ARCHIVED - FEDERAL CROWN AGENTS IN NEW BRUNSWICK

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3.1 Appointment of agents and information available to them about language rights

The appointments coordinator in the Department of Justice in Ottawa maintains an up-to-date list of lawyers who are available to act, on an ad hoc basis, as federal Crown agents in both civil and criminal cases. Inclusion on this list is a prerogative of the federal government (specifically, of the Minister of Justice). In this regard, the Department of Justice has informed us that the names appearing on this list have always been checked in advance by the Minister of Justice’s office. However, if a client department proposes the appointment of a lawyer whose name does not appear on this list, the proposal can also be submitted on an ad hoc basis to the Minister’s office for checking and possible approval.

  The Halifax regional office of the Department of Justice has general responsibilities regarding the appointment and management of Crown agents who act for the Department in the province of New Brunswick. However, the manner in which Crown agents are selected to act in any given case varies as a function of its civil or criminal nature.

A) CIVIL CASES

In civil cases, the head office of the Department of Justice in Ottawa chooses the lawyer who will represent the federal interest, after considering the case requirements transmitted to it by its Halifax office. These requirements constitute the particulars of any given case, assembled by government departments or other federal institutions which are, or may become, involved in court proceedings and have sought the advice and assistance of the Halifax regional office of the Department of Justice. The Halifax office relies on its client departments to report the official language needs of any given case, and this information is included in the case requirements sent to Ottawa.

  Once one or more legal counsel have been identified by the head office as potentially able to act in a given case, based on the list of lawyers available on an ad hoc basis established by the appointments coordinator, the regional office makes inquiries to confirm availability. If availability is confirmed, the regional office prepares a letter of appointment setting out specific instructions with respect to the particular mandate assigned to the legal counsel and indicating what types of reports and information should be transmitted to the Halifax office throughout the course of the legal proceedings. Included with the letter is a document entitled General Instructions to All Crown Agents (Instructions). Point 18 of these instructions states:

Crown agents must ensure that the following provisions are undertaken concerning both official languages in all locations in Canada:

Proceedings before Courts, Commissions and other bodies:

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 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.

When the Crown initiates proceedings that result in an advertisement being published (or legal notices are otherwise published by the Crown) the agent must ensure that such notices are published in a bilingual format. If assistance is required, agents are requested to contact the instructing officer or Justice Regional Office.

The Instructions make no distinction as to the province where a Crown agent works. However, the phrase “where proceedings or pleadings may be conducted in either official language” effectively incorporates a variable into the scope of an agent’s official language obligations, based on province of practice. The right to use both English and French before the courts in Canada varies considerably from one province to the next, as a function of constitutional guarantees and specific statutory provisions enacted by various provinces10. (The impact this has in the province of New Brunswick will be discussed below.) Accordingly, proceedings may, depending on the provincial legislation, be conducted in either official language before provincial courts. This does not necessarily mean that federal language provisions apply or, conversely, that they do not apply. Without necessarily making separate instructions for each province and bearing in mind the fact that these instructions are, as the Department of Justice informed us, national in scope, it would, however, be preferable to specify that, regardless of the provincial right, federal language obligations should always be respected when applicable.

  With respect to civil matters, the Instructions are also vague, unlike the instructions on criminal matters, regarding what steps should be taken to ensure that a file is transferred to another agent in accordance with the preferred official language of private parties. On a perusal of the Instructions, it would appear that the statutory duties of the Department to ensure that applicable language rights are respected have been transferred, in civil matters, to Crown agents.

  There does not appear to be any requirement to notify the Department of Justice of the need to transfer a file because of the preferred official language of the private parties. The Deputy Minister of Justice, in his letter of October 1999 responding to the draft of this study, wrote that “it must be borne in mind that one agent does not have the authority to transfer a file to another agent,” that “only the Minister of Justice may make an appointment,” and that consequently, “when an agent finds it impossible to act in any file, whether for linguistic or other reasons, the agent has no choice but to contact the Department of Justice to have the file transferred to another agent” [our translation]. There is, however, no obligation of this kind included in the Instructions as regards civil matters. If the intention is to make agents responsible for notifying the Department in this regard, the Instructions should expressly provide for this with respect to civil matters, as they do with respect to criminal matters. This would ensure that, in all cases, the Department of Justice could be informed and could put procedures in place to appoint another agent if necessary.

