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10/13/2017 Access to justice in French - Ministry of the Attorney General

https://www.attorneygeneral.jus.gov.on.ca/english/about/pubs/bench_bar_advisory_committee/ 1/92

June 25, 2012

The Honourable John Gerretsen

Ministry of the Attorney General

Access to justice in French

Judicial Appointment Committees

Ministry of the Attorney General

Judges/Justices of the Peace

Legal Education

Lawyers

Court Services Division

French Language Services Bench and Bar Advisory Committee to the AttorneyGeneral of Ontario



Attorney General of Ontario McMurtry-Scott Building 11th Floor 720 Bay Street Toronto, ON M5G 2K1

Dear Attorney General,

Over the last 35 years, successive governments have expanded the right to French languageservices in Ontario’s court system. Those rights are broad and comprehensive. Much effortand investment has gone into developing and implementing them, and the courts, Ministry ofAttorney General, and other participants in the justice system, have exhibited goodwill and acommitment of resources in this regard. The Ministry of Attorney General’s Strategic Plan forthe Development of the French Language Services in Ontario’s Justice Sector, is particularlynoteworthy.

This report sets out a road map to make the improvements necessary to allow the justicesystem to function as it is intended, and as it needs to function, if there is to be effective andmeaningful access to justice in French in Ontario. The French Language ServicesCommissioner recently reported that there continue to be obstacles that make access tojustice particularly difficult for French speakers in Ontario. Many key participants in the justicesystem, including judicial officials, court staff, and lawyers, are unaware of these obstacles. Asa result, the justice system is not as responsive as it could be in addressing the rights andneeds of Ontario’s French-speaking community and in ensuring meaningful access to justicein French.

Solutions lie with the Ministry of the Attorney General and other relevant partners, participants,and stakeholders, including the Government of Canada, the judiciary, and the legalprofession. The creation of the French Language Services Bench and Bar AdvisoryCommittee to the Attorney General represents a unique collaborative opportunity for keyparticipants and partners in the administration of justice to address access to justice forFrench speakers in Ontario.

The committee is conscious of the fact that this report is being delivered at a time when theprovince is facing significant economic challenges. The recommendations made do notrequire costly investment or broad new initiatives. Rather, they are focused on thecoordination of existing resources and improving communication between the variousparticipants in the justice system. In many cases, the recommendations support initiatives thatare already underway.

This report is about doing things better and in several respects it will save money, time, andfrustration. The report also offers opportunities for new ways of thinking and for improvedplanning by those involved in the various parts of our justice system. By implementing theserecommendations, the Attorney General will bring about tangible and positive change to thedelivery of French language services in the justice system. These changes will enhance



Justice Paul Rouleau Paul Le Vay

access to justice for the French-speaking population, improve the public’s perception of howjustice is delivered, and increase the confidence of French speakers in the justice system. Theinitiatives proposed also contribute more broadly to advancing the interests of the Frenchlanguage minority community in Ontario by enhancing the protection provided by statutorylanguage rights.

Respectfully,

Co-chairs of the French Language Services Bench and Bar Advisory Committee



Table of Contents

French Language Services Bench and Bar Advisory Committee

List of acronyms and abreviations

Executive summary

Part 1: Introduction

1.1 Committee background

1.2 Structure of the report

Part 2: French language rights and access to justice in Ontario

2.1 French language rights

Criminal Code

Courts of Justice Act

French Language Services Act

2.2 Access to justice

2.3 Objectives for ensuring access to justice in French for French speakers

Service Objective

Active Offer Objective

Part 3: Committee mandates

3.1 Methodology

Part 4: Findings and recommendations

4.1 Summary of the Committee's findings

4.2 First mandate – Increasing the knowledge of the judiciary with respect tolanguage rights in the justice system

4.2.1 At present the judiciary may not be adequately informed of Frenchlanguage rights

4.3 Second mandate – Addressing the shortage of bilingual members of the judiciaryin Ontario

4.3.1 Laws governing French language rights do not ensure that all points ofcontact along the chain of a proceeding are in French



4.3.2 Proceeding in French can be difficult, time-consuming and expensive

4.3.3 Procedures under the POA do not allow for seamless and easilyaccessible French language services.

4.3.4 The linguistic abilities, number, and placement of bilingual judges andjustices of the peace is not necessarily determined in accordance with theneed to ensure equal access to justice for French speakers

4.3.5 There is a need for greater coordination of bilingual court staffandenhanced awareness by all court staff of French language rights

4.3.6 There is a need for greater coordination within MAG, and between thejudiciary and MAG, regarding the delivery of French or bilingual proceedingson a regional and provincial basis

4.3.7 There is inadequate coordination of the delivery of French or bilingualproceedings with the legal profession

Part 5: Conclusion

Part 6: Summary of recommendations

Appendix: Bilingual judicial statistics



French Language Services Bench and BarAdvisory Committee

Co-Chairs

Paul Rouleau - Judge, Court of Appeal for Ontario

Paul LeVay - Vice-President, Association des juristes d’expression française de l’Ontario

Members

Julie Thorburn[1] - Judge, Superior Court of Justice

Paul Bélanger - Judge, Ontario Court of Justice[2]

Sheila Bristo - Director, Court Services Division[3], Divisional Support Branch

Josée Bouchard - Equity Advisor, Law Society of Upper Canada

Josée Boulianne - Manager, Court Services Division, Court Operations, E. Region

Jeremy Griggs - Senior Manager, Court Services Division, Provincial Offences Act andOperational Support Units

Hanny Hassan - Chair, Ontario Judicial Appointments Advisory Committee

Brian Lennox - Executive Director, National Judicial Institute

Danielle Manton - Executive Director, Association des juristes d’expression française del’Ontario

Sonia Ouellet - Former Executive Director, Association des juristes d’expressionfrançaise de l’Ontario

Angela Renaud - Justice of the Peace, Ontario Court of Justice

Seth Rudin - Chair, Justices of the Peace Advisory Appointments Committee

Resource Support

Elizabeth Bucci - Crown counsel, Ministry of Attorney General



Sabine Derbier - French Language Services Coordinator, Ministry of the AttorneyGeneral

Danielle Mulaire - Law Clerk, Court of Appeal for Ontario

Etienne Saint-Aubin - Legal Director, Cornwall Legal Clinic

Shirley Smiley - Law Clerk, Court of Appeal for Ontario



List of acronyms and abreviations

AFMO: Association française des municipalités de l’Ontario

AJEFO: Association des juristes d’expression française de l’Ontario

CIMS: Case Information Management System

CJA: Courts of Justice Act

Committee: French Language Services Bench and Bar Advisory Committee to theAttorney General

CSD: Court Services Division (Ministry of the Attorney General)

FLIPD: French Language Institute for Professional Development

FLS Commissioner: French Language Services Commissioner

FLSA: French Language Services Act

Law Society: Law Society of Upper Canada

MAG: Ministry of the Attorney General

OCFLS: Office of the Coordinator of French Language Services

POA: Provincial Offences Act

POA Court(s): Provincial Offences Act Court(s) (Municipal Court(s))



Executive Summary

Overview and Mandate

Access to justice in French is a right Ontarians have enjoyed for over 30 years. It has been

described as a quasi-constitutional right and it is articulated in s. 530 of the Criminal Code[6].

Despite the longstanding and well-entrenched nature of these rights, in 2009, the FLSCommissioner, François Boileau, reported receiving a number of complaints related to thedifficulty of accessing justice in French. In response, the Attorney General formed thisCommittee to address two mandates:

1. recommend ways to actively increase the knowledge of all members of the judiciary inOntario regarding French language rights in the justice system; and

2. propose concrete and concerted steps to address the shortage of bilingual judges inOntario.

The Committee’s Approach

In this report, the Committee seeks to identify what needs to be done to improve access tojustice for French speakers in Ontario. This requires, first, that the necessary resources becoordinated to permit the justice system to provide services in the French language equal inquality to the services provided in English. Second, those services must be actively offered toa public that is properly informed of its right to access the justice system in French.

The Committee’s task was made more difficult by the absence of reliable statistics respectingthe provision of French language services in Ontario’s justice system. Accordingly, theCommittee relied primarily on an extensive review and consultation with key stakeholders, aswell as the content of individual complaints made to the FLS Commissioner. A detaileddiscussion of the Committee’s methodology is presented in section 3.1.

The Committee’s Findings and Recommendations

The Committee’s findings and recommendations should be prefaced by acknowledging thesustained efforts at all levels of court, and within MAG, to actively offer French languageservices in Ontario. While these efforts are not the focus of this report, the Committee’sfindings and recommendations should not be viewed as reflecting a lack of commitment, or



effort, on the part of the courts, or MAG. Although the Committee has identified significantissues in the provision of French language services, in many respects, the recommendationsmade in this report support important initiatives already undertaken, such as MAG’s Strategic

Plan for the Development of the French Language Services in Ontario’s Justice Sector.[7]

The Committee’s conclusion that accessing justice in French in Ontario can be more difficult,time consuming and expensive than accessing justice in English is central to the report. Thereis also concern regarding the quality of French language services.

With respect to its first mandate, the Committee found that, the judiciary may not beadequately informed of French language rights. All members of the judiciary should bemade aware of their obligation to inform litigants of their language rights and should knowwhat those rights entail. This can be accomplished through education and the provision ofwritten material.

With respect to its second mandate, the Committee found, first, that French language rightsdo not ensure that all points of contact during the course of a proceeding are inFrench. All persons who are parties to court proceedings should be made aware of their rightto services in French at the earliest opportunity. All points of contact along the chain of ajudicial proceeding (including those with court staff, clerical staff, trial coordinators, lawyers,and judges or justices of the peace) should be examined to ensure that French languageservices are delivered consistently, and at an acceptable level.

Second, proceeding in French can be difficult, time-consuming and expensive.Legislative gaps in the provision of French language services should be closed, particularlythose that occur at the point of first contact between the litigant and the legal system. Thismay include adopting policies that expand the provision of French language services beyondwhat is statutorily required (for example, by providing consistent access to bail hearings inFrench). This will alleviate delays and consequent additional costs.

Third, the procedures under the POA[8] do not allow for seamless and easily accessibleservice in French. MAG must continue to work together with municipal partners (i.e.,municipalities that administer the POA Court system), police services, the legal profession,court users, and the judiciary to implement procedures that ensure access to French languageservices in POA proceedings.

Fourth, the linguistic abilities, number, and placement of bilingual judges and justicesof the peace are not necessarily determined in accordance with the need to ensureaccess to justice for French speakers. For each region, and at every level of court inOntario, bilingual judges and justices of the peace must be available to hear proceedings andrender decisions in a timely manner in French. The linguistic abilities of a judge or justice orthe peace who presides in a bilingual or French proceeding should be equivalent to theabilities of a judge or justice of the peace who presides over cases in English. Objectiveevaluation of bilingual candidates would allow for a clear metric of linguistic ability.



Fifth, there is a need for a greater coordination of bilingual court staff and enhancedawareness of French language rights. MAG should develop procedures to ensure thetimely and seamless provision of services in French and ensure that an appropriatecomplement of bilingual staff is available going forward.

Sixth, there is a need to improve coordination within MAG, and between the judiciaryand MAG, regarding the delivery of bilingual or French proceedings on a regional andprovincial basis. This coordination effort requires clearly-defined responsibilities. MAGshould designate a divisional French language services coordinator within the CSD for theprovince, and consider designating a person in each region to coordinate French languageservices. The Chief Justices may wish to consider designating a judge in each region and ateach level of court, and a justice of the peace in each region at the Ontario Court of Justice, tobe responsible for French language or bilingual proceedings and to liaise with the CSDcoordinator. The CSD should develop clear and measureable targets for French languageservices.

Seventh, there is inadequate coordination of the delivery of bilingual and Frenchproceedings with the legal profession. Since the legal profession is self-regulating thisissue requires cooperation from the Law Society, law schools, lawyers’ associations, andMAG. Together, efforts should be made to educate and assess lawyers’ knowledge oflanguage rights, increase the number of lawyers able to provide French language services,and improve the accessibility of these services to French speakers.



Part 1: Introduction

For almost thirty years, French and English have been the official languages of the courts inOntario. Litigants before the courts who speak French are entitled to have their cases heardand decided by a judge, or justice of the peace, who understands them in that language.Statutory rights granting access to justice in both official languages are tangible

manifestations of bilingualism and are fundamental to the fabric of our nation.[9] However,these rights are only as strong and meaningful as the methods in place to ensure that theycan be exercised.

This report focuses on the steps necessary to ensure that French speakers have meaningfuland effective access to justice in French in Ontario while making the most efficient use ofexisting resources. The Committee’s recommendations are targeted at bringing about needed

improvements to access to justice in French.[10]

In large part, the recommended changes can be implemented at little or no additional cost tothe province. They simply require more effective use of existing resources and strongeraccountability mechanisms to ensure compliance with French language rights. Implementationof the Committee’s recommendations should result in fewer court appearances for thoseexercising French language rights, which will decrease costs and delay. In the criminal

sphere, these recommendations will contribute to achieving the goals of Justice on Target.[11]

1.1 Committee Background

In his second annual report, published in October 2009, the FLS Commissioner reportedreceiving a number of complaints related to access to justice for French speakers in Ontario.[12] As was noted in the annual report of the Office of the Commissioner of Official Languages,published in 2001, “une plainte isolée représente parfois la pointe de l’iceberg”, an isolated

complaint is sometimes the tip of the iceberg.[13] People generally are not inclined tocomplain, so for each complaint received there are likely many other people who haveencountered difficulties. However, complaints in the context of language rights can be both anexpression of exasperation, and a sign of hope that individual protests will help to advance thenotion of equality of French and English in government institutions.

Some of the complaints received by the FLS Commissioner related to a lack of bilingualjudges, or justices of the peace, as well as inadequate knowledge of linguistic rights on the

part of the judiciary.[14] Other complaints involved shortcomings related to the delivery of



services in bilingual or French proceedings, including a lack of coordination between the

judiciary and courts’ administration.[15] In response, the FLS Commissioner recommendedforming a committee of stakeholders in the justice system to:

1. 1) recommend ways to actively increase the knowledge of all members of the judiciary inOntario regarding language rights in the justice system; and

2. 2) propose concrete and concerted steps to address the shortage of bilingual judges in

Ontario.[16]

In early 2010, the Honourable Christopher Bentley, then Attorney General, formed theCommittee to address these two issues. The Committee is co-chaired by Justice PaulRouleau of the Court of Appeal for Ontario and Paul Le Vay, a lawyer and Vice-President ofthe AJEFO. There are Committee representatives from all levels of the judiciary in Ontario, theJudicial Appointment Advisory Committees for the Ontario Court of Justice and Justices of thePeace, the bar, the Law Society, and MAG.

The Committee concluded that there is a need for: (i) improved coordination of Frenchlanguage services; (ii) better communication of French language rights; and (iii) clearly-defined responsibilities in the provision of French language services. The recommendationsset out in Part 4 of this report reflect these conclusions.

1.2 Structure of the Report

The report is divided into six parts. In Part 2, we describe statutory French language rights inOntario in a contextual manner and then discuss the broader issue of access to justice. Weuse two examples to demonstrate the critical nature of access to justice concerns experiencedby French speakers. Finally, we set out two objectives – “service” and “active offer” – whichguide access to justice initiatives in the context of minority language rights.

In Part 3, we return to the Committee’s two specific mandates[17] and explain the methodologyused in the analysis that follows.

In Part 4, we present findings and recommendations in response to each of the Committee’smandates. First, we consider how to actively increase the knowledge of all members of thejudiciary in Ontario with respect to language rights in the justice system. Second, we proposeconcrete steps to address the concern that there is a shortage of bilingual judges and justices

of the peace in Ontario.[18]

Finally, in Parts 5 and 6, we conclude and provide a consolidated summary of ourrecommendations.



Part 2: French language rights and accessto justice in Ontario

2.1 French language rights

French and English are Canada’s two official languages and the official languages of Ontario’s

courts. Official language rights are fundamental “to the continued viability of the nation.”[19]

The vitality of a language and the identity and culture of the people speaking it go hand inhand. Language is “the means by which individuals understand themselves and the world

around them.”[20]

In Ontario, French is the minority official language. The purpose of minority language rights isto preserve and promote the official language minority and its culture by creating conditions

that allow the linguistic minority community to flourish.[21] To achieve this purpose, Frenchlanguage rights must be interpreted generously and purposively, “in a manner consistent with

the preservation and development of official language communities.”[22] In particular,language rights must be interpreted with a view to preserving cultural inheritance and

ensuring cultural security.[23] Interpreted in this way, minority language rights have the powerto promote the linguistic minority’s participation in public life.

Although the rights granted by these three statutes are intended to provide access to justicethat is as effective in either official language, the gradual process by which they were created,and then expanded – “étapisme” as it’s called in French – has created inconsistencies andgaps in the legislative scheme. Statutory French language rights are also limited in certain

areas of the province.[24] This makes it difficult to coordinate, plan, manage, and deliverFrench language services.

What follows is a brief overview of statutory French language rights in Ontario’s justicesystem.

Criminal Code

The Criminal Code outlines the language rights of the French-speaking accused andspecifically confers a substantive right for the accused to be tried in his or her official

language, provided that he or she makes the application within the prescribed time.[25] Morespecifically, s. 530 sets out the procedure whereby an accused can elect to be tried before a



court in which the justice of the peace, judge, or judge and jury, speak the official language of

the accused, or both official languages.[26]

Courts of Justice Act

Section 125(1) of the CJA provides that French and English are the official languages of thecourts of Ontario. However, English is the usual language of the courts, with French being theexception. Except as specifically provided, hearings in courts are to be conducted in Englishand documents are to be filed in English or accompanied by a certified translation of the

document into English.[27]

Section 126(1) does not provide a party with a substantive right to a proceeding in French.[28]

Rather, it gives a French-speaking party to a court proceeding the right to “require that it be

conducted as a bilingual proceeding.”[29]

Section 126(2) sets out the substantive rights applicable to a bilingual proceeding. Althoughthis subsection provides that a bilingual proceeding will be heard by a judge or officer whospeaks both French and English, a hearing held before a bilingual jury is only available inareas named under Schedule 1 of the CJA. Further, s. 126(2) provides that Frenchdocuments may be filed by a party to a proceeding in the Family Court of the Superior Courtof Justice, the Ontario Court of Justice and the Small Claims Court; this right appliesanywhere in Ontario. However, in other types of Superior Court proceedings, the right to filepleadings and other documents in French is only available in an area named in Schedule 2 of

the CJA.[30] In other areas of the province, French pleadings and other documents can onlybe filed with consent of the other parties to the Superior Court proceeding.

