A Human Story
“English and French are the official languages of the courts in Ontario, and the court has a responsibility to ensure compliance with language rights [whose interpretation must be] consistent with the preservation and development of official language communities in Canada and with the respect and preservation of their cultures.”19
Despite this unambiguous decision by the Ontario Court of Appeal, the Commissioner, as he lamented as far back as his first annual report, regularly receives complaints about French-language services in the justice sector.
Only this year, the staff of the Commissioner’s Office had to assist Francophone citizens who, instead of being granted a bilingual hearing, had been erroneously assigned an interpreter,20 or who were unable to obtain service in French at the court clerk’s office. One particular complainant had to go to extreme lengths, over the objections of the judge, to assert his right to be heard in French.
As distressing as these situations are, complaints are not surprising, unfortunately, in view of the great many interactions that citizens have with the justice system every day (paying fines, going to court, settling estates, etc.), the large number of parties involved (litigants, police, judges, municipalities, lawyers, court clerks and so on) and, above all, the subtleties of the regulations governing access to justice in French in Ontario.
With regard to the latter point, there is a nebulous convergence between French-speaking litigants’ rights under the French Language Services Act and under the Courts of Justice Act in particular. At the risk of oversimplifying, let’s just say that under the French Language Services Act, litigants in Ontario are entitled to the “administration of justice”, i.e., administrative services at courthouse service counters, in French in 25 designated areas in Ontario, and that under the Courts of Justice Act, they are entitled to the “execution of justice”, i.e., court proceedings, in French anywhere in Ontario.
However, this nebulous impression does not seem to be confined to litigants: many complaints received by the Commissioner’s Office stem from the failure of courthouse employees and even judges to understand the language rights of Ontario’s Francophones. That is why, in his 2008-2009 Annual Report, the Commissioner recommended that a committee of legal experts be formed to increase the knowledge of members of the judiciary with respect to language rights and to propose courses of action leading to the appointment of bilingual judges.
Justice may be blind, but the recommendation did not fall on deaf ears. In his 2009-2010 Annual Report, the Commissioner warmly applauded the fact that the Ministry of the Attorney General planned to establish and mandate a Bench and Bar Committee led by two well-known Francophone jurists, one a judge and the other a legal expert.
And in August 2012, the Bench and Bar Advisory Committee on French Language Services published its report on access to justice in French in Ontario.21 Furthermore, to confirm that this key report would not be left to gather dust, a joint news release by the Commissioner’s Office and the Ministry of the Attorney General was issued in November 2012 announcing the establishment of a steering committee with representatives from the justice sector and other organizations to review and develop an implementation plan that responds to the Advisory Committee’s recommendations.
That was excellent news, since the well-documented report not only paints an accurate, lucid picture of the experience of Francophones seeking justice in French in Ontario (e.g., procedures that are more difficult, more time-consuming and more expensive, employees who are not very sensitive to or aware of the right to justice in French) but also offers various solutions, some well-known and some daring, in support of equal access to justice in French (e.g., active offer of service in French, guidance for litigants from the beginning of a proceeding to the end, improved training for judges regarding language rights).
The Commissioner is delighted to be able to count on the Attorney General’s leadership in implementing the action plan outlined in the report, and he is hopeful that the eventual outcome of the new solutions, combined with the increased sense of responsibility mentioned in section 1.3.1 of this report, will be that Francophones will no longer have to “experience barriers to accessing justice in French [that] prevent the legitimate exercise of French language rights in Ontario’s courts.”22
In the meantime, the Commissioner’s Office will of course continue its efforts to rescue litigants trapped by the system, and the Commissioner will make a point of meeting periodically with officials of the Ministry of the Attorney General to get good news from them about progress in implementing the recommendations.
19Belende v. Patel, 2008 ONCA 148, para. 24.