B) CRIMINAL CASES

With respect to criminal cases, the Department of Justice maintains, in addition to the list of lawyers available on an occasional basis, an up to date list of standing Crown agents for New Brunswick. These agents are appointed by letter signed by the regional office on the advice of the Minister of Justice. The letter of appointment indicates the federal statutes under which the Crown agent is authorized to prosecute and the region within which the authorization is effective. The letter also identifies a supervisor within the Halifax regional office to whom the Crown agent reports. Among other things, the supervisor is responsible to monitor the work of the Crown agent, keep him or her abreast of Justice Department policy, and provide advice and assistance where required. It should be noted that, when the lawyer is hired on an occasional basis, the details of the case are included in the specific letter of appointment.

  In general, appointment is governed by a document entitled Terms and Conditions of Appointment for Legal Agents for Standing and Ad Hoc Criminal Appointments (hereinafter Conditions of Appointment). When we conducted this investigation, this document, unfortunately, existed only in English. It seems, however, that in revising the document, the Department has prepared both an English and a French version. We have not yet obtained a copy of the revised document, however, since the revision process is not complete. The version of these Conditions of Appointment currently in force, which we examined, includes a reminder that the appointment “is at the pleasure of the Minister of Justice and Attorney General of Canada and may be terminated at any time.”

  Also included in the standard Conditions of Appointment (amended in 1998) is a reference to the impact of the OLA and language rights found in Part XVII of the Criminal Code. Paragraph 3.4.1 of the Conditions of Appointment provides:

In proceedings before courts, tribunals, commissions and other bodies where proceedings may be conducted and pleadings or process issued in either official language, legal agents should use the official language chosen by the private party or parties concerned in both oral and written pleadings.

Where a legal agent initiates communications or proceedings on behalf of the Crown and the language preference of the other party or parties is known, that official language should normally be used. Where any legal notice is required to be published it must be in bilingual format.

With respect to criminal proceedings, the same paragraph of the Conditions of Appointment reminds Crown agents that “Part XVII of the Criminal Code on the language rights of the accused and subsection 841(3) on bilingual forms are especially important.” It also underscores what legal agents are required to do when it becomes necessary to assign the case to another agent. They must ensure:

… where the accused has elected under section 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, that Crown counsel also speaks the language of the accused (the Agent Supervisor should immediately be advised where any of the above duties would require that the case be referred to another agent) … .

The Conditions of Appointment also contain provisions (added in 1998) that address the issue of communications with the public. Paragraph 3.4.2 provides:

The legal agent must be able to provide services and communications (such as correspondence and telephone calls) in the official language of the parties and the Agent Supervisor must be notified immediately if a legal agent is unable to provide those services or if the legal agent requires assistance in preparing a legal notice in bilingual format. In addition, any member of the public, apart from the parties and counsel to a given case, has the right to communicate with the legal agent in the official language of their choice, both in oral and written communications.

The same paragraph also establishes the principle that “if the matter is referred to the Agent Supervisor, it must be done in a fashion that ensures that the quality and expediency of service provided are comparable, whether it is offered in English or French.” While this part of the paragraph is vague, it would seem to envisage the transfer back to a regional office of the Department of Justice of requests for information or services from the public in general.

  The same paragraph makes reference as well to the notion of an active offer of service in both official languages:

In all communications, the legal agent should alert the caller to the availability of services in either official language. For example, this may be accomplished by answering the telephone by identifying the legal agent’s firm in one official language and greeting the person in the other. The receptionist could answer by saying, “Firm name, bonjour.”

Paragraph 3.4.2 ends by referring the legal agent to Schedule J for further information regarding the OLA. Schedule J contains both a brief commentary and verbatim transcripts of provisions in Part XVII of the Criminal Code and relevant provisions of the OLA. With regard to the latter, the schedule explains the scope of provisions regarding communications and services provided by federal institutions or third parties acting on their behalf. It points out that the application of statutory and regulatory rules effectively establishes that “all regional offices of the Department of Justice, except for the office situated in Yellowknife, are located in regions where there is significant demand and where consequently they fall under the scope of application of s. 20 of the Charter and Part IV of the OLA.”

3.2 Agents’ knowledge of language rights

Interviews conducted with six Crown agents in New Brunswick suggested that the manner in which information regarding official languages was transmitted in the past to Crown agents may have been ineffective. Although all agents consulted were aware that an accused or civil litigant could request legal proceedings in either English or French, very few could identify legal and policy requirements regarding an active offer of service in either official language. There was also a tendency to link language rights in the administration of justice to the operation of provincial law and provincial rules of court, with little or no reference to requirements found in federal law. Regarding the prosecution of provincial offenses, the Official Languages Act of New Brunswick provides:

Subject to subsection (1), a person accused of an offence under an Act or a regulation of the Province, or a municipal by-law, has the right to have the proceedings conducted in the official language of his choice, and he shall be advised of the right by the presiding judge before his plea is taken11.

