Environmental Scan: Access to Justice in Both Official Languages

Chapter 10: Ontario

Structure of the Judicial System

Judicature

Superior Courts

The Ontario Courts of Justice Act[70] establishes a superior court of record called the Court of Appeal for Ontario which hears appeals from judgments of the Divisional Court and the Superior Court of Justice, except for orders of the latter Court where an appeal lies to the Divisional Court. The judges of the Court of Appeal are, by virtue of their office, judges of the Superior Court of Justice. [reversed in the original French text - Tr.]

The Courts of Justice Act also establishes a superior court of record called the Superior Court of Justice, which has general jurisdiction in civil and criminal matters.

The Courts of Justice Act creates a branch of the Superior Court of Justice called the Family Court. The Family Court is a unified (superior and provincial) court with jurisdiction in family law matters[71] but only in certain municipalities.[72] The judges of the Superior Court of Justice are also judges of the Family Court.

The Courts of Justice Act establishes a branch of the Superior Court of Justice called the Small Claims Court. Every judge of the Superior Court of Justice is a judge of the Small Claims Court, and cases are heard by one of those judges. An appeal lies to the Divisional Court from an order for the payment of money in excess of $500.

The Courts of Justice Act also establishes the Divisional Court, which has jurisdiction to hear certain appeal from judgments of the Superior Court of Justice, including orders for a single payment of not more than $25,000, or dismissing a claim for not more than that amount.

Provincial Courts

The Courts of Justice Act establishes a court of record called the Ontario Court of Justice to which is essentially conveyed the criminal and quasi-criminal jurisdiction of the province, and certain family law functions where the Family Court does not have jurisdiction.[73] The Ontario Court of Justice is also designated as the youth court for the purposes of the Young Offenders Act (Canada).[74]

Constitutional Obligations

There is no constitutional obligation to provide services in French in Ontario.

Provincial Legislation

The Courts of Justice Act provides that the official languages of the courts of Ontario are English and French and that hearings shall be conducted in English or as a bilingual proceeding. This essentially means that a party to a proceeding has the right to have a bilingual judge, and the right to present testimony and make submissions in French. In addition, a party has a right to a bilingual jury and the right to file documents written in French in the following regions:[75]

Ontario Regulation 53/01, which was made under the Courts of Justice Act and has been in force since June 1, 2001, protects the right to bilingual proceedings in four ways:[76]

In addition, the French Language Services Act[77] guarantees services in French and protects the right to use French in the Legislature, any head or central office of a government agency, and regional government offices in certain designated areas. However, those obligations are subject to such limits as circumstances make reasonable and necessary.

Profile of the Francophone Community[78]

Demographics

The population of Ontario is largely anglophone. Of the province's 10,642,790 inhabitants, 72% have English as their mother tongue. Francophones make up 4.7% of the total population, and other language groups nearly 24%, according to the 1996 census.

The number of people with French as their mother tongue rose from 341,502 in 1951 to 499,689 in 1996. There was a rapid increase between 1951 and 1971, a time when, drawn in large numbers to Ontario, francophones from all over Eastern Canada, particularly Quebec, moved into the province. They helped consolidate a large Franco-Ontarian institutional network, both in large cities and small towns. The number of francophones has been relatively stable since 1971 at about 500,000.

Geography

There are francophones living in all parts of Ontario. The greatest concentration of Franco-Ontarians is in eastern Ontario, where more than 200,000 persons with French as their mother tongue are concentrated in three census divisions: Ottawa-Carleton, Prescott-Russell and Stormont, Dundas and Glengarry. Northern Ontario, with almost 150,000 Franco-Ontarians - a little more than a quarter of the total - has the second largest contingent of francophones. Central Ontario, that is metro Toronto and the surrounding urban centres, has slightly fewer - about 110,000. One francophone in five now lives in this region which increasingly counterbalances the East and the North where francophones have traditionally been more numerous. Slightly more than 40,000 Franco-Ontarians are found in the South and the West.

The number of francophones varies widely from one region to another. A quarter of Ontarians in the Northeast are francophones, a situation that encourages the use of French in everyday settings. In the East, the overall proportion of Franco-Ontarians is a little less than 15%, but francophones are quite concentrated in various communities. The region is the seat of the federal government and it has very close ties with neighbouring Quebec. The Franco-Ontarian community in the East has access to a wide range of institutions and this contributes to the vitality of French not only at the regional level but also throughout all of francophone Ontario. Despite their numbers, francophones in the central region account for only 1.6% of the total population. Spread throughout a number of communities, they do not constitute cohesive communities and live essentially in English.

Economy

There is a significant Caisse Populaire and cooperative movement in Ontario as well as a Francophone Economic Council that brings together several businesspersons' associations. These are important economic development tools for Ontario francophones. There is a relatively large number of francophone entrepreneurs who are members of associations.

