Language Skills and the Allocation of Bilingual Judicial Officers in Ontario

Report on Access to Justice in French

Today I have another in my series of postings summarizing the main conclusions of the French Language Services Bench and Bar Advisory Committee’s important report on Access to Justice in French.

This time I want to focus on the Advisory Committee’s conclusion that “[t]he 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”.

At the risk of shocking some people, I have to say that I was pleased to hear this conclusion. Why? Because it confirms that there is a fundamental problem in an area where it is difficult for me, in my capacity as French Language Services Commissioner, to have a direct influence.

Because of its independence, the judiciary is its own watchdog, and a problem can be rectified only if the judiciary itself recognizes that the problem exists. In its report (specifically section 4.3.4), the Advisory Committee presents a lucid analysis of the issue, which is certain to cause a stir.

In fact, the Committee’s analysis begins with the ABCs, i.e., the definition of what a bilingual judge or justice of the peace is: a judicial officer who is able to hear all cases in French? Or an officer who can hear some cases in French? Or even an officer who can rule on a case only in writing?

I was happy to see my position endorsed: “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.”

The Advisory Committee goes on to emphasize that the number and placement of bilingual judicial officers should be based on the requirement to ensure equal access to justice rather than, for example, on statistics associated with the size of the population or the current demand for French-language services. Such statistics would inevitably be biased, since French-speakers often do not exercise their French-language rights because of the difficulties they face in doing so.

I believe that the Advisory Committee has truly grasped how important it is for Francophone litigants to feel and know that they will be heard and understood in their language by the courts, without additional delays or costs, especially when I read enlightened recommendations that suggest standardizing the evaluation of Ontario judicial officers’ language proficiency at the recruitment stage, assessing the need for bilingual judicial officers on the basis of the goal of promoting access to justice in French, and developing staffing protocols accordingly.

I would be remiss if I ended this posting without mentioning that for many years I have been advocating careful planning of human resources for designated public service positions. The judiciary is a separate entity, of course, but I can’t help thinking that there is an undeniable resonance between the principles set out in section 2.2.1 of my 2008-2009 Annual Report – which contains a recommendation that ultimately led to the Access to Justice in French report – and the words of the French Language Services Bench and Bar Advisory Committee. You be the… judge.

I’ll be back soon with another synopsis of an issue examined in the Access to Justice in French report and the associated conclusions and recommendations.

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