The New Brunswick Official Languages Act also recognizes the right of a party to civil litigation to be heard by a court that understands, without the need for translation, the official language in which he or she intends to proceed12. The rules of civil procedure require the use of specific bilingual forms when filing and serving notice of legal action that advise the defendant of the following:

    You are advised that:
    1. you are entitled to issue documents and present evidence in the proceeding in English or French or both;
    2. the applicant intends to proceed in the.............................language; and
    3. if you require the service of an interpreter at the hearing you must advise the clerk at least seven days before the hearing13.

While the above provisions regarding the conduct of provincial prosecutions effectively complement provisions in the Criminal Code of Canada (applicable only to federal prosecutions), those that apply to civil proceedings include no obligation similar to that found in the OLA requiring the federal Crown to use the official language of the other parties involved in civil litigation (before federal courts).

  This could very well lead to misapprehension respecting the policies of the federal Department of Justice that apply to its Crown agents in New Brunswick. For example, the Instructions for agents of the Attorney General of Canada (quoted above) provides 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.” Since both English and French may be used before all courts in New Brunswick (by virtue of provincial statute and the terms of the Constitution), it would follow that the duties set out in the Instructions apply to federal Crown agents in the province appearing before provincial courts. This would also be the case anywhere else in the country where either statutory law or the Constitution allows the use of either official language before provincial (as well as federal) courts, notably in Quebec, Ontario and Manitoba14. Consequently, the Instructions should instead specify that, regardless of provincial law, federal language obligations must always be respected when applicable.

3.3 Determining the language of file

In consultations with the Halifax regional office, we learned that the official language used in the preparation of a file submitted to it for review and consideration is determined by the client department or agency. It is assumed that measures have been taken by the client department or agency to identify the preferred official language of the individuals involved. Where the file involves a prosecution under a federal statute, the investigating officer (RCMP or other federal enforcement officer) prepares the background information to be forwarded to Justice officials.

  In civil matters, the majority of cases involve a federal department or agency responding to legal action in the role of defendant. As such, the official language in which legal action is commenced by the plaintiff would, presumably, accurately establish the language of the file and subsequent legal proceedings in civil cases. However, if the plaintiff is not aware of these language rights, he or she may not file the action in his or her preferred official language; hence the importance of active offer (see below, section 3.6 of this study).

  In criminal or quasi-criminal matters, there does not appear to be any formal process (such as the completion of a form) that is used by all federal investigating officers to establish the preferred official language of individuals subject to possible charges. The initial stages of an investigation begin, so it would seem, in the official language of the investigating officer. Where no obvious difficulties of comprehension are evident, the investigation simply proceeds without any further inquiries being made regarding the language preference of the individual or individuals involved. As a result, the official language in which an investigating officer normally works becomes the language of the file in the vast majority of cases.

  Given a high level of bilingualism among minority language speakers, it can be expected that a certain proportion of investigations conducted in the majority official language will not necessarily reflect accurately the official language preferences of the individuals involved. Lack of information, desire to resolve the matter quickly, or fear of receiving prejudicial treatment may all be factors that prevent an individual under investigation from expressing his or her official language preference.

  In a previous study dealing with the equitable use of English and French before the courts in Canada, we referred to procedures used by law enforcement officials in New Brunswick (in applying the Criminal Code) to identify the preferred official language of an accused person. We made the following observations:

At the level of law enforcement, police officers are expected to identify the language choice of accused persons and make any necessary summons returnable before an appropriate court capable of operating in the language chosen. Thus, where a crime or infraction occurs in a region in which one or more bilingual judges routinely sit, a summons will be made returnable before the court on a day when the presiding judge speaks the language of the accused. In regions where the minority language population is small, the summons is made returnable on the one or two days per month set aside to deal with cases in the minority language. The underlying aim of this policy is to ensure that accused persons make their first appearance before a judge who speaks their official language15.

The effectiveness of such a policy is of course dependent on the prosecuting counsel being bilingual as well. Our previous study found that the federal Crown is not always able to meet this requirement, no doubt due in part to deficiencies in administrative procedures used in assigning an appropriate Crown counsel or agent16. It is thus essential that effective procedures be in place to accurately determine the preferred official language of an accused charged with offences for which the federal Department of Justice has jurisdiction to prosecute.

