Ottawa, April 22, 2003
Promoting the Use of French and English before Federal Courts and Tribunals: the Active Offer Process and the Bilingual Capability of Courts and Tribunals
Speaking notes for the Conference on Access to Justice in both Official Languages: English and French before Federal Courts
Dr. Dyane Adam - Commissioner of Official Languages
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Ladies and gentlemen:
I am extremely pleased to have an opportunity to address you at this conference on Access to Justice in both Official Languages. The initiative taken by the Department of Justice to organize this event in conjunction with the Canadian Centre for Management Development and my Office represents a concrete step toward greater consolidation of our efforts. This is matter of prime importance to me, as the right to use French and English before Canadian courts and tribunals reflects the profound will of Canadians across the country to live in our society with dignity and respect for each other.
It should be recognized, however, that the implementation of this right gives rise to a number of challenges for members of the public, lawyers and staff of federal courts and tribunals. This conference affords us a unique opportunity to examine these challenges together, but most importantly to share the valuable solutions that some of you have already put in place.
In the time allotted to me, I intend to discuss three aspects of the difficulty associated with providing access to justice in both official languages.
- First, I would like to draw your attention to the apprehensions people have about proceeding before courts and tribunals in the official language of the minority.
- Second, I will point out some of the reasons why the active offer process does not seem quite sufficient to correct these perceived fears.
- Third, I will highlight in greater detail the impact of the bilingual capability of courts and tribunals on the exercise of the litigants' language rights.
1. Apprehensions about proceeding with a case in the minority language
Over the last decade, my Office has received approximately 24 complaints from citizens who experienced difficulty in exercising their language rights before certain courts and tribunals. What do these statistics tell us? The relatively low number of complaints in this area, compared with those relating to other organizations, is partly the result of the low demand by members of the linguistic minority for services in their language. It is precisely this low level of the demand for bilingual services that warrants our attention.
Two studies conducted by my Office in addition to another one commissioned by the Department of Justice (Environmental Scan: Access to Justice in Both Official Languages) have identified two main causes. These are:
- lack of awareness on the part of litigants and their lawyers of the language rights entrenched in the Criminal Code or in the Official Languages Act; and,
- apprehensions about the negative impact of proceeding with their case in the minority language.
Strangely enough, even those citizens who are aware of their right to use the minority language before the courts and tribunals shy away from exercising such a right. Additional costs and delays are the reasons most often stated for refusing to proceed in French before the courts and tribunals. I was personally struck, while participating in a round-table discussion for TFO's Panorama program, by the reluctance of lawyers practising in minority environments to proceed in French. If members of the public, including their lawyers, continue to apprehend the negative impact of having their case heard in the official language of their choice, this could eventually result in a loss of confidence in the judicial system's ability to deliver justice in both official languages.1
2. Making the active offer of services effective: a prerequisite to the exercise of a person's right to be heard in the official language of the minority
This brings me to the second aspect of my address before you. I believe that the federal courts and tribunals are duty-bound to counteract the apprehensions of any negative impact referred to earlier. They must ensure that Canadians are encouraged to use French and English in their proceedings. In the Beaulac case, the Supreme Court of Canada stated (p. 788) that: Language rights are not negative rights, or passive rights; they can only be enjoyed if the means are provided.
One such means, the importance of which on the exercise of linguistic rights tends to be overlooked, is the active offer of service. When no active offer is made, or when it is not made in a sufficiently clear fashion, people are left unaware of their rights or shy away from exercising them. And when litigants or their lawyers do not insist on the right to have their case heard in the official language of their choice, there is natural decline in positive attempts to extend services to them in the minority language. This is a perverse effect of the system that requires immediate corrective action.
Federal courts and tribunals should ensure that the necessary measures for making active offers of service are implemented. Appropriate signage, notices or material, and personal or telephone reception services undoubtedly can all be considered as effective tools to inform members of the public of their right to be served in French or in English, and they are even a necessity. However, I personally believe that these tools are insufficient in the specific context of the federal courts and tribunals. In fact, further measures should be contemplated.
These courts and tribunals should consider yet more effective means of informing Canadians of their right to present their case and have it heard in the language of their choice. For instance, litigants or their lawyers often look up a court or tribunal's Web site in order to become familiar with the institution's rules of procedure and practice. I personally browsed a number of these Web sites and came to realize that the active offer of bilingual services is not always obvious on these sites. Accordingly, I believe that all federal courts and tribunals should pay particular attention to the way the active offer of service is made through their Web sites.