Education

There are twelve French-language school boards in Ontario. There are three hundred and fifty-eight elementary and secondary French-language schools, with more than 120,000 pupils registered in French-language schools and 122,000 in French immersion classes. In addition, Ontario has two bilingual universities (Laurentian and Ottawa) and two bilingual university colleges (Glendon and Hearst) serving approximately 10,000 students. There are also an agro-food college (Alfred), and three francophone applied arts and technology colleges (La Cité collégiale, Collège Boréal and Collège des Grands Lacs) serving approximately 5,400 students.

Voluntary Sector

The Association canadienne-française de l'Ontario (ACFO) is the main organization representing the interests of francophones and speaks for 21 regional branches and 25 affiliated associations. Since the adoption of Bill 8 on French-language services (1986), the establishment of French-language colleges and universities, the promotion of the francophone community of Ontario, the development of media infrastructure, and the vitality of the Franco-Ontarian community and young children are among ACFO's priorities.

Profile of Respondents

Of the 500 members of the Association des juristes d'expression française de l'Ontario (AJEFO) whom we contacted, 83 responded to the survey. This represents a response rate of 17%.

The questionnaire consisted mainly of closed questions amenable to quantitative analysis. The framework for our analysis is organized on the basis of the 83 people who responded to the survey, and more specifically the 71 lawyers in private practice. Those people will be referred to either as all respondents (lawyers, judges, officials, Crown counsel, translators and interpreters, and others) or lawyers, depending on the case.

In addition to this data collection tool, we conducted telephone interviews with other respondents in Ontario using more semi-open and open questions: four court officers, one Crown counsel, two judges, one representative of the provincial Ministry and one representative of AJEFO. As well, we held a focus group that brought together members of the AJEFs from a number of provinces including two from Ontario. The comments made by those participants have been included after the quantitative analysis of the various sections, under the heading "Views of other actors in the judicial system". They qualify some of the data collected, support other data and raise some questions. To preserve the anonymity of the respondents and the confidentiality of their responses, we will consider the qualitative data they provided us with as a single unit.

Occupational Distribution of Respondents

Of the 83 survey respondents, 71, representing 87% of the respondents, identified themselves as lawyers. The categories other than lawyer, altogether, represent 14% of the on-line survey respondents. They include a judge, a prosecutor, three officials and six respondents working in other areas of the law. One person did not identify his or her occupation.

A majority of the quantitative analysis is based on the cohort of lawyers who responded to the survey. A number of factors explain this approach. First, the lawyers comprise the largest segment of members of AJEFs. Second, they offer front-line services to persons appearing before the courts. However, where it is relevant, we will also provide data concerning the survey respondents as a whole.

Regional Distribution of Respondents and Lawyers

The respondents were asked to identify the judicial district in which they usually practise. This question was used to associate them with a judicial district, and then with a region.

For the purposes of the analysis, we divided the judicial districts into larger regions, using the following categories: Northern Ontario, Eastern Ontario, Ottawa, Central Ontario and Southern Ontario. We included both Northeastern and Northwestern Ontario in Northern Ontario, since the response rate was too low in Northwestern Ontario. As well, as AJEFO does, we distinguished between Ottawa and Eastern Ontario, given that the former is urban and the latter is generally more rural.

One part of the analysis reflects the distinctions among the regions. However, we were unable to do this for the analysis as a whole, because in several instances the numbers were too small. This was the case for the barriers to access to justice in French in the various areas of the law under federal jurisdiction (criminal law, bankruptcy law, law of divorce and support).

That being said, Table 10.1 shows the breakdown of all respondents, and then the lawyers are divided into regions.[79] For all respondents, we find 15 (19%) in Northern Ontario, six (8%) in Eastern Ontario, 32 (41%) in Ottawa, 17 (22%) in Central Ontario, and five (6%) in Southern Ontario. For the lawyers, there are 14 (20%) in Northern Ontario, six (9%) in Eastern Ontario, 29 (41%) in Ottawa, 16 (23%) in Central Ontario and four (6%) in Southern Ontario. As may be seen, there are very similar proportions of respondents in all the regions, for both all respondents to the survey and for lawyers alone.

Mother Tongue and Language of Work of Lawyers

As Table 10.2 illustrates, 55 out of the 71 lawyers who are members of AJEFO and who responded to the survey (77%) have French as their mother tongue, and 15 out of 71 (21%) have English as their mother tongue.

Of the 55 lawyers who have French as their mother tongue, 45 (82%) work in French and English, eight (15%) work in English and two (4%) work in French. Of the 15 lawyers who have English as their mother tongue, nine (60%) work in French and English.

The proportion of lawyers who have English as their mother tongue who work in both official languages seems high. However, we note that our sample of respondents is taken from the list of lawyers who are members of the Association des juristes d'expression française. Accordingly, we might hypothesize that these individuals are, if not francophones, at least francophiles, and sufficiently bilingual to be able to work not only in English, but also in French.

