Happy Holidays and a Wonderful New Year 2013!

Allow me to wish you Happy Holidays and a marvellous New Year 2013, filled with health, happiness and love!

My blog will be on hiatus for the holidays but will return in January 2013.

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.

Merger of a Designated Agency with a Non-Designated Agency

As part of my series of blogs about the designation of agencies, I am today emphasizing the question of merger of a designated agency with a non-designated agency.

As I mention in my 2011-2012 Annual Report, when a designated agency merges with a non-designated agency, the services and programs that were the object of the designation must not undergo any change in terms of the delivery of French-language services.

The supervising ministry must submit an application to the Office of Francophone Affairs to amend the regulation in order to better reflect the name of the new, merged agency and to update the directory of services provided, as applicable. Therefore, in my view, no merger between a designated agency and a non-designated institution should be considered if the new facility created by that merger does not maintain all of the services and programs that were originally designated.

In the case of Cornwall Community Hospital, which was created out of the merger of two health care facilities, including Hotel Dieu Hospital, that is precisely what happened. And given the fact that Hotel Dieu Hospital was designated under the French Language Services Act, the new medical facility was then obliged to also apply for designation under the Act. Having acted any differently would have been disastrous for the Francophone community and, more importantly, illegal under the Act and unconstitutional according to the unwritten principles of the Canadian Constitution, as was illustrated in the Montfort court case.

After the Holidays, I am convinced you will appreciate to read comments the Commissioner’s Office received from different agencies that chose to ask for designation and were then given status. Beyond benefits and criteria, it is interesting to hear what the Francophone community has to say.

Let’s Be Clear; Let’s Be Fair

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!

Addressing Complaints Relating to Designated Agencies

As part of my series of blog posts about designated agencies, I am today emphasising how complaints should be addressed.

As I explain in my 2011-2012 Annual Report, designated agencies are required to provide high-quality French-language services just like ministries and government agencies, and they are required to have policies and procedures to address complaints about the delivery of these services.

For example, designated agencies in the health sector are, under the terms of their Service Accountability Agreements with the Local Health Integration Networks (LHINs), required to submit a French-language services report to the LHINs, in order to assess the progress being made in the implementation of French-language services and to identify any possible gaps. However, this report should also ideally be shared with the new French-language health planning entities and made available to the public.

I support this approach that holds designated agencies accountable, and recommend that citizens make their complaints directly to those agencies. However, complaints can also be presented to the Commissioner’s Office, which may require the institution named in the complaint to answer questions of a more systemic nature. In fact, once it has been designated, the agency falls under the authority of the Commissioner, who may conduct an investigation in the event of a failure to comply with the requirements of the French Language Services Act (FLSA) regarding the availability and accessibility of French-language services.

But with the current process, these service providers are not subject to any monitoring or ongoing government assessment. Of course, some of the agencies have been designated a long time ago. Let’s take the example of a government agency that would have been designated 20 years ago. Is its current staff even aware that beyond the Office of the French Language Services Commissioner, its clients can file complaints directly to this designated agency should they want to in case of any perceived failure to comply with the FLSA? Are they still in a position to receive and manage these complaints? Some are and some aren’t.

This is precisely why I recommended the Minister Responsible for Francophone Affairs to ensure that designated agencies equip themselves with a mechanism for resolving disputes that is made available to the users of services.

Next week, I will go over the merger of a designated agency with a non-designated agency in detail. What happens when such an operation goes through and what are the obligations under the French Language Services Act? Do not miss this blog post!

Good Language Rights Education for the Judiciary Means Better Access to Justice in French

As I indicated previously, the question of access to justice in French is so important to Ontario’s Francophone and Francophile citizens that I consider it essential for everyone to understand the significance and scope of the French Language Services Bench and Bar Advisory Committee’s report entitled Access to Justice in French. I therefore made a commitment to examine this important report’s recommendations one by one in a weekly blog posting.

The French Language Services Bench and Bar Advisory Committee had two mandates, the first of which was to improve the judiciary’s knowledge of language rights in the justice system (I will return to the second mandate in a future posting). The members of the judiciary (people responsible for dispensing justice – judges and justices of the peace, for example) play a critical role in a party’s ability to exercise the right to justice in French.

The Commissioner is in a good position to know, because he sometimes receives complaints from citizens who allege that their French-language court proceeding has been blocked by judicial decisions that occasionally seem to be based on – and I’m treading carefully here – misinformation about language rights.

Such complaints are extremely difficult to resolve, since the Commissioner’s Office, as part of the public service, operates in the executive branch, while the judiciary operates in the judicial branch. These two branches are – and must remain – independent to ensure that justice is delivered free of any interference or unwarranted intervention.

In other words, when a member of judiciary makes a decision regarding a case that is before him or her, including a decision on the language in which the proceeding will be heard, a review of that decision must follow judicial procedure (such as an appeal), and the Commissioner’s Office has little say in that area, despite the good will of justice system stakeholders. Justice must take its course!

Although it had never occurred to me, in my capacity as Commissioner, to question the wisdom of those who have the difficult and noble task of dispensing justice in Ontario, the fact is that no one is infallible. The Advisory Committee recognizes this when it says that at present, the judiciary may not be adequately informed of French language rights, and that for Ontario to be able to provide high-quality services in French, it is essential for all judges and justices of the peace, in every part of the province, whether they are bilingual or not, to fully understand those rights.

Consequently, the Advisory Committee makes three recommendations: (a) language rights must be an integral part of the training of members of the judiciary; (b) resources concerning language rights must be made available to members of the judiciary; and (c) newly appointed members of the judiciary should guided by experienced bilingual mentors.

I cannot endorse these recommendations strongly enough, since, as the Committee so clearly puts it, if members of the judiciary do not fully understand language rights, “there is little hope that the justice system will achieve equal access to justice in French.”

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.

I’m planning another posting next week on another conclusion of the French Language Services Bench and Bar Advisory Committee’s key report on Access to Justice in French.