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French-language rights: Law societies’ duty to francophone litigants | Agnès Whitfield

Thursday, October 28, 2021 @ 8:36 AM | By Agnès Whitfield

Agnès Whitfield %>
Agnès Whitfield
Given the pushback in some Canadian English-language media about Quebec and federal government initiatives to defend and promote French language rights, it is salutary to remember the grave systematic inequities francophone litigants face outside Quebec.

Accessing the justice system in French leads to longer wait times, additional costs, supplementary procedures, inaccurate transcriptions of trial proceedings, not to mention the lack of bilingual judges and contrary rulings tainted by unconscious or conscious bias. Opposing counsel can with impunity refuse litigants’ use of French and even attack their credibility if they insist on exercising their language rights. Even judges are not necessarily up to date on language rights. These inequities have been officially documented for decades in reports published by the Commissioner of Official Languages, the Attorney General of Ontario, the Commissioner of French Services of Ontario, and the Department of Justice (see references below), but access to justice in French continues to deteriorate. Beyond the buck-passing from one level of government to another, law societies, too, are not doing their part.

Under the Law Society Act, the Law Society of Ontario, for instance, has a duty to “maintain and advance the cause of justice and the rule of law,” “to act so as to facilitate access to justice for the people of Ontario” and to “protect the public interest.” However, one can rightly ask whether, in its eyes, language rights are part of the rule of law, francophones are part of the Ontario population and their linguistic needs are part of the public interest. The answer appears to be no.

To all intents and purposes, the Law Society of Ontario functions exclusively in English. A look at its directory reveals that since 1997, none of its 13 treasurers has been bilingual. The current incumbents in upper-level administrative positions such as the chief executive officer and the executive director, Professional Regulation, do not practise law in French. You can write to the LSO in French and receive a response in French, but it is unlikely that your text was read in French by the person who signed the reply. A culture of translation serves to dissimulate the law society’s lack of real commitment to francophone litigants.

Resistance to French language rights appears to be entrenched. The LSO’s Committee on French Language Services, created in 1988, was disbanded in 1996. There are no designated bilingual bencher positions and the way the vote is organized makes it virtually impossible to elect a bilingual bencher even in areas of the province with an important francophone population. For bencher election purposes, Ontario is divided into two regions: The City of Toronto, and all the rest of Ontario. For both regions, only one bencher is elected by members working in the region, and the others (19 for Toronto and 13 for the rest of Ontario) by all LSO members (By-Law 3).

This absence of meaningful francophone presence may explain why the LSO does not require students sitting the bar examinations or practising lawyers to complete training in language rights. Nor does the LSO appear to be pushing for the inclusion of a language rights module in Law Faculty curricula. Yet the reports cited at the end of this article show that many of the difficulties francophone litigants face reflect a lack of understanding on the part of lawyers and even judges of their language rights, and that lawyers and judges can also offer services or hear cases in French without having the necessary linguistic skills. Here again, the LSO could take the lead and offer a French language competence certificate or encourage law faculties to promote bilingualism.

The LSO, like many of its sister organizations across Canada, participates in numerous important advisory bodies, concerning the constitution of a bank of eligible judicial appointees for instance, but there is little transparency as to whether its representatives recommend bilingual candidates or promote French-language rights.

Overall, a look behind the façade of bilingual websites suggests that resistance to French continues to prevent respectable institutions, such as our law societies, from respecting their duty to the francophone public they serve. The impact of this resistance is far from abstract: it inordinately increases the financial and human suffering of thousands of francophone litigants.

Law societies have a duty to ensure that their members respect their Rules of Professional Conduct. To that end, they must inform their members of their obligations with respect to French-language rights and ensure they respect them. But they must also do more, and act proactively to put an end to the vexations and humiliations experienced by too many French language litigants. Not to do so puts them in contravention of the very statutes they are supposed to uphold.

For more information about difficulties faced by French-language litigants, read the following reports:

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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