Thus, 82% of lawyers who have French as their mother tongue have occasion to work in French and English, while 60% of those who have English as their mother tongue have occasion to work in French and English. This seems to indicate that there is demand for judicial and legal services in both official languages, as well as the capacity on the part of those lawyers to provide services in both languages. The bilingual nature of the practice of law among lawyers who belong to AJEFO is apparent from these figures.

Mother Tongue and University where Legal Studies Were Done

Table 10.3 shows that 45 of the 71 lawyers (63%) who responded to the survey studied at the University of Ottawa, four (6%) studied at the University of Moncton and 22 (31%) studied at a university other than those two, which offer law programs in French for Canadian francophones outside Quebec. Of those 22 lawyers, 22 studied in English-language institutions and two studied in French-language institutions other than Moncton and Ottawa.

There are 49 lawyers who studied common law in a francophone or bilingual academic context (Moncton or Ottawa), representing 69% of the total.

Of the lawyers who have French as their mother tongue, 76% (42 out of 55) studied law at the University of Ottawa Faculty of Law, while 7% (four out of 55) attended law school at the Université de Moncton. Of the other lawyers who have French as their mother tongue, 16% studied law elsewhere than Ottawa or Moncton.

Of the lawyers who have English as their mother tongue, three out of 15 (20%) studied law at the University of Ottawa, and 12 out of 15 (80%) went elsewhere.

Of the lawyers who attended the University of Ottawa, 93% have French as their mother tongue and 7% have English as their mother tongue.

A high proportion of lawyers who have French as their mother tongue studied law at the University of Ottawa. The common law program at that university is offered in both French and English, while at the Université de Moncton it is offered only in French.

In the French common law program at the University of Ottawa, it is possible for a student to take 25% of his or her courses in English in the second and third years, while the first year must be done in French. Given the bilingual context of the practice of law in Ontario, the University of Ottawa model appears to be quite appropriate, in that students have an opportunity to acquire the legal vocabulary that is needed in the practice of law, first in French and then in English.

However, before coming to this conclusion, it is important to consider the language in which a lawyer actually studied law at the University of Ottawa, since it offers the opportunity to study common law in either French or English.

University where Legal Studies Were Done and Language of Legal Studies

In Table 10.4, we see that, out of the 45 lawyers who studied at the University of Ottawa, 23 (51%) studied in French, seven (16%) studied in English and 15 (33%) studied in French and English. Thus a little more than half of the respondents who studied law at the University of Ottawa did so in French, and a little more than one third did so in French and English. Between these two cohorts of respondents, 84% acquired legal knowledge in French.

Views of Other Actors in the Judicial System

More than one participant said that the creation of French common law programs has helped to increase both the supply of and the demand for judicial and legal services in French. One of the participants associated the significant rise in requests to proceed in French in Ontario since 1997 with the fact that there are more lawyers who have graduated from French-language law schools, and also that francophones have become more educated about their rights.

University and Language of Work

As indicated in Table 10.5, a majority of the lawyers who responded to the survey work in French and English. Of the 45 lawyers who studied at the University of Ottawa, 37 (82%) work in French and English; the four graduates of the law faculty at the Université de Moncton all work in French and English; and 63% of the law graduates of all other universities work in French and English.

Once again, these figures illustrate the bilingual nature of the practice of law among lawyers who belong to AJEFO.

Language of Work and Language of Legal Studies

Table 10.6 shows that of the 55 lawyers whose languages of work are French and English, 23, or 42%, studied law in French, 14, or 26%, studied in English, and 18, or 33%, studied in French and English.

Thus a significant proportion of the lawyers who work in both official languages studied law either entirely or partially in French. In total, these lawyers account for 41 out of 55 of the lawyers, or 75%.

This finding again illustrates how important law programs in French are in relation to the practice of law in that language.

Supply of and Demand for Services in French

Proportion of Clients who are French-Speaking and Demand for Services in French

As Table 10.7 shows, for all of the lawyers surveyed, an average of one third (31%) of their clients are French-speaking. Nearly one half of that third, an average of 47%, request services in French. Those proportions vary from one area to another.

Compared to the rest of the province, northern and eastern Ontario have a higher proportion of French-speaking clients. However, a lower proportion of those clients request judicial and legal services in French. In northern Ontario, 38% of the clients are French-speaking and 29% of those clients request judicial and legal services in French. In eastern Ontario, 35% of the clients are French-speaking and 34% of those clients request judicial and legal services in French.

The proportion of French-speaking clients is highest in Ottawa (43%), and those clients more often request services in French (65%). We should note that, since a high proportion, 41%, of the lawyers who responded to the survey are in Ottawa, this may have increased the figures for the province as a whole.

In central Ontario, a low proportion of clients (8%) are French-speaking. On the other hand, a higher proportion of those clients request judicial and legal services in French than in eastern and northern Ontario.