French Language Services Act

The FLSA ensures that public services are provided in French from any head or central officeof a government agency or institution and in respect of any other office of such agency or

institution that is located in, or services, an area designated in the Schedule.[31] In respect ofthe justice system, the statute governs a person’s right to services in French from MAG’s courtadministration offices located in, or serving, a designated area. These services includeobtaining information about the justice system, initiating processes, filing court documents,and obtaining return dates.

To obtain these services in French, the area in which the court is located must be designatedunder the FLSA. For an area to receive a designation, French-speaking residents must makeup at least 10 per cent of the population or, in the case of urban centres, the number of

French-speaking residents must exceed 5,000.[32] There are currently 25 designated areas.[33] Approximately 85 per cent of French-speaking Ontarians live in these designated areas

(most major metropolitan centers, including Toronto, are designated).[34] French speakers



who do not live in a designated area are entitled to obtain services in French by contacting the

central office of MAG, or a branch office in a designated area.[35]

In July 2011, Ontario Regulation 284/11 came into effect.[36] The new regulation mandatesthat ministries institute measures to ensure that third parties providing services on their

behalf[37] are compliant with the FLSA and adhere to the active offer principle.[38]

2.2 Access to justice

“Access to justice” is a phrase used liberally and frequently. However, we must not lose sightof its importance. In 2008, Chief Justice Winkler stated that:

Everyone favours “access to justice”.... But like so many other words orexpressions, the phrase has become so commonplace that the urgency of itsmeaning has tended to become blunted or worn. We cannot allow “access tojustice” to become a cliché, devoid of meaning and significance. We mustredouble our efforts to open up our system of justice so that it serves the needs ofordinary Ontarians with real life problems. What we require is action and

innovation, not platitudes. [39]

In the context of Ontario’s justice system, achieving the purpose for which minority languagerights were created requires equal access to justice in French for French speakers in Ontario.In Beaulac, the Supreme Court of Canada explained that the purpose of language rightsunder the Criminal Code is to “provide equal access to the courts to accused personsspeaking one of the official languages of Canada in order to assist official language minorities

in preserving their cultural identity.”[40]

Equal Access to Justice Defined

In this report we define “equal access to justice” as meaning that the French linguisticcommunity has the right to receive services in French, in a timely way, and in a manner thatdoes not result in greater cost than for those who receive such services in English. The judge,or justice of the peace, must understand the nature of the right to a French, or bilingual,hearing and, if they preside over bilingual or French hearings, must be able to interact inFrench as well as those judicial officials who preside over English language proceedings.

The Committee found that all participants in the justice system are open to enhancing accessto that system in the French language. However, there is limited awareness of the difficultiesfaced by French speakers who wish to proceed in French and there is no clear metric of whatconstitutes equivalent services to those available in English.

Most French speakers in Ontario understand some English. However, this does not mean thatthey are as comfortable speaking English as they are speaking French. The current structure



of the justice system limits the ability of the French-speaking population to obtain services inFrench without experiencing procedural difficulties and incurring additional cost and delay.The concern is that a French speaker is then faced with the choice between proceeding in hisor her preferred language (and experiencing additional cost and delay), or proceeding inEnglish. The choice is obvious for most bilingual court users. They will choose to proceed in

English.[41] However, the choice is more difficult for the nearly 50,000 Ontarians who speakFrench and not English. If they proceed in English, they will require translation to be able tofollow the proceedings and communicate with the court. Two examples serve to illustrateaccess to justice concerns.

Example 1: French language rights and access to justice in a criminal proceeding

In criminal matters, many accused people do not know that they have a right to a French trialuntil their first court appearance. Most often, the first appearance will not take place before abilingual adjudicator. If the accused chooses to exercise his or her French language rights, thecase will likely have to be adjourned causing financial consequences for the individual and

further delay.[42] The accused may also view requesting an adjournment as an indication thathe or she is less than fully cooperative. Thus, French speakers who speak English are likely tochoose to proceed in English, rather than exercise their French language rights.

Example 2: French language rights and access to justice in a civil proceeding

In this example, a lawyer told the Committee that he had prepared all of the materials inFrench for a pre-trial conference in a bilingual proceeding and travelled to a distant northerncommunity for the pre-trial hearing. At the pre-trial hearing, a unilingual English-speakingjudge advised the parties that a bilingual judge was not available that day. The judge offeredto either proceed in English on the day scheduled, or preserve the litigant’s right to a bilingualpre-trial by adjourning the matter to another day. The litigant chose the former option out ofpractical necessity, despite the fact that the judge could not read the pre-trial materialssubmitted in French.

The Committee also understands that many French-speaking lawyers feel compelled to informtheir French-speaking clients that proceeding in French could have detrimental effects,

including delay, and additional costs.[43]

The justice system must be alive to the various challenges faced by those who would availthemselves of services in French. Access to justice for the French language minoritycommunity requires actively offering French language services, and ensuring that Frenchlanguage rights can be exercised effectively and efficiently in the justice system. Theseobjectives are discussed in the next section.



2.3 Objectives for ensuring access to justice in French forFrench speakers

Two objectives are essential in order to achieve equal access to justice for those who elect toproceed in French. First, there must be a service objective that ensures litigants receiveservices of an equivalent quality to those provided in English. This includes ensuring thatlitigants may proceed in French from the outset, and for the duration of a proceeding, withoutgreater cost or delay than proceeding in English. Second, the judiciary, court administration,the legal profession, and law enforcement officers must ensure the active offer of Frenchlanguage services to court users.

Service Objective

The Committee’s research and consultations[44] revealed that, at present, there is no clear

and coherent French language “service objective” in the justice system.[45]

Setting a clear and coherent service objective has the benefit of allowing the various playersin the justice system to develop a plan and measure success against tangible benchmarks.The scope of a French language service objective, and the consistency with which it isachieved, provides information that is critical to a French speaker’s decision to proceed inFrench or in English. The Committee is of the view that the problems identified by the FLSCommissioner will continue unabated if the service objective is defined as simply ensuringthat an individual requesting services in French will, at some point, receive those services.

As a starting point, MAG and other players in the justice system should adopt the followingFrench language service objective: the choice to proceed in French must be offered at theearliest possible opportunity and, once the decision is made to proceed in French, it shouldnot involve a greater cost or delay than proceeding in English. The service in French mustalso be provided consistently and be of equal quality to that available in English.

To achieve this objective, services must be adapted to the needs of the French-speakingcommunity and efforts must be made to continue to reach and involve that community in the

development and implementation of French language services.[46] This will mean differentapproaches in different areas of the province. For example, in areas where the French-speaking population is small, some matters in French might be dealt with electronically rather

than in person.[47] Electronic service has certain limitations as compared to in-person service.However, it would make French language services available, without additional cost or delay,to a larger population of French speakers, at an early stage in the proceeding.

The Government of Ontario is committed to offering French language services equivalent tothose services available in English. However, in order to achieve this goal, the Government ofOntario needs to ensure that its French language services objective is clear and adequate,



and that achievement of that objective is clearly measureable. In other words, there needs tobe a method to determine whether French language services objectives are being achieved.

Active Offer Objective

Active offer refers to government measures that ensure that French language services areclearly visible, readily available, easily accessible, publicised, and of a quality equivalent to

services offered in English.[48] Active offer includes the initiation of communication with thepublic in French as well as measures such as the provision of signs, notices and otherinformation about services in French.

Active offer is consistent with the principles of the FLSA.[49] Specifically, French languageservices must be of high quality and access to them must be universal. The Government ofOntario has committed to delivering French language services based on the concept of active

offer.[50] However, many improvements are necessary to ensure that true “active offer” isachieved. Thus, the Committee recommends that the justice system continue to improve onits commitment to the “active offer” objective.

A recent study commissioned by MAG, entitled From Theory to Practice: Mechanisms for the

Offer of French Language Services in Ontario’s Justice Sector[51], examined the mechanismsof offer that are best adapted to respond to the needs of French speakers and the factors thatencourage, or limit, French speakers from using French language services. The studyconcludes that actively offering services in French is critical to creating an environment that isconducive to the exercise of the right to access services in French.

Thus, it is up to the Government of Ontario to maintain the Justice Sector’scredibility by more actively communicating to the Francophone population that it isserious about its obligations towards them and that offering good service inFrench is important to the government. These measures should lead thegovernment to further develop the culture of FLS in the Justice Sector and

contribute to achieving better results. [Emphasis added.][52]

This recurring theme of active offer has been commented on by the FLS Commissioner. In2010, he made a recommendation to the Management Board of Cabinet that a clear policydirective with respect to French language services be put in place in the Ontario Public

Service.[53] In a May 2011 investigation report,[54] the FLS Commissioner concluded that:

The OPS is effective at fulfilling its responsibility under the French LanguageServices Act when Francophone members of the public are informed about



available services in French, have access to these services, and are satisfied with

the quality of these services.[55]

The Strategic Plan, first undertaken in 2006, builds the foundations for an active offer ofservices in French. However, further efforts are necessary to change the perception of Frenchspeakers regarding the availability and quality of services in French and ensure that use ofthose services becomes second nature.

Given the overall objective of improving access to justice for French speakers, all participantsin the justice system must ensure that French speakers are informed about available servicesin French at the earliest possible point in the process, have access to those services, and aresatisfied with the quality of service available. The earlier a request for French languageservice is acknowledged and entered into the system, the better and more satisfactory theresponse will be to the user.

With service and active offer objectives in mind, we return to the specific mandates of theCommittee in the remainder of the report.

Conclusion and Recommendations

Without an active offer of French language services in the courts of Ontario, and a clearservice objective, French speakers may not be able to access equal French languageservices and feel truly comfortable in a system designed for English speakers.

The Committee recommends that:

1. The Attorney General:

Adopt a clear and coherent service objective for MAG. The objective should be toprovide equal access to justice for the French-speaking community. This meansthat the French-speaking community has the right to receive services in French, ina timely way, in a manner that does not result in greater cost, and that is of aquality equal to the standard expected in English language proceedings.

Recommit to delivering French language services based on the concept of activeoffer.



Part 3: Committee mandates

As we explained in Part 1, the Attorney General has tasked the Committee with twomandates:

1. recommend ways to actively increase the knowledge of all members of the judiciary inOntario regarding language rights in the justice system; and

2. propose concrete and concerted steps to address the shortage of bilingual judges inOntario.

The first mandate relates to the language rights knowledge of all members of the judiciary,whether or not they are bilingual. After describing one complaint by a French-speaking courtuser who requested a bilingual proceeding but appeared before an English-speaking judgewho was unfamiliar with French language rights, the FLS Commissioner commented asfollows:

A judge asking a French-speaking citizen if he also understands English is lightyears away from a judge actively offering a citizen his rights. As a result, theFrancophone citizen loses confidence in the justice system in French. This has adirect impact on him, because he loses the possibility of a hearing in the languagein which he is most comfortable. It also sends a message to the rest of theFrancophone community that, although these rights exist, they cannot really beexercised. This undermines the purpose of the French Language Services Act,

which is to preserve Ontario’s Francophone community for future generations.[56]

The FLS Commissioner’s report demonstrates that some members of the judiciary remainunaware of language rights, despite a clearly worded description of the judiciary’sresponsibility in this regard by the Court of Appeal for Ontario:

English and French are the official languages of the courts in Ontario, and thecourt has a responsibility to ensure compliance with language rights under s. 126of the Courts of Justice Act. A proper interpretation of this provision is one that isconsistent with the preservation and development of official languagecommunities in Canada and with the respect and preservation of their cultures....Violation of these rights, which are quasi constitutional in nature, constitutesmaterial prejudice to the linguistic minority. A court would be undermining the



importance of these rights if, in circumstances where the decision rendered on themerits was correct, the breach of the right to a bilingual proceeding was tolerated

and the breach was not remedied. [Citation omitted; emphasis added.][57]

The Committee’s first mandate is concerned with ensuring that all judges and justices of thepeace have the knowledge required to comply with this standard.

The Committee’s second mandate contains an embedded assumption that there are too fewbilingual members of the judiciary in Ontario. There is no question that such a perception

exists in the media[58] and among French speakers. It is also apparent that the FLSCommissioner and Canada’s Commissioner of Official Languages share this view. In anappearance before the House of Commons Standing Committee on Official Languages,Graham Fraser, the Commissioner of Official Languages, stated “[t]he shortage of bilingual judges in the superior courts of the provinces and territories is one

of the main barriers to access to justice in both official languages.”[59]

However, in the course of its work,[60] the Committee determined that, absent more statisticaldata, it could not confirm that there was a shortage of bilingual judges and justices of thepeace, or that simply adding to the complement would resolve all of the issues identified.Rather, the Committee examined the reasons why stakeholders frame the issue in this way,and considered possible explanations for the perceived shortage. It was necessary to stepback and take this more holistic approach in order to answer the question posed by theAttorney General.

Two contrasting items reviewed by the Committee illustrate the need for this approach. First,the Superior Court of Justice reported that 52 of the Court’s approximately 300 judges werebilingual, while only approximately 150 of some 200,000 new proceedings were heard in

French in 2008.[61] Reporting these numbers in this manner clearly implies that the number ofbilingual judges in Ontario is adequate to meet the demand. However, that is not theperception of the French-speaking public. There is a real disconnect between the courts and

their users on this critical issue.[62] This disconnect is demonstrated by the fact that 93 per

cent of respondents to a survey conducted by the AJEFO[63] agreed with the proposition that

there are too few bilingual judges on the Superior Court of Justice.[64]

The importance of the issue at the heart of the second mandate, access to justice in French,also warrants the holistic approach taken by the Committee. Thus, the Committee’srecommendations address this more fundamental problem.

3.1 Methodology

In order to fully examine the issues raised by its two mandates, the Committee soughtinformation from various justice system participants, including MAG and its municipal partners,



the Commissioner for Federal Judicial Affairs Canada, the Ontario Court of Justice, theSuperior Court of Justice, the Court of Appeal for Ontario, the Judicial Appointments AdvisoryCommittee, the Justice of the Peace Appointments Advisory Committee, the National JudicialInstitute, the AJEFO, and the Law Society.

To address its first mandate, relating to the judiciary’s knowledge of language rights, theCommittee formed a working group to meet with representatives from each Ontario court. Thecourt representatives provided a thorough analysis of existing education mechanisms onlinguistic rights.

The working group compiled information relating to the resources and education opportunitieson French language rights available to all federally and provincially appointed English-speaking and bilingual judges and justices of the peace. This information formed the basis ofthe Committee’s observations regarding the judiciary’s delivery of services in French.

In summary, the Committee:

focused on the analysis of resources that currently exist in the field of language rightseducation;

highlighted current best practices; and

made recommendations and observations while remaining cognisant and respectful ofthe fact that the judiciary has exclusive responsibility for the education of judges andjustices of the peace.

To address its second mandate, relating to the perceived shortage of bilingual judges andjustices of the peace in Ontario, the Committee requested statistics regarding the volume andpattern of French language use in the justice system from MAG. The Committee was informed

that, at present, MAG does not have comprehensive and reliable statistics.[65]

The Committee reviewed the complaints made to the FLS Commissioner and forwarded to itby the CSD, as well as the results of the AJEFO survey. The Committee also established aworking group to analyse certain types of bilingual proceedings from their inception to theirconclusion.

At the request of the Committee’s Co-Chairs, MAG established a research team in order toassist the Committee in understanding the steps in bilingual proceedings. The research teamwas comprised of representatives from MAG, the judiciary, and a team of POA Courtmanagers.

With the assistance of the research team, the Committee analysed cycles of bilingual

proceedings[66] for criminal law and family law, as well as for provincial offences administeredby POA Courts on behalf of the province. The analysis included each court process, pertinentlegislation, resources required to complete the process efficiently, identification of gaps, andpotential solutions.



Based on the information gathered from justice system participants and various reports onFrench language rights and services, the Committee identified one issue related to its firstmandate, and seven issues related to its second mandate. The Committee then formulatedrecommendations related to each issue. The recommendations seek to improve access tojustice with a view to achieving the French language service and active offer objectives set outabove. The Committee’s findings and recommendations are presented below, in Part 4.



Part 4: Findings and recommendations

4.1 Summary of the committee's findings

With regard to its first mandate, the Committee found that the judiciary may not be adequatelyinformed of French language rights. In order for a bilingual justice system to operate properly,adequate knowledge of French language rights is essential for all judicial officials, whether ornot they are bilingual. If some members of the judiciary do not fully understand languagerights, there is little hope that the justice system will achieve equal access to justice in French.Potential solutions and the Committee’s recommendations on this point are found in Section4.2.

With regard to the second mandate, the Committee found that a number of factors reduceaccess to justice in French and contribute to the perception that there are not enough bilingualjudges and justices of the peace in Ontario. Specifically, when proceedings were biligual or inthe French language, access to justice was frequently slower and more costly than if theproceedings had been undertaken in English.

French-speaking litigants who expected to be served and heard in French, often found thatthey incurred extra cost and experienced delays. This explains, at least in part, why only asmall fraction of the French speakers who come before the courts in Ontario choose toproceed in French.

The Committee made the following seven findings in relation to its second mandate:

French language rights are not clear and coherent and do not ensure that all points ofcontact along the chain of a proceeding are in French.

Proceeding in French can be difficult, time-consuming and expensive.

The procedures under the POA do not allow for seamless and easily accessible servicein French.

The linguistic capabilities, number, and placement of bilingual judges and justices of thepeace are not necessarily determined in accordance with the need to ensure equalaccess to justice for French speakers.

There is a need for greater coordination of bilingual court staff and enhanced awarenessby all court staff of French language rights.

There is a need for greater coordination within MAG, and between the judiciary andMAG, regarding the delivery of bilingual or French proceedings on regional and



provincial levels.

There is inadequate coordination of the delivery of bilingual and French proceedingswith the legal profession.

Potential solutions and recommendations regarding these seven findings are presented inSection 4.3.

The Committee notes that, in the course of its work, it found many examples of timely accessto justice, as well as excellent service in French, for the French-speaking communitythroughout the province. MAG and the Chief Justices at each level of court have done a greatdeal to advance the statutory rights of the French-speaking population in the justice systemand have committed substantial resources to that end. Although this report does not chroniclethese successes, it is important that we acknowledge them and those who are responsible forthem.

In this respect, the five-year Strategic Plan initiative developed in collaboration withFrancophone stakeholders to improve access to justice in French across the justice sector is

of particular note.[67] The Strategic Plan includes:

Promotion of French language services through bilingual court forms, the Justice Ontario

website[68], and the Courthouse way-finding pilot project[69].

