is such a watershed for the Francophone community that I decided to review each of its recommendations in my blog, a series that continues in this posting on the Provincial Offences Act (POA).

Why did the Advisory Committee focus on this act in particular? In the Committee’s own words, “[p]rocedures under the POA do not allow for seamless and easily accessible French language services”.

This is the issue in broad terms: the POA sets out the procedures for offences subject to summary conviction, such as parking infractions. Between 1998 and 2002, responsibility for administering the POA was transferred to municipalities, and if a municipality does not have a French-language services by-law, its enforcement officers may fill the Ministry of the Attorney General’s bilingual forms in English only to initiate a summary charge process. In many cases, Francophone citizens must first challenge a provincial offence charge before they can be heard in French, because when they do so, their case falls under the Courts of Justice Act, which stipulates the right to a bilingual hearing.

Complaints about the lack of French in the POA procedures are not rare at the Commissioner’s Office. For example, only last November, a Francophone citizen of Toronto told us the following story: A Toronto police officer served him with a notice, filled in English only, requiring him to appear in court on a particular date. The citizen in question wanted to be heard in French. However, there was nothing about that possibility on the Ministry’s form he received.

From contacts at the Attorney General’s office, we learned that the citizen had been charged under part III of the POA, which obliged him to appear before a judge at the time and place indicated (in English only) on the form. On appearing, the citizen would be asked to respond to the charge (quite probably in English, unless he was lucky enough to draw a bilingual judge), and if – and only if – he decided to contest the charge against him (in English only, of course), he would be offered the opportunity to exercise his right to speak French at the next hearing.

This type of complaint is problematic for the Commissioner’s Office for countless reasons, in particular the fact that clarifications – which are awfully complex, by the way – can come only from the Ministry of the Attorney General, since the POA covers numerous offences, each of which is different. Despite the explanation provided by the Ministry, the complainant’s case can seldom be resolved, since the beginning of the process falls under municipal jurisdiction (not provincial). The Commissioner’s staff spend hours on this type of case, particularly on explaining the POA’s convoluted process to complainants.

In short, the POA process can be unfair to French-speaking Ontarians seeking justice, because as things stand now, it sometimes requires them to be fluent in English (and I mean “fluent”, since the offence notices often contain legal jargon that is incomprehensible in one’s second language!).

For me, this issue is so important that it has its own section in each of my last four annual reports: section 4.2.1 of the 2008-2009 Annual Report (which led to the Access to Justice in French report), section 4.2.1 of the 2009-2010 Annual Report, section 2.2.3 of the 2010-2011 Annual Report and section 3.3.4 of the 2011-2012 Annual Report.

The perseverance of citizens complaining to the Commissioner’s Office finally seems to be bearing fruit, since in its report, the Advisory Committee makes significant recommendations about the administration of the POA, including the following:

• develop proactive procedures to ensure that French speakers are informed at the earliest possible opportunity of their right to services in French, particularly with the support of representatives of municipalities and municipal police services;
• develop procedures to ensure easy, rapid access to French-language services;
• establish out-of-court services (i.e., prior to any appearance in court) in French for the payment of parking infraction notices;
• facilitate access to bilingual justices of the peace, e.g., by telephone or videoconference.

I am delighted with the Advisory Committee’s keen analysis of the question in section 4.3.3 of the Access to Justice in French report and in particular with the positive impact that I am already sensing for Francophone litigants in Ontario. A nice thought to start off the year, don’t you think?

I will return soon with yet another posting on another important conclusion of the French Language Services Bench and Bar Advisory Committee’s report on Access to Justice in French.