Bilingual judges may face assessment to prove language skill

Future bilingual Ontario judges may have to prove their French-language competency through an objective assessment as the Ministry of the Attorney General acts on recommended improvements to access to justice in French.

Consistent language-proficiency requirements throughout all Ontario courts are among the proposals included in a report prepared recently by the French language services bench and bar advisory committee.

A steering committee will review and implement the suggestions in the report. It concluded that accessing justice in French in the province is “difficult, time-consuming, and expensive.”

“Ontario’s three levels of court do not use a single or consistent definition of the linguistic qualifications of a bilingual judge or justice of the peace, nor do they use a similar process to identify who is a bilingual judge or justice of the peace,” the report stated.

“This inconsistency leads to widely varying levels of French proficiency among Ontario’s ‘bilingual’ judicial officers.”

The justice minister’s judicial appointments advisory committee should adopt the written and oral language assessment method used by the justices of the peace appointments advisory committee, the report said, as it “objectively [evaluates] candidates’ language competency.”

Currently, prospective justices of the peace undergo tests for oral and written French abilities just as civil servants do. For federal judicial officer applicants, the process involves merely asking if they’re able to hear and conduct a trial in French.

Paul Le Vay, president of the Association of French Speaking Jurists of Ontario, says people shouldn’t assume that fluency in written French translates into spoken eloquence in the language. “It requires a different level of language ability to, for example, read a written document and make a decision based only on the submission in writing on the one hand and on the other, say to conduct a jury trial where you have to talk to members of the jury and listen to witnesses who may be speaking with a particular accent and be able to understand them,” he says.

Le Vay, who co-chaired the committee’s report to the ministry, adds that consistency in evaluation will improve the quality of judicial services because right now “there is no defined standard in Ontario on what it means to be a bilingual judge.”

The bottom line, he says, is that “the two official languages of Ontario courts are French and English. Nobody ever has to raise the question, ‘Does the judge have a proper understanding of English?’

“Our view is that a judge hearing a bilingual matter, hearing evidence in French, that judge’s grasp of French should be every bit as good as a judge’s understanding of English.”

The Ontario Bar Association’s official languages committee will be reviewing the report and will provide suggestions to the government, says first vice president Pascale Daigneault.

For its part, the OBA is taking steps to make members more competent in both official languages, Daigneault adds. “Earlier this year, I participated in the recording of the OBA’s first French continuing professional development program, which qualifies for CPD professionalism credits,” she says.

The OBA has 300 members who have requested communication in French.

Daigneault notes the OBA will also go online with its French Without Tears language program. It has offered the program to members in Toronto and Ottawa over the last 15 years in order to increase competency in French.

The updated web site will also allow the public to search for French-speaking lawyers, she says.

The committee’s report pointed to several other shortcomings in Ontario’s courts when it comes to serving French speakers that it said compromises access to justice.

“Over two million provincial offences charges are brought annually under statutes governing public welfare matters,” the report stated.

“Based on the proportion of Ontarians who are French-speaking, this represents over 100,000 provincial offence charges for which the accused had a right to proceed in French.”

Yet a lack of francophone judges and other staff means francophone defendants often have to choose between coming back another day and proceeding on the same day in English, the report said. Neither choice is fair, the report stated. According to the report, electing to proceed in English disregards the accused’s language rights while adjourning the hearing can be costly.

“The accused may also view requesting an adjournment as an indication that he or she is less than fully co-operative. Thus, French speakers who speak English are likely to choose to proceed in English, rather than exercise their French language rights.

“The reality in Ontario is that delays are never encountered in the justice system because one of the players — staff, lawyers, judges or justices of the peace — does not speak English,” the report stated. “The situation is quite different for a person who chooses to proceed in French.”

In addition, Ontario’s courts have a long way to go in informing French speakers of their right to trial in their own language, the report says. According to the report, the issue is particularly significant for self-represented family law litigants who are less likely to be aware of that right.

The system should make litigants aware of their language rights at “first point of contact,” the report states.
The issue of access to justice in French was a key question for the official languages commissioner of Canada this summer. That’s when the commissioner launched a study of six provinces to look at the role bilingualism plays in the appointments process for judges and the language training provided to them.

The study will look at the superior and appeal courts in Ontario, Quebec, Manitoba, Alberta, New Brunswick, and Nova Scotia.

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