Providing training and support to MAG staff.[70]

Resources dedicated to attracting qualified bilingual staff to apply for designated

bilingual positions in the courts.[71]

The provision of best practice recommendations to POA municipal partners (returned toin Section 4.3.3 of this report).

This report should be seen as encouraging continued efforts to improve access to justice forFrench speakers, rather than as a criticism of what has already been achieved. Therecommendations that follow serve as an opportunity to build on current achievements.

4.2 First mandate – Increasing the knowledge of thejudiciary with respect to language rights in the justicesystem

The Committee observed that the judge or justice of the peace, as a powerful and sometimesfirst point of contact between a party and the justice system, has a critical role to play. In orderfor the judiciary to offer high quality services in French, adequate knowledge of Frenchlanguage rights is essential for all members of the judiciary, whether or not they are bilingual.



4.2.1 At present the judiciary may not be adequately informed of Frenchlanguage rights

(A) Understanding the Problem

Responsibility for judicial education programs rests solely with the judiciary. The NationalJudicial Institute and each court’s education committee are responsible for developing anddelivering education programs to all judges in Ontario. The Ontario Court of Justice delivers

education programs for Justices of the Peace.[72]

At the Court of Appeal for Ontario and the Superior Court of Justice, there is currently noprogram on French language rights, or the status of those rights. There is also no orientationon French language rights in the education program for new judges. In the past, a specificlearning module on minority language rights was part of the education program for newjudges. However, this module is no longer offered.

There is also no formal education program in French language rights for new judges at the

Ontario Court of Justice.[73] However, in 2010, the Chief Justice of the Ontario Court of Justicesent a memorandum to all of the court’s judges and justices of the peace. This memorandumreminded judges and justices of the peace of their obligations regarding French languagerights in criminal, family, and POA proceedings. It also reviewed the legislative provisionsapplicable to these proceedings.

The Advisory Committee on Education conducts the coordination, planning, and presentationof education programs for justices of the peace. This committee meets approximately fourtimes per year to discuss matters pertaining to judicial education. It reports to the AssociateChief Justice of the Ontario Court of Justice.

The Education Plan[74] for justices of the peace of the Ontario Court of Justice integratesFrench language rights components in continuing education programs. During their annualconference in 2010, all justices of the peace attended a program on French language serviceobligations. The program was delivered by OCFLS staff and an experienced bilingual justiceof the peace who discussed the legislation and provided advice relating to French criminaland bilingual POA proceedings.

The Justice of the Peace Advisory Committee on Education and the OCFLS developed a neweducation module for bilingual justices of the peace in the spring of 2011. The three-daycurriculum included presentations on French language rights legislation and jurisprudence,mock POA bilingual proceedings, and workshops on legal terminology and the role ofinterpreters. POA Court managers and municipal prosecutors were invited to deliverpresentations and share best practices with the justices of the peace.

The limited formal language rights education for judges suggests that the judiciary may not beadequately informed to respond to issues involving French language rights. Given thecomplexity of language rights in Ontario, absent education, judges and justices of the peace



may not be aware of the extent of those rights sufficient to apply them, and to communicatethem to litigants. This is particularly so in areas of the province where demand is low, andexperience dealing with French-speaking litigants is limited. Judges and justices of the peaceare often focussed on a person’s ability to participate in the process itself, and not necessarilyon the person’s preference to proceed in French.

(B) Potential solutions

The judiciary should ensure adequate language rights education for all judges and justices ofthe peace. Several avenues are available.

The two-week New Judges Program at the Superior Court of Justice and the Ontario Court ofJustice could incorporate information about language rights. The Justices of the PeaceEducation Plan should be recognized as an example to follow.

Language rights education programs should be specifically geared to adult learners. TheNational Judicial Institute has expertise in this field and could be asked to develop a modulethat could be used by the various courts. The National Judicial Institute could also be asked tointegrate French language rights issues in the curriculum designed for other courses offeredto judges.

An electronic Bench Book is available to all provincially and federally appointed judges. Thesection on French language rights was last amended in 2009. It should be updated to includeinformation on additional French language resources available online and should be updated

regularly. Specifically, all materials on jury charges should be available in French.[75]

Additional education and mentoring of newly appointed bilingual judges and justices of thepeace could also be considered, accompanied by periodic updates on language rights and

relevant case law.[76]

(C) Conclusion and Recommendations

In order for Ontario to offer high quality services in French, knowledge of French languagerights is essential for all judges and justices of the peace, whether or not they are bilingual. Ifmembers of the judiciary do not fully understand French language rights, there is little hopethat the justice system will achieve equal access to justice in French.The Committee thereforerecommends that:

2. The Attorney General propose to the Chief Justices of each level of court that:

Education in French language rights be (i) included as part of the program offeredto all newly appointed judges and justices of the peace, and (ii) considered as partof the courts’ continuing education programs.

Appropriate resources with respect to French language rights (including BenchBooks and online resources) be made available to all judges and updated on a



regular basis.

A mentoring program be considered where newly appointed bilingual judges andjustices of the peace are mentored by their experienced bilingual colleagues.

4.3 Second mandate – Addressing the shortage ofbilingual members of the judiciary in Ontario

In great part, the judge or justice of the peace determines the level of French languageservices in his or her court. The Department of Justice reported that:

The presence of a bilingual judge especially has a ripple effect that is felt throughout the entiresystem, starting with his/her own court, and that encompasses his/her colleagues, other

members of the legal system and the general public. [Emphasis added].[77]

The Committee’s review demonstrates that the linguistic abilities and availability of bilingualjudicial officials are critical to access to justice for French speakers. These challenges arediscussed in the following seven sections.

4.3.1 Laws governing French language rights do not ensure that all pointsof contact along the chain of a proceeding are in French

Understanding the Problem

The legislative regime governing language rights in the justice system developed gradually

over several decades.[78] This explains, in part, why there are inconsistencies and gaps in thecurrent legislative scheme. These disparities impede the effective coordination, planning andmanagement of French language services in the Ontario justice system. They also presentdifficulties for lawyers and court users and create a perception that French language rights arenot delivered in a consistent manner, or are not given equal status to English language rightsin Ontario courts.

Inconsistency in designated areas under the French Language Services Act and theCourts of Justice Act

The designation of an area under the FLSA determines the right of French speakers toreceive counter and other services outside the courtroom in French. Designation of an areaunder the CJA determines, among other things, the right of French speakers to a bilingual jurytrial and to file documents in French. However, under the CJA, a litigant who speaks Frenchalso has the right to require that any proceeding in Ontario be conducted as a bilingualproceeding. This means that, at a minimum, the presiding judge must speak French andEnglish. The right to a bilingual proceeding before a judge or officer is not limited todesignated areas, it applies anywhere in Ontario.



The 23 designated areas under the CJA cover a larger geographic area than the 25designated areas under the FLSA. Thus, court locations that are designated under the CJAare not necessarily designated under the FLSA. Additionally, the recent amalgamation ofmunicipalities can make it difficult for the public to understand the boundaries of designatedareas.

The different designations under these Acts make for inconsistent availability of Frenchlanguage services. For example, an individual may have the right to file documents in Frenchin a civil proceeding pursuant to the CJA but find that no one at the counter is able to read the

documents because the courthouse location has not been designated under the FLSA.[79]

This legislative inconsistency can have real and practical consequences for litigants. Forexample, when filing documents in English, court users generally rely on counter staff toreview those documents to ensure that they are complete and in proper form. If they are not,problems may be remedied at the counter, thereby avoiding the need for a second trip to thecourthouse. Where counter staff are not able to read documents in French, this helpful reviewservice is not available.

Bail Hearings and Out-of-Court Services in Criminal Proceedings

Section 530 of the Criminal Code provides that a French-speaking accused can apply for a

trial before a French-speaking, or bilingual justice of the peace, judge, or judge and jury.[80] Itdoes not deal with the right to access counter services, and other court services, in French.Statutory rights to these services are determined by the FLSA. Further, the Criminal Codedoes not require that an accused be provided with a French language bail hearing.

For many accused, a bail hearing will be their first interaction in the court system. Subsection530(3) of the Criminal Code provides that the provincial court judge, or the justice of thepeace, before whom an accused first appears, must ensure that the accused is advised of hisor her right to apply to have a trial in French or English. There is no legal right to a firstappearance in French. However, in some cases, the court will allow a French-speakingaccused to adjourn the bail hearing so that it can be heard by a bilingual judge, or justice ofthe peace. Even in those cases, the accused faces the choice of postponing his or her bailhearing (and remaining incarcerated) or proceeding in English. The bail hearing may also bethe only appearance the accused makes.

Other Examples of French Language Service Gaps and Inconsistencies

There are inconsistencies that arise with respect to POA Court administration and the POA.These are discussed further in Section 4.3.3.



Other legislative gaps exist as well. For example, in family law matters before the SuperiorCourt of Justice in Norfolk County, litigants cannot file documents in French unless the other

party consents.[81] The filing of French pleadings and other documents is not available in theSuperior Court of Justice in Norfolk County because the county is not a designated area

under Schedule 2 of the CJA[82] and there is no Family Court of the Superior Court of Justice

(i.e. Unified Family Court) in that county.[83] However, the same litigants can file theirdocuments in French if the family proceeding is conducted in the Ontario Court of Justice

because the CJA specifically allows for the filing of French documents.[84]

The purpose of the Bilingual Proceedings regulation[85], prescribed by the CJA, is to provide adirective with respect to the exercise of French language rights in civil litigation, family law,and small claims matters, as well as in proceedings under the POA. However, parts of this

regulation could be clearer, for example those parts dealing with translation of documents.[86]

The provisions of the regulation should be more clearly publicised so that the public is awareof them, especially the obligation of a party to take steps to designate the proceeding as

bilingual, and the methods for doing so.[87]

Impact of Gaps and Inconsistencies on Statutory French Language Rights

Legislative gaps and inconsistencies, some of which are set out above, interfere with theability of French speakers to interact with the justice system in French. Interference withFrench language rights often occurs at an early stage in the process and then at multipleintervals along the way. We explain in Section 4.3.2 that, if a French speaker is frustrated inhis or her ability to use French at the first point of contact with the justice system, then the useof English becomes the choice by default (or necessity). For example, if the counter staffcannot assist court users in French, it becomes easier to proceed in English. It is important tomake the justice system accessible in French from the outset of a proceeding through to itsconclusion, without creating undue frustration for court users and administrators.

(B) Potential Solutions

MAG should take steps to ensure that the legislative scheme is clear, coherent, and thatlegislative rights and benefits are clearly communicated to the population. Given that statutoryFrench language rights have been rolled out gradually, over several decades, existing rightsshould also be reviewed. These rights should ensure that the objective of equal access tojustice in French is met, and help to facilitate the use of French at the first point of contact, andat every point thereafter, along the chain of a proceeding.




The complexity of the legislation giving French speakers in Ontario access to justice in Frenchpresents difficulties for lawyers and litigants. There are gaps and ambiguities in the statutesthat limit access to services in French. These problems foster the perception that languagerights are not delivered in a consistent manner, or not given equal status in all courts.

In order to address this problem, the Committee recommends that:


Consider legislative and regulatory changes necessary to improve harmonizationof the rights under the FLSA and the CJA, including harmonizing the designatedareas under the FLSA and the CJA. When considering those changes, thelanguage rights of the accused under the Criminal Code should be taken intoaccount in order to improve the harmonization of rights under the Criminal Codewith those under the FLSA and CJA.

4. MAG:

Consider using technology to provide access to assistance from qualified French-speaking staff when court users seek to file court documents in French, by right orby agreement, in areas that are not designated under the FLSA.

Develop a strategy to assist court users in navigating Ontario’s bilingual justicesystem from the first point of contact and at every point thereafter in the chain of aproceeding.

Review the feasibility of providing French (or bilingual) bail hearings to everyonethat has a right to a French (or bilingual) trial pursuant to s. 530 of the CriminalCode. If appropriate, seek the necessary amendments to the Criminal Code fromthe Government of Canada. Alternatively, consider voluntarily adopting a policy

within MAG to make this service consistently available.[88]

4.3.2 Proceeding in French can be difficult, time-consuming and expensive


The review carried out by the Committee demonstrated that many French speakers do notexercise their right to obtain services in French. The barriers to accessing justice in Frenchcan be grouped into three inter-related categories: (i) procedural difficulties in exercisinglanguage rights; (ii) delay; and (iii) additional expense. This results in decreased access tojustice in French, and multiple appearances for those seeking French or bilingualproceedings. In the criminal sphere, both of these consequences run contrary to theobjectives of Justice on Target.

It is necessary to develop measures to ensure that French speakers are made aware of theirFrench language rights at the earliest stage of their involvement with the justice system, and



to ensure that services are available in a timely manner, at no additional cost to the litigant.Doing so will permit the justice system to meet the dual objectives of ensuring access tojustice in French and protecting and promoting the French language minority community.

Procedural difficulties in exercising French language rights

Many French speakers are either unaware of their right to services in French, or uncertain asto how to exercise those rights. For example, when a French speaker is arrested and releasedon a promise to appear, there may be nothing on the forms, or in the information provided bythe police officer, advising the individual of the right to a hearing in French. By the time theperson appears before the court, he or she may have hired a lawyer who does not speakFrench. Thus, the information about French language rights may come too late in the processto be of real value.

In family law matters, approximately 60 per cent of litigants are self-represented.[89] Suchpersons are less likely to be aware of their French language rights than those represented bycounsel. Even if represented, litigants are often informed of their French language rights toolate in the process, if at all.

In civil matters, there are similar problems. For example, a French speaker has a right to issuea claim in French in the Small Claims Court anywhere in Ontario. If the person attends at oneof the Small Claims Court offices in an area that is not designated under the FLSA, thatperson is unlikely to be informed of the right to issue a claim in French. That person is also

unlikely to receive any assistance in French from counter staff.[90] The same difficulty canarise if a person attends a non-designated area to file documents in a family proceeding.

As we explain further in Section 4.3.7, the difficulty of obtaining access to a bilingual lawyeralso creates a significant obstacle to the exercise of language rights.

Proceeding in French is frequently more time consuming than proceeding in English

The reality in Ontario is that delays are never encountered in the justice system because oneof the players – staff, lawyers, judges, or justices of the peace – does not speak English. Thesituation is quite different for a person who chooses to proceed in French.

Returning to the example of the person released on a promise to appear, the first appearancewill often be made before a judicial officer who does not speak French. If the accused isadvised of the right to a French proceeding, he or she will have to decide whether to return ata later date or proceed that day in English. If the person was detained and not released on apromise to appear, he or she may wish to speak to a lawyer. Arranging to consult with aFrench-speaking lawyer is difficult in many areas of Ontario and often involves delay.



In civil proceedings, the Committee heard of many instances of delay. Whether by error,unforeseen illness, or simple failure to plan, there is often no bilingual judicial officer availableto hear a bilingual matter scheduled for pre-trial, trial, or motion. The courts in many areas ofthe province, with the exception of the Court of Appeal for Ontario, schedule a matter to be

heard by a judicial officer on the next available date.[91] If the matter is to be heard in French,it may still be inadvertently scheduled for the next date when any judge, or justice of thepeace, is available. If no bilingual judicial officer is present on that date, this leads to anadjournment. On the other hand, the matter may be properly scheduled for the next availabledate that a bilingual judicial officer is sitting. However, that date is often later than when anEnglish language matter could be heard.

Self-represented individuals may experience delays when they try to file documents in Frenchat a courthouse. It can take additional time to obtain the service of a French-speaking counterclerk and, in some regions, there may be no French counter service at all. In thesecircumstances, having a document reviewed by court staff for compliance with the relevantrules takes additional time, or may not happen at all.

Proceeding in French results in additional costs

As we have explained, a person may not be made aware of their right to proceed in French atthe first point of contact. This can aggravate the delay suffered by choosing to proceed in

French. In practical terms, this often leads to additional cost.[92] If you retain a lawyer beforeknowing that you can proceed in French, the lawyer you retain may speak only English.Changing lawyers at a later date leads to extra costs. Even when a person hires a bilinguallawyer from the start, if a bilingual judicial officer is not available, or bilingual court staff cannotassist, an adjournment may be required. This creates additional cost for the justice system aswell as the litigant. Increased cost may also be encountered if the judicial officer before whoma French speaker appears disputes his or her right to bring a French, or bilingual, proceeding.[93]

Overall impact is impaired access to justice

The lack of consistent French language services throughout proceedings reduces access tojustice in French. This creates a negative perception within the French-speaking populationthat proceeding in French will necessarily involve difficulties in accessing the justice systemincluding additional delays and expense.

According to a study tracking recent development in language law,[94] lawyers in Ontariobelieve that the “factor that has the most impact on the decision as to whether to proceed in

French is the additional time it takes for services to be provided.”[95] The study concludes that:



Having regard to the perception and existence of the negative impact of proceeding in theminority official language (additional time and costs, mainly), and the possibility of greaterdifficulty in accessing the judicial system and the documentation in that language, it is notsurprising that individuals appearing before the courts, and especially francophones, do not

spontaneously exercise their right to proceed in their own language.[96]

The impact of this negative perception can be insidious. On the one hand, French speakers inOntario are discouraged from accessing justice in French because of delay and increasedcost. This results in an underuse of French language services. On the other hand, thoseimproperly seeking to delay proceedings may invoke French language rights. For example, ina criminal or quasi-criminal context, some individuals believe that choosing to proceed inFrench will delay their proceedings such that an acquittal will result.

Increasing access to justice in French will encourage French speakers to exercise theirlanguage rights, while discouraging those who improperly seek to take advantage of Frenchlanguage rights as a means of causing delay.


In order to address the real and perceived difficulties faced by French-speaking parties whohave the right to proceed in French and in order to enhance access to justice, severalavenues can be pursued:

Ensure that the need for bilingual or French proceedings and services is identified at theearliest opportunity and before the first point of contact with the court system byincreasing coordination with police services, lawyers and other partners, who have thefirst opportunity to communicate French language rights.

Provide information related to the right to bilingual or French proceedings and servicesas well as the names of specific lawyers who are able to offer assistance in French.

Increase awareness of French-speaking litigants and accused through court notices,

templates, documents, signage and toll-free general inquiry numbers.[97]

Continue to make information documents about French language rights in the courtssystem accessible to the general public. For example, pamphlets, booklets and otherinformation should be made available in hard copy at courthouses as well as on theMAG website.

Revise the manner in which court reception areas post and otherwise provide notice ofrights to bilingual, or French, proceedings.