  In this regard, the Department of Justice has informed us that one of its groups “is now working to develop recommendations … to consolidate language rights in the administration of justice in Canada,” that “these recommendations will be the end result of cross-Canada consultations conducted with the linguistic communities, your organization [the Office of the Commissioner of Official Languages], the provinces, territories, courts, bars and various other organizations, based on the working paper circulated by the Department of Justice in 1996 (Towards a Consolidation of Language Rights in the Administration of Justice in Canada) and the report published by your organization [the Office of the Commissioner] in 199517,” and that “should the recommendations made by the Department of Justice be accepted by the Minister of Justice and the Cabinet and then take the form of legislative amendments and program changes, some of the concerns that are expressed in the draft report [this study] might be addressed” [our translation]. The Department has not, however, specified a timetable in this regard. Therefore, pending such legislative amendments, there is no effective procedure for accurately determining, at the start of proceedings, the language of file.

  The frequency with which the language of file may not reflect the language preferences of the individuals faced with prosecution by federal officials cannot at present be accurately assessed by Justice officials at the Halifax regional office. As already pointed out, the Halifax office assumes that the official language in which a file is prepared and submitted will be the language in which legal procedures will be conducted. Given linguistic realities in New Brunswick, it is not unreasonable to presume that English will predominate as the language in which files are prepared. As a result, the possible under-representation of French as a language of file would have an impact on the perceived need to assign federal Crown agents able to speak it. Where the language preference of individuals subject to charges emerged at a later stage, the inability of the federal Crown agent acting for the prosecution to speak the other official language could interfere with the effective exercise of an accused person’s language rights.

3.4 File transfers

The possibility that a file will be assigned to a Crown agent unable to speak the preferred official language of an accused is foreseen in the standard Conditions of Appointment. As already mentioned, that document advises a Crown agent that where an accused elects to be tried before a judge (or judge and jury) who speaks his or her preferred official language, and the agent is unable to proceed in that language, the appropriate supervisor in the Halifax office should be informed to enable the case to be assigned to another agent.

  According to information received from the Halifax office, transfers to another Crown agent are rare; so much so that no recent case could be cited. It may very well be that inevitable delays (and hence increased legal expenses) which would be caused by a change of federal Crown agent work to convince individuals to forego their language rights under Part XVII of the Criminal Code. This is particularly true where plea bargaining may be a factor or where the accused is motivated to plead guilty in order to end the process expeditiously.

  Letters of appointment of standing agents may designate several lawyers within the same law firm. Where the official language preferred by an accused (and counsel) is not spoken by the Crown agent handling the case, a transfer can be made within the same law firm to another agent able to proceed in the official language of the accused. How often such intra-firm transfers occur has not been accurately assessed. Nevertheless, the Halifax regional office should be notified of transfers within the same law firm, according to the standard Conditions of Appointment. The rarity of such cases would tend to suggest either that such transfers seldom occur or that notice is not always transmitted to the appropriate Justice official in the Halifax office.

3.5 Language capabilities of standing agents in New Brunswick

As mentioned above, standing agents in New Brunswick are engaged by letter of appointment signed by Justice officials at the Halifax regional office. The list of current standing agents maintained by that office for criminal prosecutions in New Brunswick identifies a number of them as responsible for French-language cases in specific regions of the province, or capable of conducting prosecutions in either official language. Where the language used by an agent (or law firm) is not specified on the face of the list it is assumed, so we were informed, that only English-language cases would be assigned to them.

  It would appear that the appointment of bilingual federal Crown agents, or agents able to conduct proceedings in French, reflects the needs of each judicial district. These needs are apparently assessed as a function of past demand for proceedings in the minority official language. However, such demand may not be representative of needs. For example, it is clear that, if there is no agent on site who speaks the official language of the minority, there will be less demand for proceedings in the minority language. It should also be pointed out that some regions of New Brunswick (such as Edmundston) are majority French-speaking. In those regions the need to appoint Crown agents able to speak French is manifest. While it appears that English needs are assessed in such areas as a function of past demand, it is well known that legal counsel practising in districts such as Edmundston are virtually all bilingual and able to conduct legal procedures in English when required. However, in English-speaking regions where the French-speaking population is relatively small, the use of actual past demand for legal proceedings in French may not be an accurate assessment of the need for bilingual federal Crown agents.

  As mentioned above, institutional barriers to the use of the minority official language, such as the establishment of the file language by reference to the normal language of work used by federal investigators, may very well diminish the demand for the use of French in legal proceedings. Interviews with various Crown agents suggest that the regions of the province which may need an increase in the two-language capability of available Crown agents are Saint John and Fredericton. It is also our understanding that Crown agents from Moncton are periodically called upon to act in French-language proceedings in those two areas of the province.

3.6 Active offer of service in either official language

Where the use of the minority official language may be inhibited by social and institutional factors, it is important that active measures taken to inform members of the public that services from federal institutions are available in either official language. A passive approach to the public’s right to receive services from and communicate with federal institutions, and third parties acting on their behalf, will do little to overcome existing barriers.

