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1.1 Aim and purpose of this study

This study reviews the sufficiency of current administrative procedures applied by the federal Department of Justice in New Brunswick to ensure full compliance by Crown agents with official language obligations in the administration of justice. The need to conduct a study of the situation emerged in the course of a review, by our office, of problems brought to our attention (from both New Brunswick and Ontario) concerning difficulties encountered by accused persons or their representatives, and parties involved in civil procedures, in exercising language rights guaranteed under federal law and regulations. Although this study focuses on the province of New Brunswick, its general observations will no doubt have relevance to the manner in which the system of Crown agents is managed by the Department of Justice in other parts of the country.

In both civil and criminal matters, the federal Department of Justice periodically relies upon lawyers in private practice to act as official Crown agents. In essence, such agents provide professional services that would otherwise be provided by Crown counsel working full-time for the Department of Justice. In previous studies we made reference to the official language obligations of the federal Department of Justice, whether it operates by means of fulltime Crown counsel or by means of lawyers in private practice acting as Crown agents.1

In civil matters heard by federal courts, these obligations include the duty, under Part III of the Official Languages Act (OLA), to ensure that the official language used in oral and written pleadings by legal counsel representing a federal interest corresponds to that used by the other parties involved. With respect to criminal matters, full-time federal prosecutors, as well as Crown agents acting on behalf of the federal Department of Justice, are obliged to respect the official language rights of accused persons set out in Part XVII of the Criminal Code; i.e., the accused’s right to be tried in his or her own official language.

Previous studies by the Office of the Commissioner of Official Languages (Office of the Commissioner) also pointed out the relationship that exists between language rights applicable to the court process per se and the rights of members of the public to receive services from federal institutions, and to communicate with them, in their preferred official language2. As we then indicated, the right to engage the court process in either official language would be inhibited by an administrative framework unable to provide necessary ancillary services in both languages. This problem is also reflected in complaints that we have received dealing with the difficulties experienced by accused persons and their agents, as well as the parties in civil proceedings, in exercising their language rights.

1.2 Problems pertinent to this study brought to the attention of the Office of the Commissioner

Administrative deficiencies were initially alleged with regard to a complaint from Ontario. This complaint alleged that a Francophone accused and his legal counsel(who was informally assisting him) had experienced difficulties in communicating with and receiving a response in French from the Crown agent responsible for the prosecution. More specifically, a letter written in French to the Crown agent by legal counsel informally representing the accused, detailing the failure of the docket court to inform the accused of his language rights under Part XVII of the Criminal Code, resulted in the Crown agent sending a letter written in English to both the accused and legal counsel who had intervened on his behalf.

Our investigation of this complaint showed that there had been a lack of comprehension of the language rights of the accused under the Criminal Code, as well as a failure to respect provisions in the OLA regarding the right of a member of the public to receive communications in either official language wherever reasonable demand exists. With respect to the latter, section 22 of the OLA and the Official Languages (Communications with and Services to the Public) Regulations3 oblige the regional office of the Department of Justice, which has administrative responsibilities within the area where the case arose, to provide services to and communicate with the public in either official language. While the regional office was not itself directly involved in the disputed communications, section 25 of the OLA was clearly applicable to persons acting on its behalf:

Every federal institution has the duty to ensure that, where services are provided or made available by another person or organization on its behalf, any member of the public in Canada or elsewhere can communicate with and obtain those services from that person or organization in either official language in any case where those services, if provided by the institution, would be required under this Part to be provided in either official language.

In response to our investigation and report to it, the federal Department of Justice agreed that a letter addressed in French to a Crown agent acting on its behalf in the area where this particular case arose should have received a response in French in accordance with the provisions of section 25 of the OLA.

The Department also wrote to the agent in question to remind him of official language obligations and to draw his attention to directions contained in a document entitled General Instructions to All Crown Agents. While the latter document purportedly included instructions regarding the scope of section 25 of the OLA, our examination of it revealed no such reference. The Commissioner therefore recommended that in future all Crown agents acting on behalf of the Department be informed more formally of legal requirements regarding the provision of services to and communications with the public in both official languages.

In August 1997 the Commissioner was informed by letter that the Department of Justice was in the process of revising the Terms and Conditions of Appointment of Crown Agents and that specific reference to the requirements of section 25 of the OLA would be included. In the spring of 1999, representatives of the Department of Justice informed us that an initial revision of this document had been made, but that the question of section 25 of the OLA had not yet been dealt with. More recently, in his letter of October in reply to our request for comments on the draft of this study, the Deputy Minister of Justice reiterated that his Department expected to complete these revisions in November 1999 and that he would forward us a copy of this document. As we finalized this study, we had not yet received a copy of the document.

During the period when the complaint from Ontario was being examined, our Office was also reviewing similar complaints received from New Brunswick. Representations made to the Commissioner by the Association des juristes d’expression française du Nouveau-Brunswick indicated that there may also be administrative inadequacies with respect to the ability of federal Crown agents in that province to respond appropriately to demands for services and communications in the preferred official language of members of the public. Moreover, the manner in which French is accommodated as a language of procedure at all stages of court processes raised concerns relevant to the full respect and implementation of language rights under Part XVII of the Criminal Code. In light of such representations, and our investigation of the complaint from Ontario, we undertook to review the existing framework within which federal Crown agents in New Brunswick are managed, the means by which official language obligations of the federal Department of Justice are integrated into that framework, and the current capacity of federal Crown agents in New Brunswick as a whole to respond to the use of both official languages in criminal and civil procedures.

1.3 Gathering information for this study

In order to gain an understanding of the manner in which the system of federal Crown agents operates in New Brunswick, we consulted a number of legal counsel: three French-speaking lawyers who practise most of the time in French (although all indicated they were bilingual and were able to conduct legal proceedings in English) and three English-speaking lawyers (who are not bilingual and practice law exclusively in English). All six lawyers currently act as Crown agents or have so acted in the past. While the interviews conducted do not permit us to draw definitive conclusions regarding the degree to which members of the public can receive legal services in either official language from federal Crown agents across the province, they provide useful insights into administrative procedures now in place. Interviews were also conducted with three fulltime legal counsel at the Halifax regional office of the Department of Justice, which has management responsibilities with respect to Crown agents operating in the Atlantic provinces.

After analyzing the information received, we prepared a draft of this study and forwarded it to Justice Canada in September 1999 to obtain the Department’s comments. The Deputy Minister of Justice responded to us in October 1999 in a letter in which he assured us that “the Department of Justice remains committed to respecting the right of the public to communicate with agents of the Department in either official language” and that his “Department takes seriously the right of an accused person that the plaintiff speak the same language as he, as well as the right of parties to proceedings before a court subject to section 18 of the OLA” [our translation]. He also included some specific comments, which we took into account when finalizing this study.

 

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