Inform court users of their language rights at the beginning of every court session. If nobilingual judicial officer is present to provide this information, a recorded message could

be played at the beginning of every court session.[98]



Use technology to permit access to bilingual counter staff in non-designated areas underthe FLSA. For example, a toll-free telephone number and scanning service could beprovided so that documents filed by self-represented litigants are reviewed, even wherebilingual counter staff are not available.

More generally, consideration could also be given to examining each line of business of thecourts – civil, criminal, and family law – to determine the most effective way of communicatingFrench language rights to individuals involved in proceedings in those particular areas. Forexample, in family law matters, since more than half of litigants are self-represented,information regarding their French language rights could be provided at the mandatoryinformation sessions they are already required to attend. In the criminal law context, theinformation form developed for accused persons who receive an order to appear could alsobe adapted for each region and could include a section relating to the language rights of the

accused. [99]


French-speaking litigants are not necessarily informed of their French language rights early inthe chain of a proceeding. Once advised, they may have already hired an English-speakinglawyer and be reluctant to change counsel and proceed in French. If not alerted to, and ableto exercise, their French language rights early on, French speakers may find themselvesappearing before a judge, or justice of the peace, who does not speak French.

Exercising the right to proceed in French early on also assists the court in scheduling theappropriate resources. This reduces court appearances and, in the criminal sphere, alignswith Justice on Target.

In order to ensure equal access to justice in French, the Committee recommends that:

5. MAG, in consultation with justice system partners:

review the forms and procedures in use for criminal, civil and family proceedings toensure that justice system clients are informed of language rights at the earliestopportunity;

develop means of accessing those rights in a timely and cost efficient way; and

consider the need to adapt forms and procedures to account for regionaldifferences (e.g., designated and non-designated areas, urban and rural areas,etc.).

6. MAG, in consultation with police services and lawyers’ associations:

develop and implement procedures that ensure that persons are informed of theirlanguage rights at the earliest opportunity; and that French legal services areoffered and made available at the same time as English legal services.



7. MAG:

Take steps to increase the awareness of the right to French and bilingualproceedings through court notices, templates, documents and signage.

Consider ways of making French language services readily available in areas thatare not designated under the FLSA. For example, those seeking to file Frenchdocuments in areas that are not designated might be assisted by a toll-freetelephone number.

4.3.3 Procedures under the POA do not allow for seamless and easilyaccessible French language services


The POA system, as it currently stands, does not allow for streamlined French languageservices and easily accessible bilingual proceedings. French-speaking individuals sometimesface difficulties in exercising their right to bilingual proceedings, and obtaining associatedFrench language services such as documents, answers to general inquiries, and counterservices. Therefore, it is important to look at alternatives to assist POA Court partners inproviding equal access to justice for French-speaking individuals by making the exercise ofFrench language rights easier and more consistent.

To achieve this result, it is necessary to continue to increase collaboration among all justicesystem partners, including police services, lawyers’ associations, court users, courtadministration staff, municipal partners and the judiciary.

Difficulties in exercising the right to bilingual proceedings and obtaining associated Frenchlanguage services

Over two million provincial offences charges are brought annually under statutes governing

public welfare matters.[100] Defendants are entitled to elect a bilingual proceeding under the

POA.[101] Based on the proportion of Ontarians who are French-speaking, this representsover 100,000 provincial offence charges for which the accused had a right to proceed inFrench. However, both the FLS Commissioner and MAG receive complaints relating to theavailability of French language services and bilingual proceedings conducted under the POA

each year.[102]

These complaints highlight ongoing issues in accessing French language services in POACourts. The complaints are varied, but frequently focus on the lack of bilingual proceedings,

the lack of bilingual judicial officials, and the inaccessibility of French language services.[103]

POA Court Administration and the Provincial Offences Act



The POA sets out procedures for the prosecution of offences under provincial statutes andregulations as well as municipal by-laws. Under separate Memoranda of Understandingbetween MAG and Ontario municipal partners, MAG delegates responsibility for the

administration of POA Courts to municipalities.[104] These courts hear matters pursuant to the

POA.[105]

In POA Courts, the “officially bilingual court system in Ontario, as prescribed by the Courts ofJustice Act, continues, including the provision of a prosecutor who speaks French and Englishwhen a bilingual trial is requested on a charge that is covered by the Transfer

Agreement.”[106] Notwithstanding the fact that they are entitled to a bilingual proceeding,litigants in POA Courts may have limited or no rights to counter services in French at somemunicipal court offices. Municipalities must provide out of court services at the same level asthe services provided by MAG in areas designated under the FLSA. However, somemunicipalities are not designated under the FLSA and may not have passed a bylaw creatingthe same French language service obligations as the Act. Thus, any dealings related to Part IIprovincial offences (for example, fine payment of parking infractions) in those undesignated

areas may be done only in English.[107] Notices related to parking infractions are a municipal

responsibility, and may be delivered exclusively in English.[108] The accused is only entitled toa bilingual proceeding if he or she decides to dispute the parking infraction by requesting atrial and thus becomes involved in a judicial process administered by the POA Court officepursuant to the CJA.

Lack of bilingual proceedings

Some French-speaking individuals request bilingual proceedings, but find they are unable toproceed in French when they attend a POA Court due to the unavailability of bilingual justices

of the peace.[109] As a result, they either request an adjournment in order to obtain a French

trial, or proceed in English in order to avoid delays.[110] The same occurs when, for example,an individual wishes to plead guilty with an explanation.

In some cases, when the person attended court, he or she ended up with an English-speakingprosecutor and/or appearing before an English-speaking justice of the peace, despite havingrequested a French trial. If the matter was to proceed in French, the trial had to be adjourned.

A person in that situation may well become discouraged and elect to proceed in English.[111]

Lack of bilingual documents and services

In addition to encountering problems accessing timely bilingual proceedings, some Frenchspeakers encounter difficulties in obtaining documents and services in French in the POAcontext. For example, the Committee was informed of instances where individuals completed



“Notice of Intention to Appear” forms in French, but received notifications of trials in English.[112] Further, although individuals may have a right to a bilingual proceeding, some cannot

obtain counter services in French.[113]


In 2007, the POA Table French Language Services Subcommittee, composed of membersfrom AJEFO and AFMO, along with POA Court and MAG staff, was established to identify andresolve issues regarding the delivery of French language services in POA Courts. The POAFrench Language Services Subcommittee conducted a survey in 2010 entitled Survey of POAMunicipal Partners Regarding French Language Services. It analysed the results of thesurvey and developed recommended best practices for municipal partners in order to betterequip them to provide bilingual proceedings.

The recommended best practices relate to five areas:

staff awareness of French language services obligations

staff training

active offer of French language services

planning and integration of French language services

collaboration among municipal partners and the French language community

More recently, the Law Commission of Ontario suggested important reforms to the procedures

related to provincial offences, including parking infractions.[114] Among a long list ofrecommendations, the Commission suggested that those responsible for developing thenewly updated POA procedural code should consider “proactive procedures that will allow forthe early identification of French language needs so that procedures can be put in place torespond to those needs early in each [POA] case and by the time of a first appearance in

court.”[115]

A recurrent theme is the need to provide information related to French language rightsproactively, and to streamline services before, and during, proceedings. Possible strategiesinclude the following:

Develop a consistent way of informing French-speaking clients of their rights to servicesand bilingual proceedings in POA courts through police services and lawyers’

associations.[116]

Provide seamless out–of-court services in French to pay POA infraction notices, unless

it is a Part II parking infraction (i.e., online, in person, by telephone and by email).[117]



Ensure that bilingual justices of the peace are available to receive guilty pleas withexplanations by designating bilingual days and indicating their availability (along withany other pertinent information) on the reverse of infraction notices.

Alternatively, establish procedures and mechanisms to enter bilingual pleas usingtechnology.

Provide municipal and provincial court staff and police officers with calendars indicatingthe pre-determined dates for bilingual first appearance proceedings in POA Courts.Video conferencing opportunities may also offer a cost effective way to hear bilingualmatters and make the best use of limited bilingual resources. Use of a toll-free telephone

number could also be explored.[118]

Encourage municipal partners to revise the “Notice of Intention to Appear” form to

ensure that both language versions indicate the right to proceed in French.[119]

4.3.4 The linguistic abilities, number, and placement of bilingual judges andjustices of the peace is not necessarily determined in accordance with theneed to ensure equal access to justice for French speakers


In order to provide French speakers equal access to the justice system in Ontario, there mustbe a sufficient number of linguistically qualified members of the judiciary in all regions of theprovince. The presence of a bilingual judicial officer has a significant impact because of the

predominant influence and leadership role held by judges, and justices of the peace.[120]

Sufficient access to judicial officers who speak and understand French is but one of the manymeasures discussed in this report that would serve the interest of equal access to justice.However, it is a crucially important one. Equal access to justice is linked to the linguisticabilities of a judge, or justice of the peace, because French speakers must be able tounderstand, and must be understood by the court, at the same level as English-speakers.Looking at the issue in this way affects the number and availability of French-speaking judgesand justices of the peace in the province.

The current structure of the linguistic qualification process for judges in some courts inOntario, and the placement of bilingual judicial officers in all courts, is not adequate. Litigantswho seek French language services often do not receive these services in a timely manner,

nor are they of equal quality to English language services.[121] As explained in Section 4.3.2,the French linguistic community’s experience has been that French language services areoften inferior to services available in English.

In order to ensure that there is true access to justice for French-speaking parties and to buildthe confidence needed for French speakers in Ontario to exercise their rights to services inFrench, there must be a clear means of measuring the need for bilingual judicial appointments



and the linguistic qualifications of bilingual candidates selected to fill those positions.[122]

There is an informal assessment process that occurs in many cases as vacancies arise.However, the assessment should be formalized in all areas of the province in accordance witha clear service objective of ensuring that access to justice is provided to the French languageminority. To accomplish this, and to ensure that the need for bilingual justices can beassessed periodically in the future, an improved statistical base is required. We return to thispoint in section 4.3.6.

There is no clear definition of what constitutes a bilingual judge or justice of the peace

Ontario’s three levels of court do not use a single, or consistent, definition of the linguisticqualifications of a bilingual judge or justice of the peace, nor do they use a similar process toidentify who is a bilingual judge or justice of the peace. This inconsistency leads to widelyvarying levels of French proficiency among Ontario’s “bilingual” judicial officers. Neither the

Criminal Code[123] nor the CJA[124] indicates the level of French proficiency required topreside over French, or bilingual proceedings.

The issue of language proficiency does not arise for English-speaking members of thejudiciary. Given the qualification to become a judge (i.e., being a member of the Ontario bar,with ten years experience), every judge in Ontario speaks English, and is able to preside overproceedings in that language. There has never been a need to define English proficiency. It isassumed that a judge presiding over a hearing in English must have an excellent command ofthe language. It follows that a judge hearing evidence and communicating with the parties in

French should have an excellent command of our other official language.[125] The objectivestandards for French language proficiency set out by the Government of Ontario and theGovernment of Canada provide useful references. The “superior” provincial standard and“Level C” federal standard (with “E” and/or appropriate “Professional” requirements) could

guide assessments of bilingualism among judicial candidates.[126] A bilingual judicial officer’sFrench language abilities must be equal to that which is required when the proceedings are inEnglish. In any other situation, the interests of justice may not be served.

Complaints have been received regarding the ability of a presiding judicial officer tounderstand French. For example, members of the AJEFO have reported to the Committeethat they occasionally believe they are not fully understood by “bilingual” judges. This leads tothe question of how proficiency in French is assessed and taken into account when membersof the judiciary are appointed, or assigned to hear bilingual cases. The recruitment andappointment of bilingual justices of the peace and bilingual judges of Ontario’s three courtsare approached quite differently.

Objective evaluation of bilingual candidates at the Ontario Court of Justice

The appointment of bilingual justices of the peace of the Ontario Court of Justice is at one end

of the spectrum.[127] The Chief Justice of the Ontario Court of Justice determines whether a



position is to be filled by a bilingual justice of the peace, and the Attorney General generallypays deference to this determination. The Justices of the Peace Appointments AdvisoryCommittee actively considers French language needs throughout the entire applicationprocess, including advertising and reaching out to the French-speaking community and

evaluating candidates’ language competency according to the province’s standards.[128]

While the candidates self-identify as being qualified, the Justices of the Peace AppointmentsAdvisory Committee nonetheless requires that they undergo evaluations to objectively

determine their level of written and oral French proficiency.[129] The successful candidate is,upon appointment, identified as a bilingual justice of the peace.

The process for judges appointed to the Ontario Court of Justice is similar to the appointmentof justices of the peace except that there is no assessment of the candidate’s ability to write inFrench by a provincially certified evaluator. There is, however, a rigorous informal assessment

of French to ensure that the candidate is fully bilingual.[130] In accordance with the Court’spolicy, only candidates who are already fully bilingual are considered for appointment as abilingual judge.

Self-identification of French abilities at the Superior Court of Justice and Court ofAppeal for Ontario

The appointment process for bilingual judges of the Superior Court of Justice and the Court ofAppeal for Ontario lies at the other end of the spectrum. The Judicial Appointments AdvisoryCommittee for federal appointments does not specifically advertise or reach out to the French-speaking community for candidates. Its application form simply asks whether the candidate is“competent to hear and conduct a trial” in French. With very few exceptions, there are nointerviews of candidates. The candidate’s ability in French will not be objectively assessedother than as may be discovered by the Judicial Appointments Advisory Committee throughreference verifications, or through their own personal experience. With respect to theappointment and assignment of judges, the Chief Justice can indicate a preference for theappointment of a bilingual judge and it is treated as such by the Minister of Justice.Candidacies for bilingual judges are reviewed on an ongoing basis, not on the basis ofvacancies.

In addition, federal appointments do not identify whether the successful candidate isappointed as a bilingual judge. Of the 52 judges that the Chief Justice of the Superior Court ofJustice reported as having self-identified as able to preside over some form of Frenchlanguage matter, only 22 self-identified as being able to hear all types of matters in French.The ability of the 30 other judges to hear bilingual matters ranged from those that self-identified as being able to hear most types of matters, to those that indicated they could onlydeal with matters in writing.



The number and placement of bilingual judges and justices of the peace are notnecessarily determined in accordance with the need to ensure equal access to justice

None of the courts has established a formal process to assess French judicial needs for aparticular region. Of course, in the absence of reliable statistics, carrying out a formalassessment is difficult. In that regard, the Committee was informed that statistics andhistorical data on bilingual and French proceedings are unreliable and do not provide asufficient basis for determining the need and placement of bilingual judges and justices of thepeace by region. Additionally, since French speakers often do not exercise their Frenchlanguage rights due to the problems outlined in this report, including the inconsistentavailability and proficiency of bilingual judges and justices of the peace, any statistics would

likely understate the need.[131]

The information received by the Committee makes it apparent that there is a problem.According to figures provided by the Superior Court of Justice, an exceptionally small fractionof the proceedings commenced in a recent year resulted in a bilingual hearing. Not allproceedings result in hearings. However, the proportion of bilingual hearings to totalproceedings commenced does not correlate to the proportion of Ontario’s population that

speaks French.[132]

In determining the appropriate complement of bilingual judges and justices of the peace,

scheduling realities facing the courts in Ontario have to be taken into account.[133] The needfor additional bilingual judges and justices of the peace must also be assessed in a morenuanced way than simply reviewing the percentage of Ontario’s French-speaking population

in any given region.[134] While the size of a region and the number of French-speakingOntarians within a region must be taken into account, equal access to justice must remain theoverall objective.

Viewed in that light, the province requires more bilingual judges and justices of the peace thanthe population numbers alone might otherwise suggest. In essence, if Ontario’s courtsembrace the objective of equal access to justice, they must offer French speakers a justicesystem in which they are provided with equivalent services, without delays or additional costs.French speakers would then have true equal access to the courts and would not beprejudiced for having exercised their French language rights.


The courts would benefit from a formal process for fully and objectively assessing the bilingualcapacity and actual language skills of judicial candidates when an appointment is made.Although the current practice of consultation on the need for bilingual judges and justices ofthe peace is useful, it does not fully address the issues that have been identified by theCommittee. The adequacy and placement of bilingual judges and justices of the peace must



be assessed in a more formal way, with the objective of ensuring equal access to justice in atimely and cost-effective manner, throughout the province.

With respect to language skills, the Environmental Scan: Access to Justice in Both OfficialLanguages report recommended that a system to evaluate the language skills of judges beestablished in order to avoid gaps in the judicial appointment process:

A number of people attribute the shortage of Francophone or bilingual judges tothe appointment processes, which do not give sufficient consideration to thecandidates’ language proficiency. They say not only that judges’ languageproficiency should be considered, but also that it should be assessed, to ensurethat judges who are considered to be bilingual are actually able to hear a case as

well in French as they do in English.[135]

A similar conclusion was reached by the Commissioner of Official Languages in the FinalInvestigation Report on the Institutional Bilingual Capacity of the Judiciary for the SuperiorCourts in Nova Scotia and Ontario, 2011:

With respect to the federal judicial appointment process, it is clear that the mainproblem is the lack of a formal process for assessing fully and objectively thebilingual capacity of superior courts and the language skills of candidates when anappointment is made. The current practice of the Minister of Justice consultingwith chief justices before each new appointment in order to learn about theirneeds is a step in the right direction but does not completely solve the issue.

[Emphasis added].[136]

The approach used by the Justices of the Peace Appointments Advisory Committee hasseveral significant advantages. In the assignment of justices of the peace, the Chief Justicehas both subjective and objective confirmation that the candidate will be willing and able tocarry out the full range of duties of a bilingual justice of the peace. This is the case becausethe person applied as a bilingual candidate, was identified as a bilingual appointment, andwas objectively evaluated using the province’s language proficiency standards. Additionally,French speakers appearing before a bilingual justice of the peace know that he or she hasmet these objective standards.

Aspects of the process used for assessing and appointing candidates as bilingual justices ofthe peace can usefully be adopted, with certain adaptations, for the assessment andappointment of persons as judges of the Ontario Court of Justice, the Superior Court ofJustice and the Court of Appeal for Ontario.

Currently, candidates for appointment as bilingual judges to the Ontario Court of Justiceundergo an interview in French. There could be an additional requirement that the interview



process include an assessment of their written ability in French by a provincially certifiedevaluator. Alternatively, all shortlisted candidates could be required to undergo a writtenassessment.

With respect to the Superior Court of Justice and the Court of Appeal for Ontario, a protocolcould be entered into among the Chief Justice of each court and the Minister of Justice,whereby the Minister of Justice would honour requests by a Chief Justice for the appointmentof a bilingual judge. This process has been used, with success, for appointments to theOntario Court of Justice and for the appointment of justices of the peace. This would give theChief Justice of the Superior Court of Justice and the Chief Justice of Ontario greater ability toidentify and assign bilingual judges to those areas where there is a need.