  Interviews conducted with persons within the Halifax regional office and with selected federal Crown agents indicate that the use of the minority official language is most often dependent upon members of the public making their wishes clear. There does not appear to be any conscious effort to reach out actively and encourage members of the public to use their preferred official language. Widespread bilingualism among French speakers is a factor which may allow the use of English as a lingua franca and hence diminish the possibility of the equitable use of French in the administration of justice. Although definitive conclusions cannot be reached in this regard, the limited scope of active measures currently in place that promote two-language services and communications probably has a detrimental effect on the enhancement of French as a language of legal procedures.

  As stated at various junctures above, the Department of Justice has a duty to ensure that third parties acting on its behalf respect statutory provisions regarding the language of services and communications found in Part IV of the OLA. Seen as a functioning whole, the network of federal Crown agents operating in New Brunswick should be in a position to offer the same level of service in either official language as would be the case were those services offered directly by the Halifax regional office of the Department of Justice. This means that federal Crown agents should be managed in such a way as to fulfil the institutional obligations of the Department, including its duty to put in place an active offer of service in either official language. Concretely, at least the reception services of agents’ offices should be able to provide active offer of service in the two official languages when the agent has agreed to handle files in these two languages on behalf of the Department of Justice. While these obligations are legally distinct from provisions found in Part III of the OLA concerning legal proceedings in federal courts, they should be seen as complementary to the effective implementation of language rights in the administration of justice.

  Just as Part IV does not require all full-time Crown counsel in the federal Department of Justice to be bilingual, it does not require all standing Crown agents to be capable of providing legal services in either official language. However, it does impose on the Department the duty to ensure that its administrative procedures for selecting Crown agents to act on its behalf can respond effectively and accurately to the official language preferences of members of the public whom it serves. This would include an effective system of file transfers between standing agents, or agents acting on an ad hoc basis in civil cases, where official language preferences became clear after initial case assignments.

3.7 Language of communications between agents and the Department of Justice

An issue incidental to the appointment of federal Crown agents able to conduct legal proceedings in French, and relevant to the overall level of service offered in either official language by the Halifax regional office, is the question of ensuring that Crown agents are able to communicate with that office in their preferred official language and obtain documentation concerning their conditions of appointment in their preferred official language. Before completing the preliminary version of this report, we had noted a problem, since the Conditions of Appointment existed in English only. This problem seems to have been corrected, however, as we have been informed that the document, currently undergoing revision, now exists in both official languages. The Department should ensure, however, that Crown agents have the option of reading it in their preferred language. While this aspect of the relationship with the Department of Justice may be analogous to language of work issues, it should be remembered that the standard Conditions of Appointment incorporate the principle that, when communicating with the Department, agents may use the official language of their choice. Issues relevant to the conduct of proceedings in French which require communications with the regional office in Halifax would best be dealt with, ideally, in that language as well. We found that this issue is not currently taken into consideration by the Department. This is a further example of institutional barriers that can have the effect of inhibiting the use of the minority official language in the administration of justice.

 

 

10 See the study of the Office of the Commissioner, The Equitable Use of English and French Before the Courts in Canada, op. cit., Note 1.

11 See subsection 20 (1) of the Official Languages Act of New Brunswick, S.N.B., ch. 0-1.

12 Ibid. subsection 13 (1.2).

13 See Rule 4.08 of the New Brunswick Rules of Court and forms 16A and 16D.

14 See a previous study by the Office of the Commissioner entitled The Equitable Use of English and French Before the Courts in Canada, op. cit., Note 1.

15 See a previous study of the Office of the Commissioner, The Equitable Use of English and French Before the Courts in Canada, p. 28, op. cit., Note 1.

16 Ibid., p. 29, where the Commissioner’s predecessor, Dr. Goldbloom, made the following observation: The limited number of Crown counsel (both at the federal and provincial levels) able to speak the minority official language would appear to impose cost burdens on accused persons who wish to proceed in French at pre-trial appearances. This occurs because it is often necessary to order an adjournment of proceedings in order to give the prosecution the opportunity to replace unilingual Crown counsel by someone able to speak French. Facing the prospect of delay and the resultant increase of costs, a French-speaking accused is often persuaded to agree to proceed in English. As a result, many pre-trial proceedings take place in English even where accused and counsel would prefer to proceed in French. Such proceedings include those where the accused intends to plead guilty and thus would probably like the matter to be settled as quickly as possible.

17 The Equitable Use of English and French Before the Courts in Canada, op. cit., Note 1.

 

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