Lost in Translation
I first met KH at the Court of Appeal for Ontario on Wednesday, December 10, 2014. I was the assigned Amicus Duty Counsel from Pro Bono Ontario whose task it was to assist self-represented persons with their civil or provincial regulatory matters. Mr. H is a Moroccan immigrant and Canadian citizen whose first language is Arabic and whose second language is French.
It may have been fate our meeting on that day. Whereas Mr. H was a member of the francophone minority community in Ontario, I was once a member of the anglophone minority community in Quebec. I attended both undergraduate studies and law school at McGill University in Montreal and worked in Quebec City and Montreal during my twenties. While I had moved back to Ontario in December 2007, issues of language rights and bilingualism still remained on my mind.
Right from the start I could see there was a chance that Mr. H might win leave to appeal. Those familiar with provincial offences know this is not an easy task. Generally speaking, a person accused of a provincial regulatory offence is first tried in the Ontario Court of Justice before a Justice of the Peace. Following a decision, an appeal lies to a Judge of the Ontario Court of Justice. Practically speaking, in most cases, this is the final avenue of appeal. However, section 131 of the Provincial Offences Act allows an applicant to seek leave to appeal to the Court of Appeal and to obtain leave so long as the applicant raises a question of pure law that affects the due administration of justice throughout the Province. Suffice to say, leave to appeal on provincial offences is rarely granted by our Court of Appeal.
In reviewing Mr. H’s application materials, I could see that he had been tried in English in St. Catharines in 2012 on the offences of operating a motor vehicle without insurance and surrendering false evidence of insurance. Mr. H had not been present in court at the trial but rather an agent of his paralegal had pleaded him guilty to the two offences. Mr. H had appealed the decision to a Judge of the Ontario Court of Justice. He appeared in July 2014 as a self-represented appellant in the lower appeal court where he was assisted by a French language interpreter. At the appeal, Mr. H insisted that he was innocent and that he had never instructed the paralegal or the paralegal’s agent to plead him guilty. He also told the court that he had asked for an appeal in French to explain the situation. The appeal court judge quickly dismissed the appeal.
There was something troubling to me about a francophone arguing an appeal in an English language court through a French interpreter. Simply put, under section 125 of the Courts of Justice Act, French is an official language of the Ontario courts. It is no greater nor lesser in value than the English language. All persons have the right to bilingual proceedings in this Province. Yet, when Mr. H had indicated before the appeal court Judge that he had asked for an appeal in French, his appeal continued in English with a French language interpreter. Both the Crown and the Judge spoke only English at the appeal. The appeal court Judge had not asked the francophone appellant, Mr. H, if he wished to pursue a bilingual appeal before a bilingual Judge and Crown.
In any event, it was not until January 7, 2015 that the leave to appeal hearing went ahead in French before the Court of Appeal. I advanced the position on behalf of Mr. H that the applicant should have had a bilingual appeal in St. Catharines. As with section 530 of the Criminal Code, where Judges are required on a first appearance to advise an accused person in criminal matters of their right to French language proceedings (or English in Quebec), the provincial offences appeal Judge should have informed Mr. H that he had the right to a fully bilingual appeal. As this had not happened, a miscarriage of justice had occurred. After hearing what amounted to well over one hour of submissions, the Honourable Madam Justice van Rensburg reserved decision.
On February 3, 2015, in a decision rendered in French, Madam Justice van Rensburg granted Mr. H’s application for leave to appeal on the question of whether or not a francophone appellant has the right to a bilingual appeal after not requesting a bilingual trial [R c. H.  ONCA 76]
And so it went on. While the conclusion to this story might sound anticlimactic, since we never did argue the issue of whether or not a francophone appellant has the right to a bilingual appeal after an English trial in provincial offences matters (albeit I did draft a lengthy factum on this issue anyway), a new trial ended up being ordered on an unrelated ground of ineffective assistance of the paralegal at trial.
In the end what this case really taught me was this: the Courts of Justice Act and/or the Provincial Offences Act need to be amended to include a provision similar to what exists in section 530 of the Criminal Code. That is, in provincial offences matters, Judges must inform an accused francophone that he or she has the right to a bilingual proceeding and not simply to an interpreter. While the Courts of Justice Act does indicate that French is an equal language in Ontario, if no one is aware of this, what is the benefit? Just as the Law Society has made efforts in recent years to impose a positive duty on members of the profession to inform francophones of their right to bilingual proceedings, so too should this positive obligation be extended to Judges in our provincial offences courts. Only then will the French language truly be on equal footing with English in Ontario’s courts.