The proportion of clients who are French-speaking is slightly higher, 11%, in southern Ontario than in central Ontario. However, that figure is far lower than in the three other regions. As well, the proportion of clients who request judicial and legal services in French, 22%, is the lowest of all of the areas of the province.

Views of Other Actors in the Judicial System

The information provided by one key informant seems to be consistent with the data: from the regional standpoint, it is reported that eastern Ontario (the five counties and Ottawa) hears more cases in French than the rest of the province, and that the Toronto area hears as many cases, in absolute figures, as in northern Ontario. In addition, there has reportedly been a very significant increase in cases heard in French in the Toronto area in recent hears. In southwestern Ontario, however, there appear to be few requests to proceed in French.

At the provincial level, it is reported that there has been a significant increase in requests to proceed in French and in the number of cases heard in French in recent years. In the province as a whole, it is reported that the number of requests for services in French has risen and continues to grow. Moreover, the number of complaints relating to the provision of judicial and legal services in French has fallen, giving rise to the observation that the capacity to offer judicial and legal services in French appears to have improved in terms of both quantity and quality.

The growth in the number of requests to proceed in French and of cases heard in French is connected, according to this informant, with the growth in the number of lawyers who have graduated from French-language law schools and the greater awareness among francophones of their language rights.

Perception of Impact of Proceeding in French

As Table 10.8 illustrates, all lawyers believe 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. When they were asked whether certain factors have an impact on that decision, 37 out of 63 respondents (59%) identified that factor.

Perception of impact of proceeding in French, by region

However, there are distinctions in respect of those figures when they are broken down by region.

Delay in providing services

The following proportions of lawyers perceive that this may have a negative impact on the decision as to whether to proceed in French: 62% of respondents in northern Ontario, 100% of respondents in eastern Ontario, 54% of lawyers in Ottawa, 39% of respondents in central Ontario and 100% of respondents on southern Ontario. While opinion is unanimous in eastern and southern Ontario, it is more divided in Ottawa and central Ontario: in Ottawa, 54% believe that delays are a factor that has an impact on the decision as to whether to proceed in French, 39% do not believe that this factor has an impact and 7% don't know. In central Ontario, 39% believe that delay is a factor that has an impact on the decision as to whether to proceed in French, 46% do not believe that this factor has an impact and 15% don't know.

Additional costs

In four of the five regions - northern, eastern and southern Ontario and Ottawa - this factor is not generally regarded as having an impact on the decision as to whether to proceed in French. The proportion of respondents who say this are as follows: 54% in northern Ontario, 75% in eastern Ontario, 75% in southern Ontario and 71% in Ottawa. However, responses are more divided in central Ontario where the same proportion of respondents, 39%, consider this factor to have and not to have an impact on the decision as to whether to proceed in French. In that region, some respondents - 23% - don't know, while the proportion of respondents who don't know is 0% in the three of the other regions and 15% in northern Ontario.

Possibility of an unfavourable judgment

A high proportion of respondents in the Ottawa region - 93% - express the opinion that this factor has no impact. Of respondents in southern Ontario, 75% share that opinion, while the other 25% express no opinion. In the other three regions, the responses were more divided. In northern Ontario, 54% believe that this factor has no impact, 31% believe that it does have an impact and 15% don't know. In eastern Ontario, exactly half of respondents believe that this factor has an impact, and the other half believe that it has no impact. In central Ontario, 54% do not believe that this factor has an impact, 8% believe that it has an impact and 39% don't know. We note that significant proportions of lawyers expressed no opinion on this question: 25% in southern Ontario and 39% in central Ontario. This is a concern, in that it raises the question of the perception of justice being done.

Possibility of appealing

This factor is not regarded as having an impact on the decision as to whether to proceed in French by the following proportions of lawyers: 75% in eastern Ontario, 93% in Ottawa, 67% in central Ontario and 75% in southern Ontario. The proportion is lower in northern Ontario, at 54%, with 28% believing that this factor has an impact and the same proportion saying that they don't know.

Perception of a fear among clients of negative impacts on their case as explaining their decision not to proceed in French

The lawyers in eastern Ontario more often perceive this fear on the part of their clients: four out of five, or 80%, of them say that they perceive this fear, while 20% don't know. This fear is also perceived in northern Ontario by 46% of lawyers, while 39% do not perceive the fear and 16% don't know. On the other hand, this fear even less is perceived in other regions: 79% of respondents in Ottawa and 64% in central Ontario say that they do not perceive this fear among their clients. Opinion is more divided in southern Ontario: 50% do not perceive this fear, 25% perceive it and 25% don't know.

