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| Agnès Whitfield |
Over 50 years after the adoption of the Official Languages Act in 1969, and over 40 years since the enactment of the Canadian Charter of Rights and Freedoms, these rights remain tenuous even in our House of Commons. When rights are routinely infringed upon and cannot be fully exercised, public confidence in the rule of law is diminished, and this should be a concern to all public-minded citizens.
Unfortunately, the Canadian legal community is failing to do its part to ensure that French-language rights are respected. Too many anglophone lawyers, who should know their law better, continue to assume that everyone speaks (or should speak) English, or that translation services, however grudgingly or incoherently provided, are sufficient to allow full access to justice in French. This is the kind of insidious thinking that turns an official Canadian language guaranteed equality with English in the Charter into a second-class language and francophone Canadians into second-class citizens.
No national standards for handling French-language complaints
Take the example of the Federation of Law Societies of Canada, which bills itself as the “national association of Canada’s regulators of the legal profession.” According to its website, it has “developed consistent national standards for how law societies handle complaints and discipline matters. The standards help ensure members of the public are treated promptly, fairly, and openly when they make a complaint against a legal professional.” These national discipline standards include provisions for accessibility to the complaints process and mandatory training for all adjudicators. Nowhere do these standards address linguistic requirements. There are simply no national standards for how complaints made in French to Canadian law societies should be handled. This omission can lead to aberrant, even Kafkaesque situations for francophone complainants in provinces where French is a minority language.
In Ontario, Law Society of Ontario decisions can be appealed to a Complaints Resolution Commissioner, a position occupied since June 2023 by a unilingual anglophone. Everything is done through translation, although this is not acknowledged. Complainants receive correspondence written in more or less adequate French, signed by employees who, according to the LSO’s directory, do not provide services in French.
Hearings are set up (again through correspondence in French), but no information is volunteered about how the unilingual commissioner will hear the case. When asked, her office indicates that she will be assisted by a bilingual lawyer and an interpreter. If the complainant submits that this process, with all the risks of error and misunderstanding it entails, does not respect their right to ask the commissioner to independently review the LSO decision (presumably by reading the file herself in French), her office disagrees and suggests another process: her powers will be delegated to a bilingual lawyer (but chosen how?), who will hear arguments in French. Either way, the commissioner will end up signing a decision letter on a case about which she has strictly no first-hand knowledge. If a complainant insists that these options offer a second-class access to the commissioner, they are invited no more no less to withdraw their request for review.
Negative impacts on francophone rights
Under the Law Society Act of Ontario, when complaints reach the tribunal stage, a party who speaks French may require that any hearing in the proceeding be heard by panellists who speak French. Why then is this approach not followed during the review process? The appointment of a unilingual complaints commissioner has important consequences for Franco-Ontarians, in an area, access to justice in French, where their rights have been seriously eroded for many decades. Inadequate services in French, too few bilingual judges, higher costs and longer wait times, accessing the justice system in French in Ontario is a journey fraught with obstacles, in part because the LSO fails to sanction lawyers who oppose francophone litigants’ right to use French and needlessly extend procedures. The only recourse is the Complaints Resolutions Commissioner. But if the commissioner cannot read the complaint files themselves and has little understanding of French-language rights, how likely is it that they will send complaints about language issues back to the LSO for further investigation?
Under Ontario Regulation 31/99, a selection committee, comprised of the Ontario Attorney General or his appointee, the LSO treasurer, and a bencher, advertises the position of Complaints Resolution Commissioner and reviews applications “in accordance with criteria established by the Committee, including criteria relating to the assessment of applicants’ professional excellence, community awareness and personal characteristics.” The committee then submits a ranked list of at least two applicants to the LSO Convocation who makes the final determination.
Incomprehensively, given all the members of the Ontario bar participating in this decision, bilingualism does not appear to have been considered to be an appointment criterion for the position of Complaints Resolution Commissioner. Over and beyond the lack of respect it demonstrates for French-language citizens and their rights, this kind of blatant disregard for the law brings dishonour to the legal community (if it fails to respect one law, how many others will it contravene?), and serves to further erode the public’s diminishing confidence in our legal system. It’s time for members of the Canadian legal community to turn on their headlights, as they say in French, and step up for the law.
Agnès Whitfield is professor of English and French at York University. She holds a doctorate in Quebec literature from Laval University and is an ardent defender of French-language rights in Canada.
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