Access to justice in French has been a priority issue for the Office of the Commissioner of French Language Services since it was created in 2007. There may be some who are tempted to think this is because I am a lawyer myself. Certainly, as a lawyer, I am interested in all aspects of the judicial system. But most importantly, as the Commissioner, it is my job to ensure that French-speaking Ontarians obtain the services in French to which they are entitled, in particular in the justice sector. After all, that is my mandate. I agree that the “justice sector” is a very broad field. For a number of years, however, I have made the delivery of services to vulnerable populations a special cause of mine, and so obviously I pay particular attention to how they are served in the judicial system.

We have to understand how badly the gaps in services provided in French can impact French speakers in the courts. It is hard enough to navigate the labyrinthine justice system, so imagine what it would be like if you had to do it in a language in which you do not know the procedural and bureaucratic vocabulary. This is why it is so important to have access to French-speaking lawyers, or at least bilingual lawyers. There should also be bilingual capacity in the judiciary, but we will focus in this article on the members of the bar.

Lawyers have a crucial role to play in the ability of French-speaking litigants to obtain equal access to justice. What do we mean by “equal access”? The following definition is given in the report Access to justice in French released by the French Language Services Bench and Bar Advisory Committee in 2012: the French linguistic community has the right to receive services in French, in a timely way, and in a manner that does not result in greater cost than for those who receive such services in English.[1]

In the report, the Committee reaches a threefold conclusion concerning the legal profession: 1. lawyers must be able to inform the public about their language rights in the judicial system; 2. there must be enough bilingual lawyers to meet the representation needs of French speakers; and 3. French-speaking litigants must have easy access to those lawyers.

The report pointed out that there is inadequate coordination with the legal profession in the delivery of bilingual and French proceedings.[2] It therefore suggested that major efforts be made to educate lawyers, even bilingual lawyers, about language rights, and proposed that their knowledge of language rights be assessed proactively, in order to improve the accessibility and offer of services in French.

To achieve this, the Committee recommended that there be cooperation from three sides: the Law Society of Upper Canada, law schools and Legal Aid Ontario. As the regulatory body for the legal profession (whose rules of professional conduct clearly state that lawyers are required to advise their clients of their rights to have French used in the handling of their cases, we would note), the Law Society could include knowledge of language rights as a criterion for licensing and include training about language rights in its continuing education programs. Law schools could reorganize their curricula to incorporate training about language rights and specialized instruction in French. Legal Aid Ontario, an organization that plays a key role in access to justice in the province, in particular through its legal clinics and duty counsel in the courts, could review the availability and delivery of its own services in French and work with the other actors in the judicial system to support the active offer of information about language rights for litigants, identification of French-speaking lawyers in the province and facilitating access to those bilingual professionals by French-speaking litigants.

Gaps in the offer of services in French can affect French-speaking litigants to a degree that we do not necessarily suspect. Even today, there are too many accused persons who do not know, before their first appearance before the court, that they are entitled to a trial in French.

As I said at the outset, gaps in the offer of services in French can affect French-speaking litigants to a degree that we do not necessarily suspect. Even today, there are too many accused persons who do not know, before their first appearance before the court, that they are entitled to a trial in French. The fact is that the Criminal Code describes the language rights of the accused and expressly gives the accused the fundamental right to be tried in his or her official language, as long as he or she so requests within the prescribed time.[3] Another conclusion in the 2012 Report was that proceeding in French can be difficult, time-consuming and expensive.[4] A number of French-speaking lawyers told the Committee that they feel they have to inform their French-speaking clients that proceeding in French could have adverse consequences, in particular in the form of additional delays and expense.[5] I understand. But this is neither reasonable nor desirable, especially when there is meant to be equal access. The Office of the Commissioner regularly receives complaints relating to access to justice that are distressing for employees, who have seen other such complaints.

The foreword to my last annual report told the story of a situation experienced by Ms. Tremblay (a fictitious name) that involved a number of areas (healthcare, children’s aid, municipal services and the justice system, among others). I would like to quote an excerpt from her diary that we published in the report:

… Finally, it’s the day of the hearing. The lawyer assigned to me by the CAS speaks only English. Same with the social worker. At least the judge speaks French.