To summarize, the data indicate that opinion on a regional basis in part corresponds to the opinion of all lawyers who responded to the survey. However, it may be observed that on the question of the four factors, respondents in the more remote regions of eastern, northern and southern Ontario perceive a greater impact from the decision to proceed in French. That trend appears to relate to the respondent's perception in eastern and southern Ontario concerning delays in the provision of services, on the part of respondents in eastern Ontario in relation to the possibility of an unfavourable judgment, and on the part of respondents in eastern and northern Ontario about the perception of a fear on the part of their clients of negative impacts as a result of proceeding in French.

Views of Other Actors in the Judicial System

One participant from northern Ontario says that the fears perceived on the part of francophones appearing in the courts include not only delays and the fear of an unfavourable judgment, but also the worry on the part of some francophone clients that they themselves will not properly understand the trial.

Awareness and Application of Section 530 of the Criminal Code

As shown in Table 10.9, the lawyers generally believe that there is awareness of section 530 of the Criminal Code and that it is applied, in terms of knowledge of the points where a choice of language may be made.

On the question of whether judges inform accused individuals of the possibility of making a language choice, responses are more divided: 50% of lawyers report that they don't know. Nonetheless, 37% believe that judges inform accused persons of their right to make a language choice.

Although 43% of lawyers say that the forms are available in French, 22% say the opposite and 35% don't know.

Thus from their own point of view, the lawyers are aware of and capable of complying with the requirements of section 530 of the Criminal Code. However, when they are asked whether judges inform accused persons of their right to make a language choice and whether the forms are available, the responses are more equivocal. That indecision is of particular concern in relation to whether judges inform accused persons of the language choices available to them. Although a judge is required to offer an accused the opportunity to proceed in French where there is no lawyer; nonetheless, it is curious that so many lawyers, as a category of respondents, are unable to express an opinion on this question.

Active Offer of Service

Table 10.10 shows that a number of respondents - 43% - are not aware of the existence of a policy for the active offer of services in both official languages in Ontario, while 39% say that there is one.

Views of Other Actors in the Judicial System

One key informant, however, observed that Ontario has a policy for the active offer of services in both official languages, in that it has enacted the French Language Services Act and the Courts of Justice Act. As well, new bilingual procedural regulations were made in June 2001. Those regulations were made under the Courts of Justice Act, and relate to civil proceedings, family law proceedings and proceedings under the Provincial Offences Act. Under the new regulations, the right to a bilingual trial is exercised by filing a requisition with the court, filing a written statement with the court, or filing the first document in French. A bilingual proceeding is an action or application in a court during which French and English may be used.

Notwithstanding those provisions, actors in the system are not aware of a policy for the active offer of judicial and legal services in French. Some say that such mechanisms are needed in order to create demand where it appears to be insufficient. They say that what must be done is to encourage francophones to be aware of an exercise their language rights.

Of the actors who say that there is legislation regarding the active offer of judicial and legal services in French, more than one person expressed the opinion that the devolution of powers to municipalities, which are not covered by the French Language Services Act, means that the statutory guarantees have, in the process, been weakened, if not cancelled out.

Barriers to Access to Justice in French

Overall Level of Satisfaction with Judicial and Legal Services in French

As shown in Table 10.11, the field in which the lawyers are most satisfied overall with services in French is criminal law: 65% of them say that they are satisfied, and 35% say they are dissatisfied. The next field in which lawyers are most satisfied with judicial and legal services in French is bankruptcy law, in respect of which 55% are satisfied and 45% are dissatisfied. The least satisfaction with services in French is expressed in family law, in which 53% of lawyers say they are satisfied and 47% report that they are dissatisfied.

The proportion of respondents who are satisfied and dissatisfied with judicial and legal services in French in criminal law and divorce law are virtually identical for the respondents to whom this question applied, overall, and for lawyers who practise in those fields. However, for bankruptcy law, a higher proportion of the respondents overall are dissatisfied (54%) than are satisfied (46%).

Views of Criminal Lawyers regarding Accessibility of Services and Documents in French

According to Table 10.12, if we consider the items where there are more positive responses than negative or inconclusive ones ("I don't know"), we find that the following proportions of respondents perceive those services to be accessible: judges capable of providing services in French, 43%; interpreters, 65%; and legislation in French, 73%.

If we consider the items where there are more negative responses than positive or inconclusive responses ("I don't know") regarding access to services and documents in French, we find that in criminal law, the lawyers believe that the following services and documents are not easily accessible: services from officers of the Superior Court, 44%; services from courthouse administrative personnel, 39%; pleadings in French, 39%; case law in French, 53%; and legal literature in French, 39%. The items on that list of services and documents that are less easy to access in French seem to be services in French from officers of the Superior Court and case law in French.

We note that there is some ambiguity in respect of access to a jury that is capable of hearing a case in French; on this factor, the highest proportion of responses are inconclusive: 53% of respondents say that they do not know whether it is easy to access that service.

To summarize, this data raises questions regarding access to services in French from officers of the Superior Court, access to case law in French and access to a bilingual jury in criminal law cases in Ontario. Because the number of respondents was insufficient, we cannot state any finding regarding the regional distribution of these apparent gaps in the system. However, it would be worth investigating whether the gaps are in fact localized.

