Ontario judicial appointments: Francophones not welcome | Agnès Whitfield

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Agnes Whitfield

For francophone litigants in Ontario, one of the major obstacles to an equitable access to justice in French has been for decades and remains the shortage of bilingual judges. One recent example: in March 2021, the Ontario Court of Justice replaced a francophone judge in Algoma, a district with a significant francophone population, by a unilingual anglophone judge, depriving francophone litigants of their right to be heard rapidly in French.

Why are there not more francophone judges? The answer is simple: they are not appointed. Since 1989, judges of the Ontario Court of Justice are appointed by the Attorney General from a list of candidates recommended by the Judicial Appointments Advisory Committee (JAAC). From 1989 until 2017 inclusively, the 29 years for which statistics are available, of the 438 judges appointed, only 31 were francophones. For nine years during this period, not a single francophone judge was appointed. For another seven years, only one was appointed. According to its website, the Ontario Court of Justice is the “busiest” court in Canada, “deals with approximately 500,000 adult and youth criminal charges and millions of provincial offense matters such as traffic tickets, and serves more than 20,000 families.” Even if francophones represent only a minority of these litigants, the limited access to francophone judges is a major impediment to their equitable access to justice.

What is the root cause of this persistent injustice? The JAAC annual reports for 1999 to 2017 are available on their website. An examination of how JAAC members are chosen and how the judicial nomination process functions, based on a reading of these reports, suggests that, beyond the approaches of individual governments, there is a more generalized, entrenched culture of resistance to French at work within the legal community.

The first troubling observation: Under the Courts of Justice Act, JAAC membership is supposed to reflect the linguistic duality of the Ontario population, but on average francophones constitute only two of its 14 members each year. Why? The different organizations responsible for appointing its members routinely defy the law. Between 1999 and 2017, the only years for which the JAAC’s annual reports are available, of the two judges the Court of Justice appoints each year to the committee, only three have been francophones. The Ontario Judicial Council has only designated one francophone judge. Of the three legal associations who name one representative each to the JAAC, the Ontario Bar Association (OBA), the County and District Law Presidents’ Association and the Law Society of Ontario (LSO), only the latter has ever designated a francophone representative, and only for one year. On average, two of the seven attorney general appointees are francophone. Since these members are not lawyers or judges, however, one wonders what real weight they have in the JAAC’s decisions, given the overwhelming presence of unilingual Anglophone judges and lawyers, and the fact that candidates require at least four, and since 2017, five votes to make even the stage where references are checked.

Not surprising in the context, but no less appealing, bilingual competence is not one of the numerous criteria on which the committee bases its recommendations. The main criterion, as stated by the committee, is professional excellence, determined in large part by professional achievement and implication in professional activities. The JAAC annual reports do not indicate the number of francophone applications, so it is not possible to determine their success rate compared to Anglophone candidates. Nonetheless, in practical terms, given that the adjudication deliberations take place in English, interviews are conducted in English, even referees are contacted in English, and opportunities for participation in professional associations and publications are substantially fewer in French than in English (a brief glance at the websites of the OBA or the LSO is sufficient to make the point), French-language applicants face more obstacles than their anglophone colleagues in the adjudication process itself. Their relative lack of success is borne out in the small overall number of francophone judicial appointments.

Finally, the committee appears to recommend francophone candidates primarily when the position is announced as being bilingual, a decision made by the Ontario Court of Justice. Since 1989 of the 438 judges appointed through the committee process, only 24 positions have been designated bilingual. Notwithstanding the Supreme Court of Canada’s 1999 ruling in R. v. Beaulac [1999] 1 RCS 768, the Court of Justice of Ontario with respect to judicial appointments continues to adopt a restrictive approach.

What is particularly iniquitous is the unabashed duplicity of the nomination process. Since its first report in 1999, the committee dutifully notes every year that its own composition does not reflect the linguistic duality called for in the Courts of Justice Act but provides no remedial action. Every year, the investigation committee regretfully observes that its pool of recommended candidates is not as diverse as it should be but no into why this should be is carried out. Even worse, the committee does not explicitly identify francophones in its list of under-represented groups.

The Attorney General appoints approximately one third of the candidates recommended by the committee but rarely chooses more francophones, assuming there are some on the list. The Ontario judiciary does not use its principle of independence to defend access to justice in French and designate more bilingual positions. The Ontario Bar Association organizes a certificate program titled “Foundations in Judicial Competencies” for aspiring judges, but none of the eight sessions deals with access to justice in French or how to manage a bilingual hearing. The Law Society of Ontario disbanded its Committee on French Language Services in 1996. The website of the County and District Law Presidents’ Association, now the Federation of Ontario Law Associations, is only in English and no French language committee is listed.

In sum, notwithstanding the openness of individual lawyers and judges, an analysis of the JAAC reports reveals an entrenched culture of resistance to francophone judicial appointments within all the different legal associations and institutions that play a role in the JAAC. Such obstinate resistance to French defies explanation. It cannot be dismissed as parochial ignorance: the inequities in French-language access to justice in Ontario have been amply documented for decades. Nor is there any practical explanation. Since many Franco-Ontarian lawyers are bilingual, their appointment as judges would not negatively affect the court’s ability to provide English-language services, once francophone needs were met. At the Cour du Québec, the vast majority of judges are bilingual, and bilingualism is welcomed as a way to enhance the court’s flexibility and efficiency.

Clearly, the status quo is not an option. Remedying the shortage of francophone judges will require a new system: a firm commitment on the part of the Ontario Court of Justice and the Attorney General’s office to a meaningful increase in bilingual positions and the creation of a francophone JAAC to adjudicate applications.

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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