In addition, the Minister of Justice could direct that the process for the recruitment andassessment of candidates be modified to require that, where a candidate indicates awillingness and ability to be appointed as a bilingual judge, that candidate would be requiredto undergo a set form of assessment and submit the results with their application. This wouldhave the benefit of providing an objective assessment of the candidate’s ability to sit as abilingual judge. An objective confirmation would assist the Judicial Appointments AdvisoryCommittee in its work. It would also increase public confidence that French-speaking litigantswill be understood and decisions will not be delayed because of translation. With respect todetermining the required number and placement of bilingual judges and justices of the peace,many factors could be considered such as the size of the region, the French-speakingpopulation within that region, and the various duties judges and justices of the peace arerequired to perform. These factors, as well as the principle of equal access to justice, shouldguide the Chief Justice of each court in assessing the number of bilingual judges and justicesof the peace required. Initially, this assessment is likely to be imperfect. With the benefit ofexperience, and as more reliable data becomes available, adjustments will inevitably benecessary. Ultimately, the number should reflect potential demand and the need to havesufficient bilingual judges and justices of the peace in place to ensure that courts throughoutthe province can schedule French or bilingual proceedings without delay and additional costto court users.


The courts have different definitions of “bilingual judge”. At the Ontario Court of Justice, theinterview process for bilingual judge candidates includes a portion in French during which theinterviewer evaluates the candidate’s fluency in French. There is no formal evaluation ofwriting skills. At the Superior Court of Justice and the Court of Appeal for Ontario, judges self-identify as bilingual and there is no evaluation of oral or written French languagecompetencies. Neither the Superior Court, nor the Ontario Court of Justice, has a formalprocess to assess French language judicial needs for a particular region.

The Justices of the Peace Appointments Advisory Committee actively considers Frenchlanguage service needs throughout the entire application process by advertising and reaching



out to the French-speaking community, and objectively evaluating candidates’ languagecompetency. Prospective bilingual justices of the peace undergo an evaluation of their oraland written French abilities in accordance with MAG standards.

In order to ensure equivalent access to justice in French, the Committee recommends that:


In order to ensure that there are sufficient qualified bilingual applicants forappointment as judges and that court users have the assurance that bilingualjudges have met objective standards, the Committee recommends that:


Propose to the Ontario Judicial Appointments Advisory Committee that it adopt aprocess similar to the one used by the Justice of the Peace Appointments AdvisoryCommittee for the recruitment and evaluation of bilingual candidates.

Propose to the Minister of Justice that (i) it direct its Judicial Appointment AdvisoryCommittees to develop a process for the recruitment and evaluation of bilingualcandidates utilizing a similar standard to the one applied by the Justices of thePeace Appointments Advisory Committee; and (ii) that, for future appointments,persons appointed who met the criteria established to qualify as a bilingualcandidate be identified, on appointment, as bilingual judges.

Propose to the Chief Justice of the Ontario Court of Justice that MAG and the courtcollaborate to: (i) carry out an assessment of the need for bilingual judges andjustices of the peace in each region to meet the objective of promoting access tojustice in French; and (ii) develop a protocol to ensure that, over time, the requirednumber of bilingual judges and justices of the peace are appointed.

Propose to the Chief Justice of the Superior Court of Justice and the Chief Justiceof Ontario that a process similar to that proposed to the Chief Justice of theOntario Court of Justice be undertaken for the various regions of the SuperiorCourt of Justice and by the Court of Appeal for Ontario. Following that review, theCommissioner for Federal Judicial Affairs Canada, and the Minister of Justice inconjunction with the Chief Justices, should consider collaborating to develop aprotocol to ensure that, over time, the identified need for bilingual judges is filled.

4.3.5 There is a need for greater coordination of bilingual court staff andenhanced awareness by all court staff of French language rights


The systems currently in place with respect to the coordination of bilingual court staff do notensure timely delivery of the bilingual resources required to support bilingual or Frenchproceedings, nor do they ensure that litigants are informed of their French language rights.



There is no single individual or entity responsible for ensuring that there is sufficient French-speaking court staff in Ontario. The need for bilingual court staff is largely assessed on a localbasis by the local or area manager, who is encouraged to consult with the OCFLS. This lackof coordination contributes to the broader problem of unequal access to justice in French.

There is no single person responsible for coordination of bilingual staff

It is the responsibility of each manager to ensure that required designated bilingual positions

on their teams are properly identified, and satisfactorily staffed.[137] In the past, the JusticeSector Human Resources Strategic Business Units and the OCFLS undertook initiatives toreconcile the requirements of designated bilingual positions with the actual languagecompetencies of the employees occupying these positions.

There is a simple set of three primary guiding principles which court managers are to apply inthe effective management of designated bilingual positions:

1. What programs and services does the unit provide and which of those programsand services must be provided in French? A manager must identify the full range ofprofessional and administrative services being offered in the office and all positions thatdeal directly with the public, stakeholders or client groups.

2. Is there sufficient French-speaking staff to provide quality services within MAG’sestablished service standards, including during vacations, leaves, shift work, sickdays, training days, etc.? French-speaking customers in a designated area are entitledto equal access to, and quality of, the full range of services offered in English.

3. From a corporate perspective, were the correct procedures followed to ensure

that MAG meets its requirements under the FLSA?[138] When developing a programor service, consideration must be given to the needs of the French-speaking population,which can vary from those of the English-speaking population.

MAG’s capacity to offer French language services in the courts of Ontario relies, in large part,on the manager’s ability to recruit and retain the appropriate French-speaking staff indesignated bilingual positions. The OCFLS tracks and monitors designated bilingual positions.[139] Any changes to these positions should be made in consultation with the OCFLS (thoughsuch consultation does not always occur).

Recruiting and retaining individuals with the appropriate oral and written French languageskills for their positions in designated bilingual positions is inevitably more challenging andcomplex than recruiting for non-designated positions. The pool of qualified candidates is muchmore limited and a large majority of managers are not in a position to assess personally thelevel and quality of the candidate’s French.



As a result, it is not uncommon to find situations where a designated bilingual position is eitherleft unfilled or is occupied by someone who does not have the appropriate level of Frenchlanguage skills. The hiring manager is responsible for ensuring that the designated bilingualposition is filled by a candidate who has the appropriate language skills. The ability of MAG toprovide quality French language services depends on the effective management of its Frenchlanguage staffing requirements through designated bilingual positions.


The CSD should conduct an internal review of its designated bilingual positions to ensure thatthere is sufficient bilingual staff to allow for equivalent access and active offer of Frenchlanguage services. MAG should continue to explore innovative solutions to ensure sufficientbilingual staff resources. Currently, CSD is collaborating with the OCFLS to develop a courtsupport program in French, modelled after the court support services program offered atDurham College.


The ability of MAG to fulfill its service objective and provide an active offer of French languageservices depends on the effective management and staffing of designated bilingual positions.It would be beneficial to determine which positions are critical to the effective management ofbilingual or French proceedings and to the delivery of French language services throughoutthe CSD.

To ensure equal access to justice in French, the Committee recommends that:

12. MAG:

Develop procedures in each region to ensure that there is timely and seamlessprovision of bilingual services in French.

Conduct an internal review of designated bilingual positions and the policies andprocedures in place to ensure that appropriate bilingual staff continue to beavailable in future.

4.3.6 There is a need for greater coordination within MAG, and betweenthe judiciary and MAG, regarding the delivery of French or bilingualproceedings on a regional and provincial basis


There is inadequate coordination between the judiciary and CSD with respect to the deliveryof bilingual or French proceedings. This lack of strategic coordination and formalaccountability for French language services in Ontario adversely affects the provision ofFrench language services in the courts of Ontario and results in unequal access to justice in



French. It is therefore critical to improve the collaboration and dialogue between justicepartners as it relates to French language service issues.

There is no single person responsible for French or bilingual proceedings

Each CSD region is primarily responsible for delivering local criminal, civil, small claims, andfamily court services, and providing judicial support services. Each region is also responsiblefor maintaining records, files, exhibits, and databases as well as enforcing court orders.Regions must manage juries, fines, fees, trust funds, and regional stakeholder

communications. Divisional initiatives are implemented at the regional level as necessary.[140]

In the CSD, there is no one bilingual person dedicated to the French language servicesportfolio. The corporate lead, who has the French language services portfolio within the CSD,also has a multitude of other responsibilities. Managers of Court Operations are responsiblefor the effective functioning of services within the courts they oversee. This includes Frenchlanguage services.

There is no single person, or entity, in the judiciary responsible for structuring, scheduling, andotherwise overseeing bilingual or French proceedings in the courts. The Chief Justices haveoverall responsibility for all matters within their courts, including the provision of judicialservices in French. However, the Chief Justices have a multitude of responsibilities and theprovision of services in French is but one of these.

Clearly defined responsibilities

There are issues with undefined responsibility for resolving French language service issues atan early stage, and adequately integrating such services into court operations. Managers ofCourt Operations are not always equipped to answer requests with respect to bilingual orFrench proceedings. Questions are received regularly by the OCFLS with respect to what isnecessary and under whose responsibility a particular bilingual issue may fall.

Within MAG, a Manager of Court Operations has a broad spectrum of responsibilitiesincluding the management of court staff. The French language services part of the Manager’sportfolio is but a small piece of his or her greater portfolio. In this context, responsibilities couldbe more clearly defined by having a single knowledgeable and dedicated person whomanages French language services as a whole in the administration of the courts.

Additional mechanisms are needed within the judiciary and the administration of the courts toallow for better coordination of French language services in the justice system whileintegrating these services into the processes and structures already in place. The judiciarymay wish to consider identifying lead regional or local French language services judges andjustices of the peace, who are charged with ensuring better coordination of trials and



proceedings and have clear accountability for French language service issues in each region.CSD and POA Court offices should also consider identifying regional or local French languageservices leads to ensure better coordination of trials or other proceedings from theadministrative side, and better integration of French language services into existing structuralprocesses.

Regional coordination, planning and communication

There is limited regional coordination and planning with respect to French language matters inOntario’s courts.

Trial coordinators act under the direction of the judiciary. This means that even if they believethey should be scheduling a bilingual or French proceeding, if a previous endorsement says aFrench interpreter is sufficient, or an English proceeding will occur instead, then the trialcoordinators have no choice but to follow the direction in the endorsement. If a judge, orjustice of the peace, in each region was responsible for the provision of services in French,the trial coordinator could liaise with that person in order to resolve any issues. Similarly, if aCSD staff person in each region was responsible for the provision of services in French, thejudge or justice of the peace assigned responsibility for bilingual or French proceedings couldraise issues regarding the delivery of services in French by court staff with that person.

An assessable and reviewable French services coordination plan between the judges, orjustices of the peace, and the CSD may be of assistance.

There continue to be challenges to providing French language services widely to all regions ofthe province, particularly in areas where bilingual resources are scarce, or the French-speaking population is small. Moreover, given the wide variety of local practices and needs,each region may need to structure itself differently to provide timely services in French whileavoiding unnecessary additional costs. There may not be a single, province-wide solution thatwill be viable across Ontario. Regional leads from the CSD and the judiciary could worktogether to determine how procedures for providing French language services could, andshould, be adapted to account for these differences.

There is also a need to continue the collaborative work between the CSD, municipal partnersand French language services stakeholder groups to improve the delivery of French languageservices in POA Courts.

Establishing French language service protocols between the CSD and the judiciary can onlyserve to alleviate some of the problems described. For example, since 2010 there has been aprotocol in place between MAG, which receives complaints relating to the delivery of Frenchlanguage services, and the Offices of the Chief Justices. This protocol provides a mechanismto advise the Chief Justices of complaints related to the judiciary. This allows for betterunderstanding of concerns and more effective responses.




Establishing Protocols

French language scheduling protocols would be useful tools in ensuring that the request for aFrench or bilingual proceeding is properly scheduled, tracked, and staffed. Ideally, protocolscould also address a broad number of issues related to French language services, includinglanguage education, resolution of French language services complaints, allocation ofdesignated bilingual positions and media responses.

At the Court of Appeal for Ontario, procedures are in place to ensure that the scheduling ofFrench or bilingual cases is done in an equivalent manner to the scheduling of English cases.[141] While informal procedures may be in place in other Ontario courts, they may not besufficient to ensure a consistent approach.

It is critical to have French or bilingual cases directed into the bilingual stream as early aspossible, and to ensure that those cases remain in the bilingual stream until their resolution.To that end, there is a need to manage bilingual or French cases as effectively as possible.This is especially true when parties are self-represented. A regional protocol could help toensure that once an individual requests a bilingual or French proceeding, that individualknows what to expect and receives services in French until the end of his or her matter in thecourts, without having to repeat requests for French language services.

Education

Educating the Ontario public, and Ontario Public Service staff, with respect to language rightsis critical to ensuring that the French language service objective is readily met.

Public

Lawyers and community groups have long stressed the importance of making easy-to-understand legal information available to the public so that people can make better use of the

justice sector’s resources.[142] The divisions that are part of the strategic planning process inOntario’s justice sector work to make information about French language services more

accessible to French speakers.[143] The new French language section of the Justice Ontariowebsite, launched in February 2009, aims to give French speakers a better understanding of

their language rights and better access to French language services.[144] Initiatives of thiskind need to be continued and expanded.

Staff



All of MAG’s divisions offer French language courses to their employees, whether or not they

are bilingual.[145] Education programs on French language rights and services are alsoavailable to all staff. However, there could be increased communication to encourageparticipation in these programs.

MAG has partnered with the federal Department of Justice on various initiatives to provideexcellent language education to justice professionals whose responsibilities include servicesin French, as legislated by the Criminal Code. Two of these initiatives are of particular interest.

First, since 2005, the French Language Institute for Professional Development (FLIPD) hasbeen bringing together professionals who provide services to the public in French in theOntario justice system, as well as Crown Attorneys from other provinces. The one-week longcurriculum, developed by MAG’s Criminal Law Division and the AJEFO includes mock trials,information sessions, and workshops. FLIPD has been highlighted as a best practice andrecommended as a program to be duplicated and made available to justice system

professionals across Canada.[146]

Second, in 2011, MAG rolled out an interactive online education program in French (e-FLIPD).[147] This program responds to the need for year-round education and provides a user-friendlyway to enhance linguistic skills on a large scale. Bilingual staff can improve their legalterminology in French, follow the various steps and requirements of an actual bilingualproceeding, and work on a number of relevant exercises allowing them to evaluate their newlyacquired knowledge.

Visibility and Signage

French language services, and information about rights to those services, should be morevisible in MAG and the courts. There is a need for bilingual signage, whether it is permanentor temporary signage, at each courthouse and government office in Ontario. It is also

important that this signage be grammatically correct and contain no spelling errors.[148]

Apart from being a deviation from the active offer of service, a lack of bilingual signage, orcorrect bilingual signage, can send a message that in Ontario, French is not as important asEnglish. Signage issues may be resolved as MAG’s “Courthouse Wayfinding SignageStandards” policy is scheduled to be finalised by 2012. A court signage lexicon has alreadybeen developed with the most common court signs and is available on MAG’s intranet and onthe internet.

Conclusion and Recommendations

There is limited internal accountability for resolving French language services issues at anearly stage, or for adequately integrating services. There is also a lack of communication



regarding French language services between MAG and the judiciary. This has the potential toexacerbate existing problems.

There is a lack of knowledge pertaining to French language services rights and of theapplication of these rights, which can lead to problems in the administration of French, orbilingual proceedings. A lack of French language services knowledge on the part of justicesystem staff and the public can occur at the court counter, or in the courtroom.

In order to improve the coordination of the delivery of French, or bilingual proceedings on botha regional and provincial basis, the Committee recommends that:

13. MAG:

Direct the CSD to designate a French language services coordinator, and considerdesignating a person in each region to coordinate French language servicesregionally, and promote a regional exchange of ideas and strategies for improvingthe availability and delivery of French language services.

Develop and implement procedures in consultation with the judiciary in each courtregion, that ensure timely and seamless services in French are provided from thepoint where a litigant asks for a French or bilingual proceeding, up until thecompletion of the proceeding.

Continue its collaborative work through the CSD with municipal partners andFrench language service’s stakeholder groups to improve the delivery of Frenchlanguage services in all areas, including POA Courts, by sharing tools andresources.

Take steps to respond to the challenges of training bilingual staff by ensuring thatall staff are aware of the right to French language services, and MAG’scommitment to promote the availability and use of such services.

Ensure that the design and implementation of CIMS allows for tracking of Frenchlanguage proceedings and the use of French language services in the justicesystem.

Provide for regular consultation, both regionally and provincially, between thejudiciary and CSD regarding French language services issues, and develop clearand measureable targets for improving the availability and delivery of thoseservices.

To ensure that delivery of French language services is coordinated with the judiciary and thatproblems are identified and resolved quickly, the Committee recommends that:


Discuss with the Chief Justices of all levels of court the possibility of designating ajustice of their court to be responsible for French language service issues.



Discuss with the Chief Justice of the Ontario Court of Justice, and the Chief Justiceof the Superior Court the possibility of designating a justice in each region to beresponsible for French language services in that region.

4.3.7 There is inadequate coordination of the delivery of French or bilingualproceedings with the legal profession

(A)Understanding the Problem

The legal profession has a critical role to play in ensuring that French speakers are able toaccess the justice system in Ontario in their own language. Litigants depend upon lawyers toexplain the law, and to advocate before the courts on their behalf. Lawyers play a fundamentalrole in raising awareness of, and explaining language rights in the justice system, and inadvocating those rights before the courts. The bar must play a leadership role in this regard ifaccess to justice in the French language is to be fully realized. Of course, it is also importantto ensure that there are sufficient bilingual lawyers to meet the need of French speakers forrepresentation before the courts and that their services are readily accessible to the peoplethat need them. The right to plead in French is hollow if the citizen cannot find a lawyer toadvocate for him in his own language.

The Rules of Professional Conduct

In its commentary to rule 1.03 of the Rules of Professional Conduct[149] relating to thestandards of the legal profession and a lawyer’s responsibility for ensuring the properadministration of justice, the Law Society suggests that “[a] lawyer should, where appropriate,advise a client of the client’s French language rights relating to the client’s matter,” includingthose under the CJA, the FLSA and the Criminal Code. Thus, every lawyer who has a French-speaking client should inform his or her client of their language rights at the outset of theprofessional relationship.

