Bilingualism and the Law Society of Upper Canada.

AuthorAnnis, Peter B.
PositionReprinted from The Law Society Gazette, vol. 17, p. 175, 1983 - Reprint

Table of contents INTRODUCTION Part I. The Introduction of French into the Ontario Legal System Part II. Policy Factors Supporting the Introduction of French into the Ontario Legal System 1. Language and Cultural Assimilation 2. The Ontario-Quebec Language Relationship (a) Influence exerted by Quebec on language development in Ontario (b) Unilingualism in the Province of Quebec Part III: The Law Society's Role 1. Endorsement of the Attorney General's Initiatives 2. What Endorsement of Bilingualism Entails for the Law Society (a) Dealings with the public (b) Internal communications (c) Legal education 3. Restrictions to the Implementation of Bilingualism in the Law Society (a) The Cost of Bilingualism (b) Effect on English language programmes (c) Effect on English language capabilities of Francophone lawyers (d) Concern over backlash created by implementation of French programme 4. Bilingual Models for the Bar Admission Programme (a) New Brunswick Bar Admission Model (b) University of Ottawa Model (c) Quebec Bar Model (d) Supplemental Bar Admission Programme in French CONCLUSION INTRODUCTION

It is no surprise to learn that language developments occurring in the legal field are leading the way in the historic process of giving Ontario a bilingual face. In the course of the last five years the traditional unilingualism of the Province's legal system has given away to a situation where French enjoys a limited, but significant status as one of the official languages of justice. At first, these developments seemed to have only a tangential effect on the Law Society. However, with many of the modifications now beginning to take effect, their veritable impact is coming home to the Law Society. The Law Society's monopoly over the Bar admission programme together with its influence and prestige in all matters concerning law in the Province, means that the Law Society's response to bilingualism may have a significant effect on the long-term success of the Province's initiatives in this field. Therefore, the timing is propitious to consider the ramifications that the French language issue will have on the Law Society and its programmes.

In dealing with this issue a number of questions arise. For example, what are the responsibilities of the Law Society in matters of language in the legal system? What posture should it adopt in face of the policy initiatives being pursued by the present Administration? More to the point, what exactly are these initiatives and how do they fit into the overall language programme of the Province? This paper endeavours to address these questions in the course of carrying out a review of what may be described as the "bilingualism" question and its foreseeable impact on the Law Society.

The paper is divided into three parts. The first describes the nature of the initiatives taken to introduce French into the legal system. In the second part, an attempt will be made to sketch out in fairly broad strokes some of the policy considerations underlying the French language issue in Ontario and its effect on relations with the Province of Quebec. Here the object will be to gain perspective on the motives behind the present Administration's programme to promote the use of French in the system of justice. In the third part, attention will turn to the role of the Lave Society in these issues. It will be argued that the responsibility for legal training of new entrants to the Bar, when viewed in the context of recent governmental initiatives intended to make French language legal services available in the Province, entails a co-extensive duty on the part of the Law Society to assure that Bar admission instruction is offered in the French language. Limitations to the implementation of bilingualism will then be considered, dealing first with such questions as the cost of bilingualism, its effect on English programmes, and the reservations, or "backlash', some lawyers may exhibit towards these programmes, which serve as reasons to vary or limit the scope of French programmes in the Law Society.

Of special interest in the paper is the criticism expressed by some lawyers that a French Bar admission programme may produce unilingual French-speaking lawyers. As shall be seen, this paper argues against the legitimacy of this objection, suggesting that it is harmful to the Law Society's best interests and contrary to the reality of the language setting in Ontario today. The paper will conclude with an examination of models that might be proposed for a French Bar admission programme, where the language issue is of greatest immediate concern. It will be suggested that an "optional" programme be established, akin to that used at the Ottawa University with a time-table for implementation of three to five years.

Part I. The Introduction of French into the Ontario legal system

The French language had, until recently, seen little service in Ontario's legal system. It is true that prior to Ontario existing as a separate colony, French was one of the languages of common use in the courts of the territory then comprised in the Province of Quebec. However, when Ontario was hived off from Quebec in 1791' it thereafter took on an independent existence as a unilingual English colony. The first Legislative Assembly of Upper Canada abolished those portions of French civil law that had been retained by the Quebec Act of 1774 and replaced them with English law. (2) While there were no provisions specifically restricting the use of French before the courts or in other official documents, it was thought that the same effect had been achieved with the introduction of English law. (3) This conclusion has in fact been challenged, primarily due to the domestic nature of the English legislation and its dubious appropriateness to the Canadian legal setting. (4) This discussion is of academic significance in any event, because Ontario courts and legal institutions have always conducted their business exclusively in English. (5) Specific provisions eventually appeared in the Administration of Justice Act in 1897 (6) prohibiting the use of any language except English in writs, pleadings and proceedings before any court. In the same year, the Registry Act (7) required that any document registered on title in a language other than English be accompanied by a translation.

Unilingualism thus remained a characteristic of Ontario's justice system for over 175 years, until the first breaches appeared after events in the Province of Quebec in the 1960s brought to the forefront the problem of the official language minorities in Canada. The Royal Commission on Bilingualism and Biculturalism carried out ah extensive study of the problem and recommended, among other things, that Ontario declare itself officially bilingual by adopting a provision akin to section 133 of the British North America Act. (8) It also suggested that bilingual districts be created where numbers warrant. Overall, the Commission report recommended that the official language minority receive generous treatment in the Province. (9)

The recommendations of the Royal Commission were largely accepted in theory by the Ontario government at the Constitutional Conference in 1968. (10) A task force with the Ministry of Treasury was set up to study implementation of bilingualism in the administration of justice. However, things remained stalled in the legal field until the Honourable Roy McMurtry took up his duties as Attorney General in 1975. Personally committed to the policy of enhancing French language services in Ontario's legal system, the Attorney General was abetted by the election of the first separatist government in Quebec in November of 1976. Moreover, the controversy surrounding the Filion dredging scandal case, where language was publicly debated (11) as a criterion for determining the appropriateness of venue in Ontario for a trial of criminal action, enabled the Attorney General to quicken the implementation of French language services.

The Attorney General opened his programme in June 1976 with a pilot project in the provincial court (criminal division) to test the feasibility of bilingual trials. It is perhaps an interesting point to note that this project was undertaken without legislative sanction and apparently contrary to section 127 of the Judicature Act, which as worded in 1977, permitted only English to be used before the courts. The pilot project was enlarged to embrace Ottawa, L'Orignal and Hawkesbury in June 1977, Espanola in September 1977 and Cochrane, Kapuskasing, Hearst, Smooth Rock Falls and Hornepayne in October 1977. (12)

In August 1977, attention turned to civil trials. A special advisory committee on French language services in Ontario courts was established, composed of jurists designated by the Quebec Bar and the Law Society of Upper Canada. The Chairman was the Deputy Attorney General of Ontario. The committee was asked to consider means to facilitate access by francophones to Ontario's legal system and to recommend an appropriate framework to implement French legal services. The committee, which ultimately came to be composed of Ontario practitioners, proposed the introduction of French into the courts, but in a limited and discretionary manner, through three specific steps. First, by creating designated regions where the majority of francophones reside in Ontario, much along the lines suggested in the Royal Commission On Bilingualism and Bicuhuralism. Second, by establishing the absolute right of a French-speaking party to be heard by a bilingual judge or jury before the courts in the designated regions. Third, by conferring a discretion on the judge hearing the case to order such portions of the process to be conducted in French, including discovery and cross-examination of affidavits, as he determines caia be carried out "effectually'. The discretion would not extend however, to include written pleadings which were to continue to be in...

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