Views of Lawyers Practising Bankruptcy Law regarding Accessibility of Services and Documents in French

According to Table 10.13, if we consider the items where there are more positive responses than negative or inconclusive responses, we find that 50% of respondents report that it is easy to access judges who are capable of providing services in French, while 42% of respondents have no opinion. According to 58% of respondents, it is easy to access pleadings in French.

On the other hand, access to case law and legal literature in French appears to be problematic: 58% of respondents believe that it is not easy to access case law in French, and 67% of respondents say that the same is true of legal literature in French.

We note that with respect to services in French from judges and interpreters, however, the responses are divided. For services in French from judges, 50% believe that they are easily accessible, and 42% have no opinion. For the services of interpreters, 36% believe that they are easily accessible, while 45% of respondents express no opinion.

To summarize, these few figures essentially raise questions of access to the case law and legal literature in French in bankruptcy law in Ontario. Once again, it would have been worth investigating to determine whether the gaps that appear to exist in these fields are in fact localized. However, since the number of respondents was insufficient, we cannot state any finding regarding the regional distribution of these responses.

Views of Lawyers Practising the law of divorce and support regarding Accessibility of Services and Documents in French

In Table 10.14, if we examine the items where there are more positive responses than negative or inconclusive responses, services and documents are apparently accessible in French, according to the following proportions of respondents: services from judges, 58%; services from officers of the provincial court, 53%; services from courthouse administrative personnel, 44%; interpreter services, 47%; and access to pleadings in French, 74%.

On the other hand, 63% of respondents say that legal literature is not easily accessible in French, and 42% of respondents say the same in respect of case law.

Once again, it would have been worth investigating to determine whether the gaps that appear to exist in these fields are in fact localized. However, since the number of respondents was insufficient, we cannot state any finding regarding the regional distribution of these responses.

Barriers to justice in French reported by the other actors in the judicial system

Some of the gaps identified by the survey were raised and discussed at greater length in our consultations with the other actors in the judicial system, who also identified further barriers.

According to more than one actor, the barriers to justice in French in Ontario do not stem from problems in the law, but from the implementation of the law. It is believed that the legislation providing for the right of francophones to legal and judicial and legal services in their own language should ensure that there is access to justice, but, in fact, it appears that this right is not guaranteed for a variety of reasons. The following are the major barriers identified by these actors.

Insufficient numbers of francophone or bilingual judges

A number of people spoke critically of the fact that there are insufficient or even no francophone or bilingual judges in some regions. The lack of access to francophone or bilingual judges in some regions, in their opinion, results in delays in the provision of judicial and legal services to francophones, because arrangements have to be made for a judge to travel from another judicial division.

Gaps in the judicial appointment process

A number of people attribute the shortage of francophone or bilingual judges to the appointment processes, which do not give sufficient consideration to the candidates' language proficiency. They say not only that judges' language proficiency should be considered, but also that it should be assessed, to ensure that judges who are considered to be bilingual are actually able to hear a case as well in French as they do in English.

Deficiencies in courses in legal French for anglophone judges

More than one participant believes that the legal French courses offered for English-speaking judges are inadequate. They are given on a voluntary basis, they take place only once a year for a few days, and they have little application in the courts.

Although improvements could be made in the legal French courses for anglophone judges, some people say that efforts should instead be devoted to appointing francophone and bilingual judges, since the ability to understand a language is not acquired merely by acquiring proficiency in the technical vocabulary, that is, legal vocabulary; rather, it derives from an understanding of the culture.

To summarize, the presence of judges who are capable of presiding over trials or cases involving francophone parties needs to be ensured on an ongoing basis both in the judicial appointment process and in judges' training.

Insufficient numbers of francophone or bilingual lawyers in some regions

While the number of lawyers who are capable of representing clients in French seems to have improved overall, and a number of lawyers work in both French and English, some people commented that in certain regions there are very few if any such lawyers. This is said to be the case in Sault Ste. Marie, for example.

Insufficient numbers of qualified bilingual personnel

More than one participant noted a lack of personnel attached to the judicial and legal services and at the courthouses who are both qualified and bilingual. As well, it was noted that the fact that wages are too low makes it difficult to recruit and retain personnel of that calibre. The necessary measures should therefore be implemented to recruit, train and retain qualified bilingual personnel. This comment relates to court officers and administrative personnel, among others.

Insufficient numbers of interpreters

According to more than one participant, interpretation services are not always offered.

Shortcomings in police services

In more than one case, it was noted that police services are mainly anglophone and, therefore, ill-prepared to offer services in French. As well, it was noted that the provincial police are increasingly contracting out services to municipal police services. At the municipal level, there is no obligation to comply with the French Language Services Act. Accordingly, it is believed that agreements of this kind between police services should contain certain provisions respecting services in French.