The commentary assumes that the lawyer will know when it is appropriate for the lawyer togive his or her client this advice. However, this will not always be the case. For example,French-speaking persons frequently have English sounding names. They usually also speakEnglish, often quite well. Further, there are many new Canadians whose first language is notFrench or English, but who may prefer service in French. Given the breadth of the languagerights enjoyed by litigants before Ontario courts, it is appropriate that such persons be advisedof their French language rights by their lawyer. Finally, the rule assumes that lawyers knowwhat the French language rights of their clients are.

Language Rights Education



There is little focus on language rights education in Ontario’s law schools[150] or in the othercourses of study required to access the profession. While the AJEFO offers continuingprofessional development on language rights issues to its approximately 700 members,notably at its annual convention, there is otherwise little available to the profession by way of

continuing professional development on this subject.[151] While the Committee is not aware ofany studies or statistics measuring compliance with the commentary of rule 1.03 of the Rulesof Professional Conduct, which encourages a lawyer to advise his or her client of languagerights, it is safe to assume that it is frequently honoured in the breach. As noted above, it isoften difficult to identify who is French-speaking and, more importantly, a French-speakingperson who is fluent in English, but might be more comfortable in French. Unless the issue israised by the lawyer, it is unlikely that the client will know of, or exercise, his or her Frenchlanguage rights. Thus, increasing the profession’s awareness of language rights througheducation is of great importance.

The lawyer’s dilemma with respect to language rights

The lawyer who is aware of his or her client’s language rights, and the obligation to inform herclients of those rights, faces a dilemma. The lawyer is also obliged under the Rules ofProfessional Conduct to deal with clients with honesty and candour and to provide them with

frank advice.[152] As we explained earlier, this means informing clients that designating aproceeding as bilingual, or otherwise asserting the right to proceed in French, will often meanthat the matter will take longer, and be more expensive. This will be sufficient to discouragemany French speakers from exercising their language rights.

Solving this dilemma requires that lawyers’ associations be engaged in the changes to thesystem proposed earlier in this report. It also requires that they ensure that those who mightchoose to proceed in French are made aware of their right and are provided with access tojustice as outlined herein.

Availability of French-speaking lawyers

Of course a sufficient French-speaking bar that is easily accessible to French-speakingclientele is also essential. It is of limited utility to prime the police and court staff to providenotices to citizens of the right to counsel in French if no French-speaking lawyer is then

available to take on the case.[153]

According to the Law Society, approximately 5,400 of its 41,000 lawyer members self-identifyas able to offer services in French. These members are involved in different areas of the lawand not all of them are in private practice. They are located in different geographic areas.There is no easily accessible and comprehensive listing of these lawyers by geography andpractice area. The AJEFO website does list its members in this way but they include only



about 500 of the practitioners in the province who report as being able to offer services in

French.[154]

The Law Society’s Referral Service, which will put a member of the public in touch with alawyer in a particular practice area, operates in French. However, this service is notinstantaneous and is not well advertised in courthouses. The service only lists lawyers whoagree to participate in the program and there are areas in the province where the listings forlawyers prepared to provide certain services in French are quite limited. Thus, there is noeasy way, for example, for French speakers to be put in touch quickly with a French-speakinglawyer at the time of arrest and detention. If a French-speaking detainee is only able to find,retain, and instruct, an English-speaking lawyer, there is little chance that the case willproceed in French.

Statistics compiled at the Court of Appeal for Ontario over a nine-year period revealed thatonly 0.33 per cent of criminal appeals argued by a lawyer proceeded in French, or bilingually.With the French-speaking population representing about five per cent of the population ofOntario, this figure raises significant questions about whether or not French speakers are ableto exercise their language rights. Interestingly, for criminal appeals argued by self-representedindividuals, the Court of Appeal for Ontario recorded that 2.73 per cent proceeded in French.This is almost nine times the number of appeals in French where the person was representedby counsel.

The Committee’s limited mandate did not allow for the disparity in these figures to be fullyexplored. However, it is likely explained, at least in part, by the failure of French-speakingaccused to retain bilingual lawyers. There can, of course, be good reasons why a Frenchspeaker might choose to retain a lawyer who is not bilingual. The lawyer may be known to theperson or may be considered by that person to be exceptionally suited to represent him orher. However, the decision to retain a lawyer who is not bilingual may also be made becausethe client was not aware of the right, or became aware after retaining a lawyer who did not

speak French. It may also be because a bilingual lawyer was simply not available.[155] Forexample, the Committee understands that when a person is detained in a police station andgiven a list of lawyers that can be called to provide counsel, the list does not always contain abilingual lawyer.

Legal Aid Ontario provides duty counsel services. These are available in French in manycourthouses across Ontario. However, it is unclear how a French speaker is to obtainassistance in French where bilingual duty counsel is not available.

Legal Aid Ontario also provides French language services in varying degrees to low-incomepeople through 23 general and specialty independent legal clinics, and one student legal aid

clinic.[156] Some of these clinics have limited French language service resources, while others

are fully bilingual designated agencies under the FLSA.[157] Finally, Legal Aid Ontariofinances Francophone legal advice telephone lines whereby French-speaking clients can getfree, confidential advice and referrals for many of the legal issues covered by community legal



clinics.[158] Again, the Committee’s limited mandate did not allow for further analysis of theavailability of French language services by Legal Aid Ontario.

The Law Society’s referral service and the AJEFO website assist some French speakers inretaining a bilingual lawyer. Aside from these exceptions, the Committee did not find evidenceof legal associations taking active steps to increase the availability of bilingual lawyers andfacilitate access to those lawyers for French-speaking litigants.


The profession needs to take action in three areas. First, it needs to ensure that all of itsmembers are aware of the basic French language rights available in Ontario and comply withthe obligations set out in the Rules of Professional Conduct by clearly advising clients of theirlanguage rights and taking active steps to assist clients in exercising them. Second, it needsto take steps to ensure that there will be sufficient numbers of well trained bilingual lawyersavailable to French speakers. Finally, it must take steps to ensure that members of thatpopulation are easily able to access that representation.

It is clear that the Law Society needs to take a leadership role in this regard. While legalassociations such as AJEFO, the Ontario Bar Association, and others can assist, the LawSociety is in the best position to lead and coordinate these tasks.

With respect to the difficulty in retaining a bilingual lawyer, the Law Society plays an important

role in increasing this access. In 2006, the Law Society Act[159] was amended to provide that

the Law Society has the duty to “facilitate access to justice for the people of Ontario.”[160]

Given the French-speaking populations’ right to access justice in French, and their apparentfailure to exercise this right, the Law Society should consider whether timely access tobilingual lawyers is a cause it wishes to promote. If so, it should consider ways that it, alone,or in conjunction with law faculties and lawyers’ associations, could increase the availabilityand number of lawyers who can represent clients in French.

Law schools also play a role. The teaching of basic language rights can begin in the lawschools. It would be useful for law schools to include such basic rights in the curricula ofappropriate courses such as constitutional law and civil and criminal procedure. To ensurenew lawyers are aware of French language rights in Ontario, the Law Society could includelanguage rights as part of its licensing requirements. Continuing professional development isnow compulsory for Ontario lawyers, including a component dedicated to professionalismissues. Given the commentary to rule 1.03 of the Rules of Professional Conduct, coursesraising awareness in respect of language rights could be offered by the Law Society, AJEFO

and others.[161] Furthermore, courses on various other subjects could be prepared so as tointegrate problems or issues concerning French language rights.

Ensuring sufficient numbers of properly educated bilingual lawyers requires that law schoolssupport French language legal education. There is a French Common Law program at the



University of Ottawa. However, other Ontario law schools could develop programs with a viewto facilitating the ability of their graduates who speak French to practise in that language. Forexample, a law graduate who speaks French may be hesitant to offer his or her services inFrench because he or she is not familiar with French legal terminology. A terminology coursecould assist in expanding the cadre of bilingual practitioners.

At the post-law school stage, the Law Society should ensure that licensing examinations andother requirements such as articling positions are accessible to French-speaking candidatesin a manner equivalent to English-speaking candidates.

Finally, the Law Society could take a leadership role and encourage other legal associationsto coordinate efforts to pair French-speaking litigants with a French-speaking lawyer in atimely way, and at the outset of a proceeding. Steps could be taken to ensure that lists oflawyers that may be made available at police stations, by legal aid officers and others, alwaysidentify and list lawyers offering services in French.


Some of the earlier recommendations in this report have included calling upon MAG to consultwith lawyers’ associations in implementing improvements to the delivery of legal services inFrench across the province. The following recommendations are focused on the legalprofession. Since the legal profession is self-governing, it is appropriate for the AttorneyGeneral to engage in discussions and make recommendations to the Law Society and to lawschools.


15. The Attorney General, in cooperation with the Law Society and law faculties:

Explore measures to support language rights education, and French languagetraining, as well as take steps to increase the number of lawyers able to providelegal services in French.

16. The Attorney General propose to the Law Society that it:

Consider assessing language rights knowledge in the licensing process.

Collaborate with lawyers’ and paralegals’ associations where possible to developstrategies to enhance the knowledge of lawyers and paralegals of Frenchlanguage rights and services before the court system.

Collaborate with lawyers’ and paralegals’ associations, courts administration, LegalAid Ontario, and other relevant stakeholders, to ensure that: (i) new clients areadvised of relevant language rights; (ii) the cadre of French-speaking lawyers andparalegals in the province is known; and (iii) access to these lawyers andparalegals by French speakers who require their services, is facilitated.

17. The Attorney General propose to Legal Aid Ontario that it:



Carry out a review of the availability and delivery of French language services,informed by the findings and recommendations in this report.



Part 5: Conclusion

In spite of the goodwill on the part of participants in the justice system, the French-speakingcommunity continues to experience barriers to accessing justice in French. These obstaclesprevent the legitimate exercise of French language rights in Ontario’s courts. Ensuring equalaccess to justice in French, through active offer and a clearly defined service objective,requires concerted efforts on the part of MAG, judicial officials, court staff, justice partners,and lawyers, to continue improving the provision of French language services in the province.

The Committee’s first mandate, increasing the knowledge of the judiciary with respect tolanguage rights in the justice system, led to the conclusion that the judiciary may not beadequately informed of language rights at this time. Addressing this problem requiresimproved communication of existing language rights through straightforward commitments tojudicial education. A more informed judiciary will be better able to communicate languagerights to litigants that come before the court and to make decisions that properly implementthose rights.

The Committee’s second mandate, addressing the shortage of bilingual justices in Ontario, ledto three overarching themes for improvement:

i. increased coordination and clearly defined responsibilities;

ii. improved communication; and

iii. harmonisation and simplification.

The concern that there is a shortage of bilingual judges and justices of the peace in Ontarioreflects, at least in part: (i) gaps and inconsistencies in the statutory French language rightsregime; (ii) lack of resources to support French language service initiatives; and (iii)informational gaps which make it difficult to plan and coordinate French language services. Inthis context, the Committee has recommended including French language services in MAG’sdata collection system and clearly defining responsibilities to ensure that French languageservices are accessible and responsive to demand. In addition, objective evaluation of thelanguage abilities of candidates for bilingual judicial positions, together with increasedplanning for, and assignment of, bilingual staff and judicial officers, will ensure meaningfulaccess to justice for French speakers in Ontario.

With respect to increased coordination and clearly defined responsibilities, the Committeerecommended designated court staff to ensure the timely and seamless provision of servicesin French and French or bilingual proceedings going forward. Similarly, designation of French



language services coordinators at the provincial and regional level, justices of the peace atthe Ontario Court of Justice, and judges at each level of court, are recommended.

To improve communication, the Committee recommended taking steps to increase awarenessof the right to proceed in French at an early stage. Straightforward measures includingsignage, bilingual forms, and protocols to accurately track the need and use of Frenchlanguage services in the justice system will also improve communication.

Harmonisation of existing legislation and procedures for offering services in French, andaccessing French or bilingual proceedings, will ensure that litigants are able to exercise theirFrench language rights at all points of contact along the chain of a proceeding. TheCommittee also recommended working together with municipal partners, police services,lawyers’ associations, court users, and the judiciary to implement procedures that ensure easyaccess to French language services in POA proceedings.

The primary focus of the Committee’s recommendations is ensuring that those who seekFrench language services in Ontario’s courts are provided with effective service that is bothcost and time effective. The courts, MAG, and other justice system stakeholders havedemonstrated a sustained commitment in this regard, as evidenced by MAG’s Strategic Plan.Our Committee’s report offers opportunities for new thinking and better planning in the variousparts of our justice system. It does not require a significant commitment of governmentresources not already dedicated to the provision of French language services in the justicesystem. Rather, the Committee is confident that equal access to justice in French is realistic,and achievable, in large part through the continuation and improvement of initiatives that arealready under way. Once a comprehensive review of the requirement for bilingual judges andjustices of the peace, and staff in each region, is carried out, a plan to ensure such resourcesare in place over time can be implemented. Ensuring access to justice for French speakers inOntario demands no less.



Part 6: Summary of recommendations

The Committee’s conclusion and recommendations with respect to each of its findings arelocated in a box at the end of each section of analysis in this report. For ease of reference,those conclusions and recommendations are reproduced in this section of the report.

6.1 Objectives for ensuring access to justice in French forFrench speakers

Without an active offer of French language services in the courts of Ontario, and a clearservice objective, French speakers may not be able to access equal French languageservices and feel truly comfortable in a system designed for English speakers.



Adopt a clear and coherent service objective for MAG. The objective should be toprovide equal access to justice for the French-speaking community. This meansthat the French-speaking community has the right to receive services in French, ina timely way, in a manner that does not result in greater cost, and that is of aquality equal to the standard expected in English language proceedings.

Recommit to delivering French language services based on the concept of activeoffer.

6.2 At present the judiciary may not be adequatelyinformed of French language rights

In order for Ontario to offer high quality services in French, knowledge of French languagerights is essential for all judges and justices of the peace, whether or not they are bilingual. Ifmembers of the judiciary do not fully understand French language rights, there is little hopethat the justice system will achieve equal access to justice in French.

The Committee therefore recommends that:

2. The Attorney General propose to the Chief Justices of each level of court that:

Education in French language rights be (i) included as part of the program offeredto all newly appointed judges and justices of the peace, and (ii) considered as part



of the courts’ continuing education programs.

Appropriate resources with respect to French language rights (including BenchBooks and online resources) be made available to all judges and updated on aregular basis.

A mentoring program be considered where newly appointed bilingual judges andjustices of the peace are mentored by their experienced bilingual colleagues.

6.3 Laws governing French language rights do not ensurethat all points of contact along the chain of a proceedingare in French

The complexity of the legislation giving French speakers in Ontario access to justice in Frenchpresents difficulties for lawyers and litigants. There are gaps and ambiguities in the statutesthat limit access to services in French. These problems foster the perception that languagerights are not delivered in a consistent manner, or not given equal status in all courts.

In order to address this problem, the Committee recommends that:


Consider legislative and regulatory changes necessary to improve harmonizationof the rights under the FLSA and the CJA, including harmonizing the designatedareas under the FLSA and the CJA. When considering those changes, thelanguage rights of the accused under the Criminal Code should be taken intoaccount in order to improve the harmonization of rights under the Criminal Codewith those under the FLSA and CJA.

4. MAG:

Consider using technology to provide access to assistance from qualified French-speaking staff when court users seek to file court documents in French, by right orby agreement, in areas that are not designated under the FLSA.

Develop a strategy to assist court users in navigating Ontario’s bilingual justicesystem from the first point of contact and at every point thereafter in the chain of aproceeding.

Review the feasibility of providing French (or bilingual) bail hearings to everyonethat has a right to a French (or bilingual) trial pursuant to s. 530 of the CriminalCode. If appropriate, seek the necessary amendments to the Criminal Code fromthe Government of Canada. Alternatively, consider voluntarily adopting a policywithin MAG to make this service consistently available.



6.4 Proceeding in French can be difficult, time-consumingand expensive

French-speaking litigants are not necessarily informed of their French language rights early inthe chain of a proceeding. Once advised, they may have already hired an English-speakinglawyer and be reluctant to change counsel and proceed in French. French speakers may findthemselves appearing before a judge, or justice of the peace, who does not speak French ifthey are not alerted to, and able to exercise, their French language rights early on.

Exercising the right to proceed in French early on also assists the court in scheduling theappropriate resources. This reduces court appearances and, in the criminal sphere, alignswith Justice on Target.


5. MAG, in consultation with justice system partners:

review the forms and procedures in use for criminal, civil and family proceedings toensure that justice system clients are informed of language rights at the earliestopportunity;

develop means of accessing those rights in a timely and cost efficient way; and

consider the need to adapt forms and procedures to account for regionaldifferences (e.g., designated and non-designated areas, urban and rural areas,etc.).

6. MAG, in consultation with police services and lawyers’ associations:

develop and implement procedures that ensure that persons are informed of theirlanguage rights at the earliest opportunity; and that French legal services areoffered and made available at the same time as English legal services.

7. MAG:

Take steps to increase the awareness of the right to French and bilingualproceedings through court notices, templates, documents and signage.

Consider ways of making French language services readily available in areas thatare not designated under the FLSA. For example, those seeking to file Frenchdocuments in areas that are not designated might be assisted by a toll-freetelephone number.

6.5 Procedures under the POA do not allow for seamlessand easily accessible French language services

The current POA system does not allow for seamless and easily accessible French languageservices. Given the extremely high volume of provincial charges prosecuted each year in



Ontario, it is important to look for additional ways to assist POA Court partners in meeting theFrench language service objective.

There is a strong need to continue collaborative work between the CSD, municipal partners,and French language service stakeholder groups to continue to improve the delivery ofFrench language services in POA Courts.

In order to ensure equal access to justice in French, the Committee recommends that:

8. MAG, in consultation with representatives from municipalities, police services, lawyers’associations, court users, and the judiciary:

Take into account the recommendations of the Law Commission of Ontario indeveloping an updated POA by considering proactive procedures to ensure thatFrench speakers are informed at the earliest possible opportunity of their right toservices in French and bilingual proceedings in POA Courts, and implementprocedures to ensure that French language services are easily accessed, withoutdelay or additional cost.

9. MAG:

Propose working with municipal partners to develop seamless out-of-court servicesin French for the payment of parking infraction notices.

Propose working with the Ontario Court of Justice to explore mechanisms thatcould facilitate timely access to bilingual justices of the peace throughout theprovince, for example, by offering services over the phone or through videoconferencing.

Continue to support the POA Table French Language Services Subcommittee toidentify best practices and facilitate their widespread adoption by relevant offices,agencies and municipalities.

