For Francophone litigants in Ontario, one of the main obstacles to exercising their constitutional right to French, and this for a long time, is the shortage of bilingual judges. In March 2021, the Ontario Court of Justice replaced a bilingual judge in the district of Algoma, with a high Francophone density, with a unilingual English judge, thereby depriving French-speaking litigants of their right to be heard in French. 1
Posted at 3:00 p.m.
Why do we lack French-speaking judges? The answer is simple: we do not name them! Since 1989, judges of the Court of Justice have been appointed by the Attorney General of Ontario from a list of candidates recommended by a Judicial Appointments Advisory Committee. From 1989 until 2017 (29 years), of the 438 judges appointed, only 31 were French-speaking. For nine years, we did not name a single Francophone! When you think that the Ontario Court of Justice is the busiest in Canada and that it hears many criminal and family cases, the limited access to French-speaking judges has serious consequences for Franco-Ontarian litigants.
How to explain such injustice? Admittedly, the Ford government is not known for its support of the French-speaking community of Ontario: since coming to power, it has fired the French Language Services Commissioner, cut the budget for the University of Ontario French and allowed the bankruptcy of Laurentian University, which offered many programs in French. When we look more closely at the functioning of the Advisory Committee, we discover a real culture of refusal of French.
No language proficiency criteria
The first staggering observation is that the Committee has on average only two Francophone members out of 14 each year: the organizations responsible for appointing the members of the Committee refuse to respect the principle of linguistic duality stipulated by the Courts of Justice Act. Since 1999, the judges who represent the Court of Justice or the Ontario Judicial Council have rarely been French-speaking. Of the three lawyers’ associations, namely the Ontario Bar Association, the Federation of Associations and the Bar of Ontario, only the latter has chosen a French-speaking representative, and this for one year.
On average, two of the seven members appointed each year by the Ministry of the Attorney General are French-speaking, but since these members are neither judges nor lawyers, one wonders what their real power is within the Committee, faced with the crushing weight unilingual English judges and lawyers.
It is also alarming to note that the long list of attributes that the Committee must take into account when recommending candidates does not include any language proficiency criteria. The Committee is based on professional excellence, but, for all practical purposes, the process of adjudicating files is entirely in English and favors English-speaking candidates. Finally, the Committee only seems to recommend French-speaking candidates when the position of judge is advertised as being bilingual, a decision which is taken by the Court of Justice. Judging by the six judges appointed by Attorney General Doug Downey in December 2021, five men and one woman, all Anglophones, posted bilingual positions are still very rare, even though the law recognizes the principle of the active offer of services in French, in a visible, accessible and automatic way.
The ignored francophone reality
What is particularly iniquitous is the incredible duplicity of the process. Since 1999, the Committee has recognized each year that it is far from being representative of Ontario society, but offers no corrective action. What’s worse, the Committee no longer even recognizes Francophones as an under-represented group. The Attorney General appoints about a third of the candidates recommended by the Committee, but chooses not to increase the number of French-speaking judges. The Canadian judiciary does not take advantage of its sacrosanct independence to defend French. The Ontario Bar Association organizes a training program in legal skills, in which the Advisory Committee participates, but none of the eight sessions deals with access to justice in French or the management of bilingual hearings. How can we ignore the French-speaking reality to such an extent?
Why this determination not to appoint French-speaking judges? Since many Franco-Ontarians are bilingual, their presence would in no way affect the services offered in English. Successive governments can have a speech of openness towards the Franco-Ontarian community, as under Dalton McGuinty and Kathleen Wyne, or a rather closed attitude, as under Doug Ford. But the process of recommending judicial candidates remains largely controlled by anti-French interests operating behind the scenes and escaping accountability. For the situation to change, the Court of Justice and the Attorney General would have to commit to increasing the number of bilingual positions and that the process for appointing Francophone judges go through a Francophone committee.