Moreover, even though the province's police services are theoretically required to comply with the French Language Services Act, that is, to be able to respond to a member of the public in the official language of his or her choice, it seems that an active offer policy is needed. The average member of the public, when dealing with a police officer, is facing a representative of authority of whom he or she may be afraid, or from whom he or she is not likely to require service in French rather than English. Some people therefore suggest that the police should be required to address members of the public in both official languages. This could be done orally and/or in writing.

Shortcomings in legal aid funding

As well, more than one participant identified the inadequacy of legal aid funding as a major barrier to the supply of and demand for judicial and legal services in French. They report that legal aid clinics simply do not have the resources to provide services in French. According to one participant, the fact that legal aid services find it difficult or impossible to offer services in French is more serious in the judicial divisions where the concentration of francophones is lower, that is, those districts outside the major centres such as Toronto, Ottawa, Windsor, Welland, Timmins and Sudbury.

The fact that it is difficult, if not impossible for legal aid services to offer services in French as well as in English is a matter of even more concern because it is generally the most vulnerable members of our society who use legal aid, and legal aid services play an ever-growing role in the practice of law, particularly in labour law or housing law.

Shortcomings in funding of AJEFs

According to various respondents, the associations trying to improve minority groups' access to the judicial system, including the AJEFs, are greatly under-funded. Some of them say that this limits their ability to work with government departments to improve access to justice.

Initiatives

Initiatives in Progress

Some participants informed us of initiatives that are in progress in Ontario that would contribute to access to justice in French and could be worthwhile for other jurisdictions.

Ontario is currently implementing what is called the Integrated Justice Project. This project is bringing together all of the judicial and legal services (Attorney General, Solicitor General and Correctional Services) offered to the public both in French and in English that are available to the public in electronic format (interfaces, electronic document filing, access to forms, etc.). Some problems, such as geographic isolation and the availability of bilingual staff, will be overcome by this method. This, we are told, should ensure that procedures can be expedited and access provided to high quality services in French is provided.

An innovative initiative on the part of the Law Society of Upper Canada was reported, involving incorporating lawyers' obligation to offer services in both official languages in the legal profession's code of ethics.

Completed Initiatives

Despite the concerns and reservations stated earlier in this report, the actors in the system do acknowledge the efforts made by the federal government to facilitate access to justice in French. As well, they believe that Part VII of the Courts of Justice Act, which provides that the official languages of the courts are English and French, has had a positive impact on the delivery of judicial and legal services in both official languages.

A number of initiatives that are said to have had a positive impact on access to justice in French were also mentioned: the appointment of several francophone judges and bilingual anglophone judges, the fact that a number of francophone Crown counsel and court clerks have been hired, the creation of a translation service for use in proceedings, the translation of provincial statutes, the translation into French of the Rules of Procedure and the establishment of the French common law program at the University of Ottawa.

Possible Solutions

Federal

At the federal level, the following ideas could be considered:

