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Consultations conducted in the course of preparing this study, and documents reviewed that were supplied by the Department of Justice, suggest a number of areas where improvements in administrative arrangements would help ensure the delivery of legal services in either official language. These relate primarily to institutional barriers which may in effect conceal the true preferences of individuals with respect to the official language in which legal procedures should be conducted and ancillary services offered.

Regarding standing Crown agents engaged by the Department, we have underscored the importance of an early identification of the language preference of persons under investigation. This necessarily involves active steps being taken when a file is being developed to establish the official language in which an individual wishes the process to be conducted. Given the broad range of federal government departments and agencies involved, the Department of Justice could play a useful coordinating role in ensuring that appropriate inquiries are made by client departments to determine accurately the official language preferences of individuals against whom legal proceedings are contemplated. By requiring that this information and the manner in which it was gathered be clearly indicated on any file submitted to it for consideration, the Department would be in a better position to take into account official language requirements in the selection of Crown agents.

As it now stands, the Department assumes that the language of file (which may very well reflect the language preferences of investigating officials rather than those of individuals under investigation) will be the language in which legal proceedings will be conducted. This could have the effect of underestimating the potential for minority language proceedings. Armed with more accurate information gathered at an early stage of investigation (for example, by means of a form dealing, at the start of the procedure, with the issue of language), the Department could better ensure that Crown agents appearing on its behalf possess the language capabilities necessary to respond to anticipated demand.

In addition to early identification of language preference, Crown agents need to be fully apprised of official language rights and responsibilities. As noted above, in the most recent amendment by the Department of Justice to the Conditions of Appointment of Crown agents, such agents are informed that they are to ensure that “in proceedings before courts of criminal jurisdiction, where the accused has elected under s. 530 of the Criminal Code to be tried before a judge (or a judge and jury) who speaks the official language that is the language of the accused, Crown counsel also speaks the language of the accused (the Agent Supervisor should immediately be advised where this would require … the case be referred to another agent).” The Conditions of Appointment also now emphasize the responsibilities of Crown agents to provide services (such as correspondence and telephone calls) in the official language of the parties and to inform the Agent Supervisor immediately if such responsibilities cannot be fulfilled.

Where files are carefully assigned according to the official language preferences of accused persons, and Crown agents are apprised of the importance of early notification to the regional office of anticipated problems in respecting the full range of language rights, the Department of Justice is in a better position to ensure that the requirements of section 25 of the OLA are fully implemented. Indeed, it is only through the implementation of measures of this sort that the Halifax regional office will be able to assess accurately its human resources needs in the various geographical regions under its jurisdiction.

With respect to the civil process in New Brunswick involving the federal Crown, an early and accurate identification of the language preferences of individuals is obviously important, especially when the federal Crown acts as the plaintiff. Where the federal Crown is responding to legal action taken against it (i.e., acts as the defendant), the official language in which the plaintiff engages the process is clear from the beginning. This is true whether a case is brought before a federal or provincial court.

As explained earlier, both English and French have official status before all courts in the province of New Brunswick by virtue of the Constitution and of provincial statutory law. This fact makes it important that the Department of Justice explain the impact of information on federal official languages legislation contained in the Instructions to Crown agents engaged to conduct civil cases in the province.

At present, that document instructs Crown agents that “where proceedings or pleadings may be conducted in either official language, the language used by Crown counsel should normally be the official language chosen by the private party(ies) concerned. If this requires that the case be referred to another agent, steps should be taken to do so. In cases where the Crown initiates communications, and the language preferred by the private party is known to the agent, that official language should be used at all times, even prior to the commencement of proceedings.” Since the introductory condition of these Instructions is met in New Brunswick, i.e., since either official language may be used before any court in New Brunswick (under provincial legislative provisions and constitutional provisions), it can be concluded that the Instructions apply to Crown agents who appear in provincial courts. These Instructions apply when Part XVII of the Criminal Code is operative and in civil cases before a federal court. Consequently, the Instructions should instead specify that federal language obligations must be respected by agents when they are applicable.

The legal and policy requirements to use the official language of private parties naturally raise the issue of file transfers in the event that such requirements cannot be met. Currently the Instructions on civil matters direct only that, where an agent is unable to use the official language of the private parties, steps should be taken to see that the case is transferred to another agent. Rather than leave the responsibility for file transfers to the Crown agent, it would be more appropriate, as stated in the Instructions on criminal matters, that the Instructions on civil matters also clearly instruct agents that they must notify the regional office in a timely fashion so that it, in turn, can take the steps necessary to have the case transferred to another agent.

At present, it does not appear that counsel hired on an ad hoc basis to conduct civil cases are informed of the Department’s legal duties respecting communications with and services to the public. Detailed information in this regard is provided to standing agents hired for criminal prosecutions (as contained in the standard Conditions of Appointment), and it would seem appropriate that the same information be made available to Crown agents acting for the Department in civil cases. In this regard, the Department of Justice has informed us that the “Civil Litigation Deskbook may be revised, in whole or in part,” and that those responsible might examine “the advisability of making certain clarifications to the Instructions in this regard” [our translation]. These clarifications should, in our opinion, include a reference to enable agents to communicate with the Department of Justice in their preferred official language and also to obtain pertinent documentation in that language.

We have noted the information that the Department of Justice sent to us to the effect that it is currently revising the Instructions and the Conditions of Appointment with which we dealt in this study. We hope that the comments and recommendations we made in their regard will be taken into account in the revision which is already under way.

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