What I would really like to see is federal courts and tribunals developing an active offer policy specifically tailored to the nature of their services. Federal courts and tribunals are no ordinary federal institutions. As such, they ought to dispel apprehensions on the part of members of the public about proceeding in the official language of the minority.
3. The bilingual capability of federal courts and tribunals, and the exercise of the litigant's right
An active offer policy cannot, by itself, adequately meet the needs and the right of citizens to be heard in the language of their choice. We must ensure that this right is actually implemented by the courts and tribunals, as part of their rules of practice, and that these institutions are provided with the necessary resources to meet their obligations in this respect.
In fact, it should be stressed at this point that section 16 of the OLA gives parties to proceedings in any particular case the right to be heard by a judge or other officer who is able to understand the official language of the parties' choice without the assistance of an interpreter. Although this provision does not require all judges and officers of any given court or tribunal to be bilingual, it does require that the court or tribunal itself be bilingual as an institution. This implies that the courts and tribunals should be staffed with a sufficient number of judges and officers able to hear matters in the minority language or in both official languages.
I am aware of the difficulty for federal tribunals to maintain bilingual capability due to a number of factors. First of all, the tribunals have no control over the language skills of their adjudicators. Under the present appointment system, they are appointed by the Governor-in-Council, and yet no written instructions apply to the linguistic aspect of the selection criteria. Furthermore, the relatively short term of office of the appointees to the tribunals (from three to five years on average) undermines the effectiveness of their language training as a means of allowing the institution in which they serve to acquire an acceptable level of bilingual capability.
These restrictions are further compounded by the fact that several federal courts and tribunals are staffed by a limited number of judicial appointees. In some cases, the specific legislative provisions governing quorum act as a barrier to the actual exercise of the right to be heard in the official language of their choice. For example, if the enabling legislation of a court or tribunal provides for a minimum of three members to constitute a panel, and the court or tribunal, as a whole, is staffed by only four judicial appointees, the capability of that institution to hear cases in both official languages is severely impaired. One potentially workable solution would be to amend the court or tribunal's enabling legislation insofar as the rules relating to quorum are concerned. The amendment might provide, for example, for a reduction in the number of members required to hear certain types of cases.
However, we should strive to address the root causes of the issue. It is my belief that an in-depth review of the judicial appointment process for federal courts and tribunals should be undertaken with a view to incorporating certain linguistic factors into the process. The objective would be to ensure that federal courts and tribunals are able to maintain bilingual capability. The 1999 study conducted by my Office, which I referred to earlier, recommended that a structured consultation process be adopted for the various law associations as well as for federal administrative tribunals to address official languages issues. The Privy Council Office plays a pivotal role in this respect. It must clearly ensure that tribunal appointees are, as a group, capable of meeting the requirements of section 16 of the OLA. As a matter of fact, during the debate on Bill C-25, the Public Service Modernization Act, I suggested an amendment to the provisions relating to the establishment of the Public Service Staffing Tribunal, with this specific objective in mind.
Promoting access to justice: a collective responsibility
In concluding this address to you, I wish to stress that access to justice should be considered a collective responsibility.
First, federal courts and tribunals must agree to implement a whole range of regulatory, policy or administrative measures in order to ensure that they can operate effectively and directly in both official languages.
Second, the federal government will have to show leadership in this regard. Besides recognizing the need for an in-depth review of the judicial appointment process, the government should ensure that the chairpersons of federal tribunals are provided with all the necessary information and other tools required to fulfill their mandate as executive heads of their court or tribunal. Indeed, they should be provided with all the resources needed to manage their staff and handle the matters brought before their tribunal in accordance with the OLA and any other relevant statutes.
The various French-speaking jurists' associations and their federation should also play their part. In fact, they must continue to make their members aware of the paramount importance of informing members of the public of their language rights. Lawyers must be in a position to provide assurances to citizens that the exercise of their language rights will not have any negative impact on proceedings before any federal court or tribunal.
My Office will also take part in this collective effort by staying attuned to the language needs of Canadians and by monitoring progress. Our common objective is to ensure that the fundamental right to use either official language in legal proceedings can be fully exercised, in accordance with the principle of equality.
Notes
1Office of the Commissioner of Official Languages. (1999) The Equitable Use of English and French Before the Courts and Administrative Tribunals Exercising Quasi-judicial Powers, Ottawa: Public Works and Government Services Canada. Office of the Commissioner of Official Languages. (1995) The Equitable Use of English and French Before the Court, Ottawa: Public Works and Government Services Canada.