6.6 The linguistic abilities, number, and placement ofbilingual judges and justices of the peace is notnecessarily determined in accordance with the need toensure access to justice for French speakers

The courts have different definitions of “bilingual judge”. At the Ontario Court of Justice, theinterview process for bilingual judge candidates includes a portion in French during which theinterviewer evaluates the candidate’s fluency in French. There is no evaluation of writing skills.At the Superior Court of Justice and the Court of Appeal for Ontario, judges self-identify asbilingual and there is no evaluation of oral or written French language competencies. Neitherthe Superior Court, nor the Ontario Court of Justice, has a formal process to assess Frenchlanguage judicial needs for a particular region.



The Justices of the Peace Appointments Advisory Committee actively considers Frenchlanguage service needs throughout the entire application process by advertising and reachingout to the French-speaking community, and objectively evaluating candidates’ languagecompetency. Prospective bilingual justices of the peace undergo an evaluation of their oraland written French abilities in accordance with MAG standards.

In order to ensure equivalent access to justice in French, the Committee recommends that:


Propose that every level of court adopt the same definition of a bilingual judge andjustice of the peace.

In order to ensure that there are sufficient qualified bilingual applicants for appointment asjudges and that court users have the assurance that bilingual judges have met objectivestandards, the Committee recommends that:


Propose to the Ontario Judicial Appointments Advisory Committee that it adopt aprocess similar to the one used by the Justices of the Peace AppointmentsAdvisory Committee for the recruitment and evaluation of bilingual candidates.

Propose to the Minister of Justice that (i) it direct its Judicial Appointment AdvisoryCommittees to develop a process for the recruitment and evaluation of bilingualcandidates utilizing a similar standard to the one applied by the Justices of thePeace Appointments Advisory Committee; and (ii) that, for future appointments,persons appointed who met the criteria established to qualify as a bilingualcandidate be identified, on appointment, as bilingual judges.

Propose to the Chief Justice of the Ontario Court of Justice that MAG and the courtcollaborate to: (i) carry out an assessment of the need for bilingual judges andjustices of the peace in each region to meet the objective of promoting access tojustice in French; and (ii) develop a protocol to ensure that, over time, the requirednumber of bilingual judges and justices of the peace are appointed.

Propose to the Chief Justice of the Superior Court of Justice and the Chief Justiceof Ontario that a process similar to that proposed to the Chief Justice of theOntario Court of Justice be undertaken for the various regions of the SuperiorCourt of Justice and by the Court of Appeal for Ontario. Following that review, theCommissioner for Federal Judicial Affairs Canada, and the Minister of Justice inconjunction with the Chief Justices, should consider collaborating to develop aprotocol to ensure that, over time, the identified need for bilingual judges is filled.



6.7 There is a need for greater co-ordination of bilingualcourt staff and enhanced awareness by all court staff ofFrench language rights

The ability of MAG to fulfill its service objective and provide an active offer of French languageservices depends on the effective management and staffing of designated bilingual positions.It would be beneficial to determine which positions are critical to the effective management ofbilingual or French proceedings and to the delivery of French language services throughoutthe CSD.


12. MAG:

Develop procedures in each region to ensure that there is timely and seamlessprovision of services in French.

Conduct an internal review of designated bilingual positions and the policies andprocedures in place to ensure that appropriate bilingual staff continue to beavailable in future.

6.8 There is a need for greater coordination within MAG,and between the judiciary and MAG, regarding thedelivery of French or bilingual proceedings on a regionaland provincial basis

There is limited internal accountability for resolving French language services issues at anearly stage, or for adequately integrating services. There is also a lack of communicationregarding French language services between MAG and the judiciary. This has the potential toexacerbate existing problems.

There is a lack of knowledge pertaining to French language services rights and of theapplication of these rights, which can lead to problems in the administration of French, orbilingual proceedings. A lack of French language services knowledge on the part of justicesystem staff and the public can occur at the court counter, or in the courtroom.

In order to improve the coordination of the delivery of French, or bilingual proceedings on botha regional and provincial basis, the Committee recommends that:

13. MAG:

Direct the CSD to designate a French language services coordinator, and considerdesignating a person in each region to coordinate French language servicesregionally, and promote a regional exchange of ideas and strategies for improvingthe availability and delivery of French language services.



Develop and implement procedures in consultation with the judiciary in each courtregion, that ensure timely and seamless services in French are provided from thepoint where a litigant asks for a French or bilingual proceeding, up until thecompletion of the proceeding.

Continue its collaborative work through the CSD with municipal partners andFrench language service’s stakeholder groups to improve the delivery of Frenchlanguage services in all areas, including POA Courts, by sharing tools andresources.

Take steps to respond to the challenges of training bilingual staff by ensuring thatall staff are aware of the right to French language services, and MAG’scommitment to promote the availability and use of such services.

Ensure that the design and implementation of CIMS allows for tracking of Frenchlanguage proceedings and the use of French language services in the justicesystem.

Provide for regular consultation, both regionally and provincially, between thejudiciary and CSD regarding French language services issues, and develop clearand measureable targets for improving the availability and delivery of thoseservices.

To ensure that delivery of French language services is coordinated with the judiciary and thatproblems are identified and resolved quickly, the Committee recommends that:


Discuss with the Chief Justices of all levels of court the possibility of designating ajustice of their court to be responsible for French language service issues.

Discuss with the Chief Justice of the Ontario Court of Justice, and the Chief Justiceof the Superior Court the possibility of designating a justice in each region to beresponsible for French language services in that region.

6.9 There is inadequate coordination of the delivery ofFrench or bilingual proceedings with the legal profession

Some of the earlier recommendations in this report have included calling upon MAG to consultwith lawyers’ associations in implementing improvements to the delivery of legal services inFrench across the province. The following recommendations are focused on the legalprofession. Since the legal profession is self-governing, it is appropriate for the AttorneyGeneral to engage in discussions and make recommendations to the Law Society and to lawschools.




15. The Attorney General, in cooperation with the Law Society and law faculties:

Explore measures to support language rights education, and French languagetraining, as well as take steps to increase the number of lawyers able to providelegal services in French.

16. The Attorney General propose to the Law Society that it:

Consider assessing language rights knowledge in the licensing process.

Collaborate with lawyers’ and paralegals’ associations where possible to developstrategies to enhance the knowledge of lawyers and paralegals of Frenchlanguage rights and services before the court system.

Collaborate with lawyers’ and paralegals’ associations, courts administration, LegalAid Ontario, and other relevant stakeholders, to ensure that: (i) new clients areadvised of relevant language rights; (ii) the cadre of French-speaking lawyers andparalegals in the province is known; and (iii) access to these lawyers andparalegals by French speakers who require their services, is facilitated.

17. The Attorney General propose to Legal Aid Ontario that it:

Carry out a review of the availability and delivery of French language services,informed by the findings and recommendations in this report.



Appendix:

Bilingual Judicial Statistics

(updated April 1, 2011)

Federal Jurisdiction

Number of federal bilingual judges by region.

RegionCourt of Appeal -

Bilingual

Court of Appeal

- Total

Superior Court of Justice

- Bilingual

Superior Court of

Justice - Total

Office of the Chief

JusticeN/A - N/A -

Toronto (GTA) 4 - 14 88

East N/A - 15 44

South West N/A - 2 32

Central South N/A - 4 35

North East N/A - 8 21

North West N/A - 1 8

Central East N/A - 3 43

Central West N/A - 3 33

Total 4 24



50[162] 304[163]

Provincial Jurisdiction

Number of bilingual judges and justices of the peace

Region Judges (Bilingual) Judges (Total) Justices of the Peace (Bilingual) Justices of the Peace (Total)

All

35

30 full-time and

5 per diem

325

284 full-time and

41 per diem

36

32 full-time and

4 per diem

398

345 full-time and

53 per diem

[1]__ Justice Thorburn chaired the Sub-Committee which addressed the Committee’s firstmandate.

[2]__ Previous member from the Ontario Court of Justice: Justice Claude Paris.

[3]__ Previous members from the Court Services Division: Brian Garrah, Jor Kassam.Previous members, from the Office of the Attorney General: Pam Hrick, Omar Khan and Kathleen Murphy.

[4]_ R.S.C. 1985, c. C-46.

[5]_ Courts of Justice Act, R.S.O. 1990, c. C.43.

[6]_ French Language Services Act, R.S.O. 1990, c. F.32.

[7]_ See Office of the Coordinator of French Language Services for the Justice Sector,Strategic Plan for the Development of French Language Services in Ontario’s Justice Sector(Toronto: Ministry of the Attorney General, 2006), online:<http://www.sciencessociales.uottawa.ca/crfpp/pdf/plan_strategique-Avr2007_e.pdf>[Strategic Plan].

[8]_ Provincial Offence Act, R.S.O. 1990, c. P.33.

[9]_ Statutory language rights are discussed below in Section 2.1.

[10] The Committee’s findings and recommendations are set out below in Part 4. A summaryof the Committee’s recommendations is provided in Part 6.

[11] Justice on Target is the province’s strategy to reduce delays in Ontario’s criminal courts.This initiative was launched in 2008.



[12] Ontario, Office of the French Language Services Commissioner, Annual Report 2008-2009: One Voice, Many Changes, (Toronto: Office of the French Language ServicesCommissioner, 2009). Ann Merritt, Assistant Deputy Attorney General, CSD, provided theCommittee with a summary of these complaints dated January 25, 2011.

[13] Canada, Commissariat aux langues officielles, Rapport annuel 2000-2001: en ligne<http://www.ocol-clo.gc.ca/html/ar_ra_2000_01_f.php>

[14] Supra note 12 at 36.

[15] Ibid. at 35.

[16] Ibid. at 37.

[17] The Committee’s mandates are set out in Section 1.1.

[18] Constraints on time and resources did not permit the Committee to specifically deal withconcerns related to other types of judicial officers, including for example Deputy Judges of thesmall claims court, Masters and Registrars in Bankruptcy. The Committee acknowledges thatthese judicial officers also need to play a role in the provision of French language services.The assessment of the linguistic abilities, number and placement of these judicial officersshould be completed by the courts that they are attached to.

[19] R. v. Mercure, [1998] 1 S.C.R. 234 at 269.

[20] Mahe v. Alberta, [1990] 1 S.C.R. 342 at 362.

[21] Ibid. and R. v. Beaulac, [1999] 1 S.C.R. 768 at para. 25 [Beaulac].

[22] Beaulac, ibid.

[23] For example, the preamble to the FLSA explains that the legislation was enacted torecognize “the contribution of the cultural heritage of the French-speaking population” and because the government “wishes to preserve [the cultural heritage] for futuregenerations.”

[24] For example, the FLSA does not provide for French services in “non-designated areas”under the Act. This is discussed in greater detail below.

[25] Section 530(1).

[26] Section 530.01 requires a prosecutor, on application of the accused, to provide a copy ofthe information, or indictment, translated into the official language used by the accused. Section 532 promotes the expansion of judicial bilingualism by providing thatbroader provincial legislative provisions take precedence over language rights afforded underthe Criminal Code. Finally, s. 849(3) requires that pre-printed forms in Part XXVIII of theCriminal Code (such as search warrants and appearance notices) be printed in both officiallanguages.



[27] Section 125(2).

[28] This is in contrast to the substantive rights conferred by s. 530(1) of the Criminal Code.

[29] Bilingual Proceedings, O. Reg. 53/01. Section 4 of the regulation stipulates that adefendant may require that the proceeding under the POA be conducted as a bilingualproceeding and be presided over by a judge or officer who speaks both official languages.

[30] The areas named in Schedule 2 of the CJA are not identical to the designated areasunder the FLSA. This discrepancy is discussed in Section 4.3.1.

[31] Section 5(1).

[32] Ontario, Office of Francophone Affairs, Map of Designated Areas, online: Office ofFrancophone Affairs <http://www.ofa.gov.on.ca/en/flsa-mapdesig.html>.

[33] FLSA Schedule.

[34] Ontario, Office of Francophone Affairs, The French Language Services Act: An Overview,online: <http://www.ofa.gov.on.ca/en/flsa.html>.

[35] French services are also offered online at ServiceOntario,<http://www.ontario.ca/en/services_for_residents/index.htm>. Agencies funded in whole or in part by the Government of Ontario may choose to request anofficial designation from Cabinet. To receive designation, an agency must: (i) offer qualityservices in French on a permanent basis; (ii) guarantee access to its services in French; (iii)have French speakers on its board of directors and in its executive; and (iv) develop a writtenpolicy for services in French that is adopted by the board of directors and that sets out theagency’s responsibilities with respect to services in French. Currently, 14 public serviceagencies designated under the FLSA relate to the justice system. There are also government-funded stand-alone Francophone community agencies that serve the French-speakingpopulation. (See Designation of Public Service Agencies, O. Reg. 398/93).

[36] Provision of French Language Services on Behalf of Government Agencies, O. Reg.284/11.

[37] MAG alone has more than 100 third party service providers.

[38] Supra note 36. The active offer principle is discussed further in Section 2.3.

[39] The Honourable Warren K. Winkler Chief Justice of Ontario, “Access to Justice –Remarks” (address delivered at the Canadian Club of London, London, 30 April 2008), online:Court of Appeal for Ontario<http://www.ontariocourts.ca/coa/en/ps/speeches/accessjustice.htm>.

[40] Beaulac, supra note 21 at para. 34.



[41] Statistics Canada, Population by knowledge of official language, by Province and Territory(2006 Census), online: Statistics Canada <http://www.statcan.gc.ca/tables-tableaux/sum-som/l01/cst01/demo15-eng.htm>. Ontario’s 582,000 French-speaking residents comprise thelargest French-speaking community in Canada outside of Quebec. Statistics Canada,Francophone Population of Ontario (2006 Census), online: Ontario Office of FrancophoneAffairs <http://www.ofa.gov.on.ca/en/franco-06map-stat.html>. See also the Office forFrancophone Affairs, Francophones in Ontario, Francophone Population of Ontario, online:<http://www.ofa.gov.on.ca/en/franco-06map-stat.html>. The Office of Francophone Affairsdefines Ontario’s Francophone population as “those persons whose mother tongue is French,plus those whose mother tongue is neither French nor English but have a particularknowledge of French as an Official Language and use French at home”.

[42] For example, the individual may have to take another day off work and attempt to retain aFrench-speaking lawyer.

[43] This dilemma is discussed in Section 4.3.7.

[44] The Committee consulted with the Offices of the Chiefs, the Judicial AppointmentsAdvisory Committee, the Justices of the Peace Appointments Advisory Committee and otherlegal associations. The Committee’s methodology is described in Section 3.1.

[45] MAG informed the Committee that there are no reliable statistics relating to bilingualproceedings. While the CIMS is expected to track this important data, it remains unclear whenCIMS will begin to track statistics relating specifically to French proceedings. This data will notbe tracked in the first version of CIMS to be released in 2012.

[46] See e.g. DesRochers v. Canada (Industry), 2009 SCC 8, [2009] 1 S.C.R. 194 (in thecontext of the Official Languages Act, R.S.C. 1985, c. 31 (4th Supp)). Since 2006, theimportance of involving the French language community is taken into consideration withMAG’s Strategic Plan. This process brings together groups of stakeholders and managers towork together to improve access to justice.

[47] Using technology as a potential solution is explored further in Sections 4.3.3 and 4.3.6.

[48] Ontario, Ontario Public Service, OPS Framework for Action: A Modern Ontario PublicService (2006).

[49] The preamble of the FLSA states that “it is desirable to guarantee the use of the Frenchlanguage in institutions of the Legislature and the Government of Ontario, as provided in thisAct”.

[50] The 2006 OPS Framework for Action builds upon the concept of an active offer of service.

[51] Linda Cardinal, Nathalie Plante and Anik Sauvé, From Theory to Practice: Mechanismsfor the Offer of French Language Services in Ontario’s Justice Sector, vol. 2 (Ottawa:University of Ottawa, 2010).



[52] Ibid at 7.

[53] Ontario, Office of the French Language Services Commissioner, Annual Report 2009-2010: Open for Solutions, (Toronto: Office of the French Language Services Commissioner,2010) at 13-14.

[54] Ontario, Office of the French Language Services Commissioner, An Investigation Reportregarding an English-only H1N1 Flyer: From Communication Crash to Communication Coup,(Toronto: Office of the French Language Services Commissioner, 2011).

[55] Ibid. at 35.

[56] Supra note 12, at 36.

[57] Belende v. Patel, 2008 ONCA 148 at para. 24.

[58] See e.g. Nicol Simard “Le manque de juges bilingues continue à se faire ressentir”,L’Action (18 January 2006); Gérard Lévesque “Quand Toronto faisait partie du Québec”,L’Express (12 August 2008); “Une clinique d’aide juridique pour les personnes francophones àToronto”, Canadian Newcomer Magazine.

[59] Graham Fraser appeared before the House of Commons Standing Committee on OfficialLanguages in his capacity as Official Languages Commissioner on May 8, 2008. Canada,Commissariat aux langues officielles, Comparution devant le Comité permanent des languesofficielles de la Chambre des communes (Ottawa, 8 mai 2008), en ligne <http://www.ocol-clo.gc.ca/html/speech_discours_08052008_f.php>.

[60] The Committee’s methodology is described in Section 3.1.

[61] This information was provided by Chief Justice Heather Forster Smith, April 20, 2010, inresponse to a questionnaire administered by a private consultant on behalf of theCommissioner of Official Languages for Canada.

[62] Supra note 58.

[63] AJEFO’s membership is primarily made up of French-speaking lawyers working inOntario. There were 78 respondents to the survey.

[64] This unpublished survey was conducted in November and December 2010.

[65] Supra note 45.

[66] The cycles examined reflect the local reality in Sault Ste. Marie, Sudbury, Durham andWindsor.

[67] The Strategic Plan was undertaken in 2006, and renewed in 2011 for an additional fouryears. The participating justice sector ministries have accomplished several structuring andpromising actions within their divisions. The progress reports submitted during each annual



Francophone stakeholders meeting illustrate the efforts accomplished by each division tocarry out the guiding principles and the mission of the Strategic Plan. The stakeholders arenot only an integral part of the consultation process, but also in the implementation of severalprojects responding directly to the needs of the Francophone community. In March 2011,during the annual Francophone stakeholders meeting, the Justice Sector reiterated itscommitment to the Francophone community to continue this fruitful collaboration by renewingthe Strategic Plan – Phase 2, for an additional four years.

[68] The website is available in both official languages and provides court users withinformation about their rights to French language services in Ontario.

[69] This involves a bilingual signage standard that makes it easier for all court users to findtheir way around the courthouse.