As recommended, I find myself a bilingual lawyer. My doctor, even though he’s a Francophone, sends her a letter in English attesting that I am fit to go ahead with the legal proceedings. She then asks me to translate all the statements I’ve made so far. It will be easier to do it in English, she says. I gave in – I have to pick my battles: my son’s safety rather than my language. …[6]

Situations like this are not rare: family tragedies, divorces, evictions, immigration problems, and so on. Cases that are already difficult are complicated by the fact that services in French are not available or are inadequate. It must be understood that all these problems are not the fault of the lawyers and cannot be solved by lawyers alone. The judicial system is an enormous and complex one. Litigants sometimes have to deal with more than one department. It is my opinion, however, that within that intimidating labyrinth, lawyers, including French-speaking and bilingual lawyers, could be making a little more effort to support their clients. And all lawyers would do well to remember their own rules of conduct as they relate to French-speaking clients.

Has the 2012 Report, which was published nearly four years ago, had a tangible impact on the offer of services in French in Ontario’s judicial system? Enhancing Access to Justice in French: A Response to the Access to Justice in French Report, the report published last September (the “2015 Report”), provides an overview of progress achieved in relation to bilingualism as implemented by the judiciary, lawyers and government officials since the publication of the 2012 Report. Once again, we will address the aspects that relate specifically to the legal profession here. The 2015 Report points out that various actors—for example, the Association des juristes d’expression française de l’Ontario and the University of Ottawa Faculty of Law—have taken steps to enhance access to bilingual or French-speaking lawyers. It also notes that the Law Society of Upper Canada has adopted methods for providing internal services in both official languages. And the Law Society has signed the National Mobility Agreement with Quebec to authorize Quebec lawyers to provide legal services in French in Ontario. This somewhat controversial measure, which I welcome, I would note, may succeed in enhancing the offer of legal services in French, at least in areas located near the border with Quebec.

I would also highlight the pilot project that was created by the Ministry of the Attorney General to facilitate access to services in French at the Ottawa courthouse. That project, which was launched in the spring of 2015, involves responding, in French, to users of the justice system in the capital from beginning to end of the judicial process, without them having to remind anyone of their right to those services in French. This initiative stems from a recommendation I made in my 2013-2014 annual report, and I am very pleased with it. However, while I do hope that this project will provide a real boost for services in French in the justice sector, it must be admitted that it would have been desirable for it to be implemented in more than one region (including non-designated regions) simultaneously, to take into account the diversity of rural and urban communities. But the project is an opportunity to see what an equitable justice system for French speakers in minority communities looks like, and in particular to adopt a roadmap for making it a reality. In that sense, it is a step in the right direction. It seems to me that both French speakers and the various actors in the system can only benefit from it.

In spite of the fact that the Office of the Commissioner receives numerous complaints, year in and year out, relating to the role lawyers play in access to justice in French, I am proud of the close and positive relationship we maintain with actors in the justice system, obviously including lawyers. I would like to take this opportunity to point out that you can enhance the offer of services in French by contacting my office when you observe a breakdown in the delivery of those services. Anyone can make a complaint to the Office of the Commissioner, in complete confidence; that is the only way we can investigate and improve outcomes for our fellow Ontarians. This is not whistle-blowing; rather, it is wanting to work proactively together. When we attempt to remedy the failures we witness, we don’t allow them to accumulate to the point that a systemic remedy is needed.

I can never say often enough how essential the role lawyers play is for access to justice in French in Ontario, and I hope to have the good fortune to work closely with justice sector actors over the coming months and years, to support the profession in its efforts to plead this noble cause.

About the Author

Mr. François Boileau is currently pursuing his third mandate as the French Language Services Commissioner of Ontario. His role is to receive complaints from members of the public and present recommendations regarding the application of the French Language Services Act.

Prior to beginning his mandate as Commissioner in August 2007, Mr. Boileau acted as legal counsel for the Office of the Commissioner of Official Languages where he defended landmark cases before the Supreme Court of Canada.

He also played a key role in defending French-language rights by representing the Fédération des communautés francophones et acadienne du Canada (FCFA) in the Montfort case before the Ontario Court of Appeal.

In 2011, François Boileau was awarded the Order of Merit of the Association des juristes d’expression française de l’Ontario (AJEFO). In 2015, he received the Order of Merit of the Civil law section from the Faculty of law of the University of Ottawa.