PART 1

Bilingual proceedings: key procedures for access to justice

In Ontario, English and French are the official languages of the courts in accordance with subsection 125(1) of the Courts of Justice Act (CJA). Even if all parties to a proceeding speak French, the proceeding is considered bilingual because of the provisions of the CJA allowing for the use of both languages. Documents and pleadings filed by a party may be drafted in French. A translation may also be provided by the court upon request, as provided for in section 126 of the CJA.

Effects of bilingual proceedings

Once a party requests bilingual proceedings, this right extends to all hearings associated with the case, unless otherwise specified. The rules in subsection 126(4) of the CJA apply, including:

1. The hearings specified by the party are presided over by a bilingual court officer.
2. The jury is made up of people who speak French and English in designated areas.
3. Testimonies and observations are received, recorded and transcribed in the language in which they are given.
4. The court provides interpretation services during hearings and out-of-court examinations as necessary.
5. The reasons for a decision may be written in either language, with translation available on request.

The obligation to offer legal services in French

Bilingual proceedings are part of the much broader context of access to services in French. The Ministry of the Attorney General is committed to providing quality services in French, as are government administrative tribunals, including those that are part of Tribunals Ontario. The French Language Services Act guarantees the right to receive services in French in certain designated areas. In accordance with their Rules of Professional Conduct, lawyers must inform their clients of their language rights, including the right to be represented in the language of their choice. Legal services in French are also available through the Law Society Referral Service and Legal Aid Ontario’s Francophone legal advice lines. Steps to Justice also offers bilingual legal assistance online. Under Rule 4.02.1 of the Ontario Rules of Civil Procedure, documents written in French may also include an English version, under section 126 of the CJA.

Help your clients apply

The Bilingual Proceedings regulation governs the procedures for filing documents in French and applying for bilingual proceedings in Ontario courts as follows:

1. Filing first document in French: If the first document that is filed by a party is written in French, the party is deemed to have exercised the right to require that the proceeding be conducted as a bilingual proceeding and to have specified that future hearings will be presided over by an officer who speaks English and French.[1]
2. Defendants in provincial offences proceedings: If a defendant who is served with an offence notice requests that the trial be held in French, the defendant is deemed to have required that the proceeding be conducted as a bilingual proceeding and to have specified that future hearings will be presided over by a bilingual officer.[2]
3. Requisition or statement: A party can request that the proceeding be conducted as a bilingual proceeding by filing a requisition or a statement with the court clerk. Such a requisition or statement must specify that future hearings will be presided over by a bilingual officer. A copy must be served to every other party in the proceedings.

Keep an eye on deadlines

Deadlines for filing a request for bilingual proceedings vary depending on the type of procedure. In general, documents must be filed at least seven days before the first scheduled hearing. For motions, they must be filed when the motion is filed, while for trials under the Provincial Offences Act (POA), they may be filed when the trial date is set or when the defendant gives notice of their intention to appear.

If the deadline has passed, the court may authorize late filing on motion. An oral statement expressing the wish for bilingual proceedings may also be made before the court during an appearance.

Overall, it is clear that this approach recognizes and values the linguistic diversity of Ontario’s population, promoting fairness and equity for everyone, regardless of their language of choice.

PART 2

Justice in French in a criminal law context

The principle of the right to a trial in French is established throughout Canada, particularly in public and criminal law. Under subsection 530 (3) of the Criminal Code, the accused must be informed of these language rights on first appearance, and the judge or justice of the peace must ensure that this is done, as well as the time limit for requesting a trial before a French-speaking or bilingual court. This right also extends to offences under other federal laws, such as those related to shipping or drugs. However, the language rights set out in the Criminal Code apply only to trials and preliminary enquiries, and not to other types of criminal hearings such as bail hearings, first appearances, or guilty pleas. In addition, a French-speaking accused does not automatically have the right to receive disclosure in French.

An accused may apply

Under subsection 530 (1) of the Criminal Code, an accused may request a trial in French at his or her first appearance or at any time before certain key stages of the proceedings. If this application is made within the specified time, the court must order a trial in French. However, if the application is made late, the court has the discretion to make an order requiring a trial in French or in both official languages. The consequences of such an order include the right of the accused and their lawyer to use either official language at the preliminary enquiry and trial, and the right of witnesses to testify in the official language of their choice. In addition, the judge may authorize the prosecutor to question a witness in his or her official language, even if it is different from that of the accused. The accused also has the right to be understood in the official language of the court and to have the written judgment made available in his or her official language.

Where an accused so requests, the Crown is required to have the information or indictment translated into the official language of the accused and to provide them with a written copy as soon as possible.

The principle of the right to a trial in French before a provincial or territorial court is established, where the province permits. The CJA grants several rights, including:

1. The possibility of bilingual proceedings anywhere in Ontario in family law, civil law and Provincial Offences Act (POA) cases.
2. The right to file written documents in French in all Ontario courts.
3. The right to request a translation of any document filed, from French to English or from English to French.

Other relevant rules

a)Bilingual proceedings—subsection 530 (6) of the Criminal Code

In bilingual criminal law proceedings, if two or more accused speak different official languages, a bilingual trial may be justified. Preliminary enquiry and trial records must contain all documentary evidence in the language in which it was presented, with a full transcript of the proceedings and their interpretation into the other official language.

b)Record of proceedings

In criminal cases, if an accused asserts that French is his or her official language, the Crown must prove the contrary. Witnesses may testify in the language of their choice, and the transcript of the interpretation should be included in the record. If the accused waives his or her right to an interpreter, this must be done unambiguously and by the accused himself or herself.[3]

c)Practical considerations in criminal matters

As for disclosure, the Crown is under no obligation to translate documents unless a court order so stipulates.[4] The accused may request the translation of documents to ensure a fair trial, but the burden of proof rests with the accused.

As regards the filing of documents in French, rules vary depending on the type of case and the court. In general, parties may file documents in French in civil and family cases, including before the Superior Court of Justice and the Small Claims Court.