Provincial

Others

Tables

Table 10.1: Regional Distribution of Lawyers and Respondents
Regions Total Respondents Lawyers
Number Percentage Number Percentage
North 15 19% 14 20%
East-Ontario 6 8% 6 9%
Ottawa 32 41% 29 41%
Centre 17 22% 16 23%
South 5 6% 4 6%
Southwest 3 4% 1 1%
Total 78 100% 70 100%
Table 10.2: Lawyers' Mother Tongue and Working Language
Working language Mother tongue
French English Other Total
French 2   0   0   2 (3%)
English 8   6   0   14 (20%)
French and English 45   9   1   55 (77%)
Total 55 (78%) 15 (21%) 1 (1%) 71 (100%)
Table 10.3: Mother Tongue and University of Legal Studies
Mother tongue University
Other Moncton Ottawa Total
French 9   4   42   55 (78%)
English 12   0   3   15 (21%)
Other 1   0   0   1 (1%)
Total 22 (31%) 4 (6%) 45 (63%) 71 (100%)
Table 10.4: University and Language of Legal Studies
Language of legal studies University
Other Moncton Ottawa Total
French 0   4   23   27 (38%)
English 16   0   7   23 (32%)
French and English 6   0   15   21 (30%)
Total 22 (31%) 4 (6%) 45 (63%) 71 (100%)
Table 10.5: University and Working Language
Working language University
Other Moncton Ottawa Total
French 0   0   2   2 (3%)
English 8   0   6   14 (20%)
French and English 14   4   37   55 (77%)
Total 22 (31%) 4 (6%) 45 (63%) 71 (100%)
Table 10.6: Working Language and language of Legal Studies
Language of legal studies Working language
French English French and English Total
French 2   2   23   27 (38%)
English 0   9   14   23 (32%)
French and English 0   3   18   21 (30%)
Total 2 (3%) 14 (20%) 55 (77%) 71 (100%)
Table 10.7: Proportion of French-Speaking Clientele and the Demand for Legal Services in French Within Each Region
  All Regions North East Ottawa Centre South
Proportion of French-speaking clientele 31% 38% 35% 43% 8% 11%
Proportion of French-speaking clientele demanding legal services in French 47% 29% 34% 65% 36% 22%
Table 10.8: Perception of the Impacts of Proceeding in French
  Yes No Do not know
Delays in services 37 (59%) 20 (32%) 6 (10%)
Additional costs 19 (31%) 38 (61%) 5 (8%)
Unfavourable judgment 9 (15%) 45 (73%) 8 (13%)
Possible inscription in appeal 6 (10%) 47 (77%) 8 (13%)
Perceived fear, among the clients, of a negative impact on their case 17 (26%) 39 (60%) 9 (14%)
Table 10.9: Awareness and Application of Section 530 of the Criminal Code
  Yes No Do not know
Awareness of section 530 20 (83%) 2 (8%) 2 (8%)
Awareness of the stages in the process where there is a possibility of making decisions on language 19 (79%) 4 (17%) 1 (4%)
Lawyers who advise their clients each time the opportunity of making a linguistic choice arises 17 (81%) 1 (5%) 3 (14%)
Judges who advise the accused of their linguistic options each time the opportunity arises 8 (37%) 3 (14%) 11 (50%)
Availability of relevant forms in French 10 (43%) 5 (22%) 8 (35%)
Table 10.10: Active Offer of Service
  Yes No Do not know
Existence of a policy on the active offer of service in both official languages 9 (39%) 4 (17%) 10 (43%)
Table 10.11: Overall Level of Satisfaction with Judicial and Legal Services in French
  Lawyers All Respondents
Satisfied Not satisfied Satisfied Not satisfied
Generally speaking, regarding the availability of judicial and legal services in French in criminal law, you are: 13 (65%) 7 (35%) 14 (64%) 8 (36%)
Generally speaking, regarding the availability of judicial and legal services in French in bankruptcy law, you are: 6 (55%) 5 (46%) 6 (46%) 7 (54%)
Generally speaking, regarding the availability of judicial and legal services in French in the law of divorce and support, you are: 10 (53%) 9 (47%) 10 (50%) 10 (50%)
Table 10.12: Availability of French Services and Documents According to Criminal Lawyers
  Yes No Do not know
From judges 10 (43%) 8 (35%) 5 (22%)
From officers of the Provincial Court 8 (35%) 7 (30%) 8 (35%)
From officers of the Superior Court 5 (22%) 10 (44%) 8 (35%)
From administrative officials at the Court House 8 (35%) 9 (39%) 6 (26%)
From federal prosecutors or legal agents of the Attorney General of Canada 10 (43%) 6 (26%) 7 (30%)
From provincial prosecutors and their substitutes 9 (41%) 7 (32%) 6 (27%)
From interpreters 15 (65%) 2 (9%) 6 (26%)
In legal proceedings in French 8 (35%) 9 (39%) 6 (26%)
To empanel a jury whose members are capable of hearing a case in French 6 (26%) 5 (22%) 12 (52%)
Of legislation in French 16 (73%) 3 (14%) 3 (14%)
Of case law, court rulings, etc. in French 7 (30%) 12 (52%) 4 (17%)
Of jurisprudence, i.e. legal sources, in French 6 (26%) 9 (39%) 8 (35%)
Table 10.13: Availability of French Services and Documents According to Lawyers in Bankruptcy Law
  Yes No Do not know
From judges 6 (50%) 1 (8%) 5 (42%)
From officers of the Superior Court 4 (37%) 4 (37%) 3 (27%)
From administrative officials at the Court House 3 (30%) 4 (40%) 3 (30%)
From interpreters 4 (36%) 2 (18%) 5 (45%)
In legal proceedings in French 7 (58%) 3 (25%) 2 (17%)
Of case law, court rulings, etc. in French 4 (33%) 7 (58%) 1 (8%)
Of jurisprudence, i.e. legal sources, in French 2 (17%) 8 (67%) 2 (17%)
Table 10.14: Availability of French Services and Documents According to Lawyers in the Law of Divorce and Support
  Yes No Do not know
From judges 11 (58%) 6 (32%) 2 (11%)
From officers of the Provincial Court 10 (53%) 7 (37%) 2 (11%)
From officers of the Superior Court 9 (47%) 7 (37%) 3 (16%)
From administrative officials at the Court House 8 (44%) 7 (39%) 3 (17%)
From interpreters 9 (47%) 5 (26%) 5 (26%)
In legal proceedings in French 14 (74%) 5 (26%) 0 (0%)
Of legislation in French 13 (68%) 6 (32%) 0 (0%)
Of jurisprudence, i.e. legal sources, in French 4 (21%) 12 (63%) 3 (16%)
Of case law, court rulings, etc. in French 7 (37%) 8 (42%) 4 (21%)