[70] This is accomplished through the French Language Institute for ProfessionalDevelopment (FLIPD), lunch and learn sessions, mandatory training on French languageservices, as well as launching the French language services orientation package for all newemployees.

[71] Including partnering with bilingual colleges and universities to encourage interestedbilingual candidates to apply for designated bilingual positions in the courts.

[72] French language training is available for judges. For English-speaking judges, French asa second language tutoring is available through the Office of the Commissioner for FederalJudicial Affairs. For bilingual judges, there are courses in French one week per year inQuébec City and legal terminology training is available through the Office of theCommissioner for Federal Judicial Affairs. The Superior Court of Justice also has a mentoringprogram, but it is not specifically designed for bilingual judges.

[73] A one-week French language training course in Québec City has been reinstated forprovincial judicial appointees.

[74] Ontario Court of Justice, Justice of the Peace Education Plan, online:<http://www.ontariocourts.ca/jprc/en/education_plan.htm>.

[75] We understand that the Superior Court of Justice has commenced work on this importanttask.

[76] It was suggested that all newly appointed bilingual justices of the peace would benefitfrom being mentored by bilingual justices of the peace to share practical experience related tobilingual proceedings. Similarly, all three Ontario courts could ensure that there is a bilingualmentoring program where mentoring programs are already in place.

[77] Department of Justice, Access to Justice in Both Official Languages, Support Fund CaseStudies: Final Report (Ottawa: Department of Justice, 2011) at 82.



[78] In 1976, the first French language services program was established in the courts ofOntario: a bilingual provincial court, Criminal Division, was set up in Sudbury. The CJA wasamended to provide for bilingual proceedings in 1984 and the FLSA was enacted in 1986.

[79] The reverse may also be true. Kingston recently became the 25th designated area underthe FLSA. French-speaking court users may now access French language services at thecounter in Kingston, but they are still not entitled to a bilingual proceeding with a jury (as perthe CJA).

[80] Section 530.1 of the Criminal Code sets out a number of ancillary rights and obligationsthat apply when an order is made to allow an accused to stand trial in French.

[81] FLSA, s. 126(2)(7) (in non-Schedule 2 designated areas, a party may file pleadings andother documents written in French if the other parties consent).

[82] Ibid., s. 126(2)(6).

[83] Under s. 126(4) of the CJA a document filed by a party before a hearing in a proceedingin the Family Court of the Superior Court of Justice, the Ontario Court of Justice or the SmallClaims Court may be written in French.

[84] Supra note 83.

[85] Supra note 29.

[86] Ibid., ss. 11-14.

[87] Ibid., ss. 3-5.

[88] Section 532 of the Criminal Code provides that broader provincial legislative provisionstake precedence over language rights afforded under the Criminal Code.

[89] Nicholas Bala and Rachel Birnbaum, “Family litigants without lawyers” The LawyersWeekly (5 August, 2011), online: Lawyers Weekly <http://www.lawyersweekly.ca/index.php?section=article&articleid=1465>.

[90] For example, a complainant in Newmarket requested a French hearing. When heattended court, he was advised that since he spoke English he did not require Frenchlanguage services. A bilingual court clerk explained to the complainant that another datewould have to be chosen if he still wished to proceed with the hearing in French. Not wantingto take another day off work, the complainant agreed to proceed in English.

[91] In the Court of Appeal for Ontario, weeks where a bilingual panel is sitting frequentlyremain available for the scheduling of bilingual matters even where English only matters aregiven later hearing dates. The same is true of bilingual POA Courts in many regions.

[92] The dilemma faced by lawyers when advising clients about the right to proceed in Frenchis discussed further in Section 4.3.7.



[93] The impact of the judge’s leadership in setting the tone for the meaningful exercise ofFrench language rights is discussed further in Section 4.3.4. In an April 2011 endorsement, ajudge of the Superior Court of Justice in Peterborough stated that interpretation services arethe responsibility of the applicant, not of the court. The FLS Commissioner launched aninvestigation, and stated that citizens have a right to a bilingual trial in Ontario, whether theylive in a designated area or not. By contrast, in Belende v. Greenspoon and Lasman, 2004CanLII 5552 (ONCA), the appellant appeared before the Deputy Registrar on a motion tostrike the appeal. He made his submissions in French and an interpreter translated so that theRegistrar could understand. The court held that since the appellant’s Notice of Appeal wasfiled in French, he was deemed to have specified that all future hearings in the Court ofAppeal were to be presided over by a judge or officer who speaks French and English. TheRegistrar who heard the motion did not speak French, thus, the appellant’s right to proceed inFrench, pursuant to s. 126(3) of the CJA, was breached.

[94] Canada, Department of Justice, Environmental Scan: Access to Justice in Both OfficialLanguages, Final Report submitted to Justice Canada by GTA Research, online: Departmentof Justice <http://www.justice.gc.ca/eng/pi/franc/enviro/index.html>, chapter 10: Ontario.

[95] Ibid.

[96] Ibid.

[97]_ Clear notification of French language rights exists in some, but not all, court documents.

[98]_ This practice is already in place in some areas of the province, including Sudbury.

[99]_ This information form was developed as part of Ontario’s Justice on Target strategy toreduce delays in Ontario’s criminal courts.

[100] Law Commission of Ontario, POA Interim Report Press Release, online:<http://www.lco-cdo.org/en/provincial-offences-interim-report-press-release>.

[101] Supra note 29.

[102] Supra note 12 at 35-37. In 2009 and 2010 there was an average of 5 complaintsreceived each year.

[103] Ibid.

[104] Ontario MAG, Provincial Offences Act: What is the Provincial Offences Act? online:Ontario MAG <http://www.attorneygeneral.jus.gov.on.ca/english/justice-ont/french_language_services/rights/provincial_offences_act.asp>.

[105] POA Courts administer many regulatory proceedings, including traffic matters under theHighway Traffic Act, R.S.O. 1990, c. H.8, insurance issues, alcohol-related and trespassingoffences, violations under the Occupational Health and Safety Act, R.S.O. 1990, c. O.1, andthe Environmental Protection Act, R.S.O. 1990, c. E.19, and municipal by-law violations.




[107] Supra note 6, ss. 1, 14.

[108] A parking infraction notice must be delivered in French and English only if themunicipality is in a designated area and has passed a bylaw adopting the provisions of theFLSA.

[109] On January 25, 2011, MAG provided the Committee with a list of formal complaintsreceived in 2009 and 2010. Ten related to the POA. The unavailability of a justice of the peacemay well be the result of a scheduling error committed by municipal court staff.

[110] In Ottawa, a complainant, who had filled out the “Notice of Intention to Appear” form inFrench, arrived to discover that while the provincial prosecutor was bilingual, the justice of thepeace was a unilingual English speaker. Not wanting to adjourn, the complainant was forcedto proceed in English. As noted in Section 4.3.2, the delay in obtaining a French trial has, insome cases, had the effect of encouraging people who may or may not be able to speakFrench, to request a French trial in the hope that the prosecution will be jeopardized becauseof delay.


[112] A complainant in Toronto requested a court appearance in French, however, the “Noticeof Trial” was sent in English. The complainant called the CSD French telephone line but suchline was not answered. As a result, the complainant was forced to speak to an employee inEnglish. In a separate case, a complainant in Toronto filled out a “Notice of Intention toAppear” form in French only to receive a “Notice of Trial” in English. When the complainantwent to the Toronto North court, the complainant was told that French language services werenot available at that location. The trial was consequently adjourned and the complainant wasreferred to another court. In a similar incident at the Caledon court, a complainant filled out the“Notice of Intention to Appear” form in French. However, the complainant received a “Notice ofTrial” in English. Upon attending the Caledon courthouse, the complainant found that both thejustice of peace and the Crown counsel were not bilingual. As a result, the trial had to beadjourned.

[113] In many areas, even though an individual is entitled to a bilingual trial pursuant to theprovisions of the CJA, the individual will not necessarily receive French language services,including counter services, prior to the actual trial. This was the experience of a complainant inLindsay, a non-designated area under the FLSA, who received written information regardingbilingual proceedings but could not obtain answers to her inquiries in French when shetelephoned the number provided in the information document.

[114] Law Commission of Ontario, Modernization of the Provincial Offences Act: A NewFramework and Other Reforms – Final Report, (Toronto: Law Commission of Ontario, 2011).

[115] Ibid. at 138.



[116] For example, a section could be added to forms used by all law enforcement officersnotifying individuals of their right to bilingual proceedings, similar to the one included in the“Notice of Intention to Appear” form.

[117] The provincial system <www.paietickets.ca> is available in both languages. However,not all municipal court offices offer this service. For example, the City of Toronto online parkinginfraction payment system is available only in English.

[118] Supra note 114 at 137. Recommendation 39, addressed to MAG (or the bodyresponsible for developing the newly updated POA procedural code) suggests a need to“review the use of telephone and videoconference hearings…for their effectiveness, fairnessand efficiency and recommend any improvements as it may deem appropriate.”

[119] Currently, s. 8 of Ontario Regulation 949, R.R.O. 1990, Parking Infractions, under thePOA, stipulates that forms used in cases under the regulation are available in English orFrench, or both. The municipality can opt for the language of its choice in managing thesetypes of offences. In some municipalities, clients are only notified of their French languagerights if they want to dispute the parking infraction and they become involved in some part ofthe judicial process administered by the municipal courts under the CJA.


[121] See the discussion of delay, additional cost, and inferior service in Section 4.3.2.

[122] Absent exceptional circumstances, the Committee is of the view that language trainingafter appointment should not be relied on to turn a unilingual judge or justice of the peace intoa bilingual judge or justice of the peace.

[123] Under s. 530(1) of the Criminal Code sets out the right to be tried before a justice of thepeace, provincial court judge, judge or judge and jury, who speaks the official language ofCanada that is the language of the accused or, if the circumstances warrant, who speak bothofficial languages of Canada.

[124] Under s. 126(2)(1) of the CJA, the right is established to hearings that shall be presidedover by a judge or officer who speaks English and French.

[125] It is important to recognize that different proceedings require different levels of Frenchlanguage ability. For example, the language ability required to preside over a trial is far greaterthan the ability needed to review written submissions.

[126] These standards represent the highest level of French language proficiency required indesignated bilingual positions within the provincial and federal public service. For a detaileddescription of these standards see: <http://www.bonjour-hello.ca/DATA/ON/MEDIA/Description_Proficiency_Levels_Ontario.pdf> (Government ofOntario) and <http://www.tbs-sct.gc.ca/gui/squn03-eng.asp> (Government of Canada).



[127] At the Ontario Court of Justice, there are currently 32 full-time and four per diembilingual justices of the peace out of a total of 398 justice of the peace positions. See theAppendix for the bilingual judicial statistics of the other levels of court.


[129] A provincially certified evaluator assesses the candidate’s oral proficiency during theinterview process and provides an opinion on the candidate’s written proficiency.

[130] For example, in the Northeast and East regions, the Judicial Advisory AppointmentsCommittee informally consults with members of the Bar and Bench to determine the Frenchlanguage abilities of a prospective candidate for appointment to a bilingual judge position.

[131] Part of the problem is that reliable statistics are not available, supra note 45.

[132] In 2008 approximately 150 matters were heard in French at the Superior Court ofJustice out of a total of approximately 200,000 proceedings initiated, supra note 61. Thenumber of bilingual hearings does not accord with the total French-speaking population (fiveper cent of Ontario’s population). See the definition of Francophone, supra note 40.

[133] For example, in a centre with one bilingual judge, if that judge becomes ill or discovers apersonal conflict of interest in respect of a matter close to the date of the proceeding,replacing them frequently causes delay. Further, if there is a bilingual motion in an outlyingcentre without a bilingual judge, a bilingual judge will be sent to hear the matter and willusually stay for an entire week, even if the bilingual matter lasts less than half a day. For theremainder of the week, that bilingual judge is unlikely to be available to be redeployed toanother area of the province. Justices of the Peace are required to work in variouscourthouses and therefore, if assigned to a POA Court, will not be in the same building wherecriminal matters are being heard, though they may be in the city itself. Additionally, many ofthe matters dealt with by a Justice of the Peace are not pre-scheduled (for example, suretyapplications, overnight detainees held for bail, and applications under the Mental Health Act,R.S.O. 1990, c. M.7), thus a bilingual Justice of the Peace cannot be assigned and may notbe available at the last minute.

[134] There may be unique regional factors that should to be taken into account. For example,a number of communities located along the highway 401 corridor between Windsor andMontreal are predominately English-speaking. However, many people travelling to and fromQuebec, including a significant proportion of people who speak only French, pass throughthese communities and encounter the court system, particularly in relation to Highway TrafficAct violations.

[135] Supra note 94, at Chapter 10.

[136] Canada, Office of the Commissioner of Official Languages, Final Investigation Report onthe Institutional Bilingual Capacity of the Judiciary for the Superior Courts in Nova Scotia andOntario, 2011 at 16.



[137] French language services are now an integral part of each ministry’s annual Results-based Plan which includes specific performance measures on designated bilingual positions.Submissions are reviewed and signed off by the Deputy Attorney General, then forwarded tothe Treasury Board for evaluation and comment. These submissions reflect directly on theMinistry’s overall performance.

[138] Human resources practices relating to designated bilingual positions have apparentlybeen inconsistent across the Ontario Public Service according to the FLS Commissioner who,in his 2008-2009 annual report, supra note 12, at 21, recommended that a mandatory policyon human resources for French language services be developed to help the Government ofOntario meet the legal requirements of the FLSA and to ensure the delivery of quality servicesin French across government departments. In response to this recommendation the Office ofFrancophone Affairs, in partnership with the Human Resources Management and CorporatePolicy Division of HROntario, has clarified policy direction on the designation, staffing and de-designation of bilingual positions in the Ontario Public Service. This policy direction waseffective in June 2011. It does not bring substantive changes to existing guidelines ondesignated bilingual positions, but it ensures a coherent approach across the Ontario PublicService.

[139] The Coordinator of French language services is an internal justice sector resource.

[140] Each region is managed by a Director of Court Operations who reports to the AssistantDeputy Attorney General of the CSD. Supervisors of Court Operations generally report to theManagers of Court Operations, who in turn report to the Director of Court Operations.

[141]For example, the dates for bilingual appeal weeks are fixed in advance and slots are heldopen to accommodate French language appeals, even when this means that some Englishhearings are scheduled for later dates. As a result of this procedure French hearings in somecases will be scheduled sooner than English hearings, in other cases French hearings will bescheduled later than English hearings. The Court of Appeal for Ontario also provides for adhoc bilingual panels to be struck where an urgent issue arises.

[142] For example, Justice Ontario is an online portal to the justice system that includes: (i)easy-to-use information on family law, criminal law, lawsuits and disputes, human rights,estate planning and tickets and fines; (ii) easy access to legal resources such as lawyerreferral services and family law information centres; and (iii) toll-free telephone access to thesame information in 173 languages.

[143] Currently 11 divisions are taking part in the Strategic Plan. Under MAG these include:CSD, Criminal Law Division, Legal Aid Ontario, and Victim and Vulnerable Persons Division(Office of the Public Guardian and Trustee and Office of the Children’s lawyer). Under theMinistry of Community Safety and Correctional Services these include: Ontario ProvincialPolice, Emergency Management Ontario, Correctional Services Division (InstitutionalCommunity Services), and Ontario Police College and Ontario Fire College.



[144] The information, developed in collaboration with French-speaking stakeholders,includes: (i) specific French language services content to inform French speakers about theirrights to services in French under various pieces of legislation; (ii) a list of resourcesdescribing where to obtain services in French; (iii) information on French-speaking statistics(compiled by the University of Ottawa in the context of an environmental scan); and (iv) linksto justice sector stakeholder websites.

[145] These training initiatives include: Pour l’amour du français, French Lunch Hour Forum,Long Distance Training, “French language services and You” Video, The French LanguageServices Orientation Package, French Language Services Integration Checklist, Aide-mémoire, and The Toolbox - Providing Services in French.

[146] PRA Inc., Canada-Wide Analysis of Official Language Training Needs in the Area ofJustice (submitted to the Department of Justice, March 31, 2009), online: Department ofJustice < http://www.justice.gc.ca/eng/pi/pb-dgp/ana_ol-ana_lo/final_report_en.pdf> at 36.

[147] The project was coordinated by the OCFLS in collaboration with MAG’s Criminal LawDivision and AJEFO.

[148] The Committee is aware of several complaints from French speakers about incorrect ormissing bilingual signs. In October 2011, a media article stated that MAG signs at theBurlington courthouse did not have any French accents. The article also indicated that thesigns inside the Small Claims Court say there are only “court rooms”, no ‘salles d’audience’.See Gérard Lévesque, « Pour mettre les accents là où il le faut… » L’Express (11 October,2011).

[149] Law Society of Upper Canada, Rules of Professional Conduct, (Toronto: Law Society ofUpper Canada, 2000).

[150] The French Common Law program at the University of Ottawa is a notable exception.

[151] The Law Society and AJEFO have together developed a brochure entitled “Vous avezun client ou une cliente qui parle français – You have clients who speak French” aimed ateducating the bar about these rights. More such initiatives would be desirable.

[152] Rule 2.02.

[153] In some cases a French-speaking accused may still wish to exercise the right to aFrench, or bilingual trial even though his or her lawyer cannot speak French. For example, theaccused may choose to testify and prefer to be understood, without translation, by the judgeor judge and jury.

[154] In addition, the AJEFO will attempt to find a French-speaking practitioner outside its ownlist if a member of the public makes an inquiry.

[155] Since the number of bilingual lawyers in Ontario is limited, and the French-speakingpopulation is spread over an expansive geographic area, it is likely that French speakers in



many areas of the province have difficulty retaining a bilingual lawyer to handle their civil orcriminal matter.

[156] There are 77 independent community legal clinics in Ontario.

[157] Designation of Public Service Agencies, supra note 35.

[158] Advice telephone lines are available in Eastern Ontario, Northern Ontario and parts ofCentral Ontario, the Greater Toronto Area, and the South-west region.

[159] R.S.O. 1990, c. L.8.

[160] Ibid, s. 4.2(2).

[161] For example, in 2007 the Carrières en justice site, www.carrieresenjustice.ca waslaunched by the AJEFO. This project is aimed at the sustainability of French languageservices. Specifically, it aims to make French-speaking students aware of how the justicesystem works, and stimulate their interest in various careers in the justice system.

[162] Note that the Superior Court of Justice reported a complement of 52 bilingual judges in2008, supra note 61. This statistic included a breakdown of each bilingual judge’s self-identified ability to hear matters in French. A similar breakdown based on ability was notavailable for the 2011 statistic.

[163] This number includes supernumerary judges.

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