Yes, I can.
I'm here today to describe to you how the provisions under study were implemented on the ground.
Currently, I am the Head of the Executive Secretariat Directorate of the Office of the Director of Public Prosecutions. This position includes the duties of both a federal prosecutor and national secretary of the Federal/Provincial/Territorial Heads of Prosecutions Committee.
Prior to December 2006, which is to say when our service was separated from the Department of Justice and established as an independent organization, I was a special advisor and I held a position that was roughly the equivalent of this one. During the 10 years before that, from 1987 to 1998, I was a defence counsel in Ontario, and my client base was almost entirely made up of francophones. That means that for those 10 years, I was in court almost every day, both before and after the Criminal Code provisions under study came into force. I worked in almost every region in the province, almost always in French, which is the language of the minority in that province.
After being crown prosecutor, I became the national secretary for the Federal/Provincial/Territorial Heads of Prosecutions Committee. This committee includes the heads of Canadian prosecution services. It must be specified that criminal proceedings are under shared jurisdiction. Offences under the Criminal Code, such as murder, offences committed under the influence, theft, rape and sexual assaults, are prosecuted by the provinces, whereas the federal offences are prosecuted by the Public Prosecution Service of Canada.
This committee includes 12 people: the heads of prosecution for each province, the Director of Criminal Prosecution in Canada and the Director of Military Prosecutions. The committee meets twice a year for two or three days. During these meetings, certain provisions are studied, in light of the problems that come up during practice. Obviously, some of the committee's observations were reflected in the 2008 amendments.
I have a few comments to share with you based on this experience.
I'll start by talking about the hesitation that people feel when they are accused.
A person charged with a criminal offence is understandably very anxious. That person wants the most favourable result, which for that person means an acquittal, or at least a withdrawal or a stay of the charge. That person wants that result to occur quickly and that person wants the best legal help possible to get out of the mess.
Therein lies the first hurdle faced in implementing these provisions. Whether or not an accused from a minority language community is aware of his or her linguistic rights under section 530, these rights are often subsumed to the emergency of avoiding a conviction. If exercising these rights means not availing oneself of the assistance of top counsel because the best do not speak the official language of the accused, then these rights will not be invoked. If exercising these rights means obtaining a later trial or hearing date, then they also may not be invoked, particularly and understandably with respect to obtaining bail. Likewise, if the accused perceives—wrongly, generally—that invoking these rights will somehow annoy or anger the judicial officials, he or she will not strive to assert them.
There's also the arrest process itself, where rights are read to the suspect and a list of counsel is shown, which is a situation that is not technically covered by these provisions. Thus, an accused person might retain unilingual counsel even before subsection 530(3) is applied and the accused is informed by the court of his or her right to trial in his or her language.
The second problem is that of informing the accused of the provisions.
Subsection 530(3) indicates that the accused must be advised of their right to undergo a trial in their language and it is the justice of the peace or the judge of the provincial court who must inform the accused of this right. The 2008 amendments attempted to better define this requirement, but difficulties persist. Ontario serves as an example of this, because in light of what I heard at the table of the heads of prosecution, and in light of the discussions held by the Subcommittee on Official Languages, one can conclude that Ontario is a microcosm of Canada. I will therefore use my experience in Ontario to better illustrate the situation.
Some of Ontario's regions, just like other regions in Canada, are mostly francophone. The court must advise the accused that he has the right to undergo his trial in his official language, but in fact, this notice is not given. In any case, the accused comes before the court, and there is a constant back and forth between both languages. In Moncton, in L'Orignal, in Hawkesbury and in other locations in northern Ontario, judges and prosecutors are all bilingual, as well as most of the members of the defence counsel, to varying degrees. The trial date is then set, and the accused is guaranteed to have their trial in either English or French.
Other regions are mostly anglophone, but there is a significant francophone presence. That's the case in Ottawa and in Sudbury, for example. Justices of the peace are therefore sensitive to their local reality and will usually issue the advisory.
However, some regions are almost exclusively anglophone. That means that the judges don't usually see a lot of francophones come before their court. It happens once or twice a year, or even less. In these circumstances, judges may forget to issue the advisory to a francophone who stands accused, particularly if the accused initially speaks English with relative ease.
It will nonetheless be difficult to predict the consequences of the growing use of video links, which is starting to become quite widespread. Indeed, Alberta is deploying a complete system which will allow the initial appearances to be conducted at the accused's location, particularly if they are detained. Because the system will be centralized, it will be easier to implement a system where a justice of the peace and a prosecutor can speak the language of the defendant.
Finally, the third problem involves informing the judiciary and the bar.
All judges are aware of the provisions relating to language rights in the code. In provinces like Ontario and New Brunswick there's also provincial legislation that buttresses these rights by reinforcing the knowledge in the provisions in the Provincial Offences Act or in the Courts of Justice Act. Nevertheless, when minority language accused appearing before a court are few and far between, or where they're represented by counsel who speak only the majority language, or where, increasingly, accused are unrepresented but speak the majority language fluently, thus not making the judge aware of their minority status, then the judge may not be reminded of the need to inform the accused of his or her rights pursuant to subsection 530(3).
The Public Prosecution Service of Canada, in its policy manual, has a provision that requires our prosecutors—and Ontario and New Brunswick have similar provisions as well—to, if the court forgets, remind the court that the accused should be advised of his or her right to have the trial in the minority language.
The issue of not remembering to give the notice under 530(3) was flagged by the Ontario FLS Bench and Bar Advisory Committee report in 2012, a very extensive report that was written by Ontario Court of Appeal Justice Paul Rouleau and defence counsel Paul Le Vay. They had hearings and they researched the subject for almost two years. It mentioned that problem as well. So despite the 2008 amendments, there still remain situations in those areas where the minority language is virtually absent, both because of the census data and the fact there are just a few people from the minority community who are charged with offences. Because of that, section 530(3) seems to fall between the cracks and there's no notice given.
That, of course, is not entirely the courts' fault because sometimes an accused person—as does Ms. Soublière or myself, and as you'll notice, Mr. Francoeur shortly—doesn't speak English with a French accent or has a very slight French accent, and as a result, it's not obvious that we may require a trial in the French language.
In the end, the wait period for a trial requested under part XVII depends on the local reality. In regions where there is a francophone majority, there is no wait time for a request to have the proceedings held in French. In regions where there is an anglophone majority with a strong francophone presence, such as Ottawa and Sudbury, there are no additional waiting times either. In regions with an anglophone majority and very few francophones, there may be a delay because often they have to bring in people from a bilingual region, including the judge, the crown prosecutor and the clerk in order to hold the proceedings in French. This problem may be exacerbated if the defendant requests a trial by jury, because there are obviously some regions in Canada where there are very few francophone residents who can sit on a jury.
Moreover, the Association des juristes d'expression française de la Colombie-Britannique carried out a fairly exhaustive study in 2006 on how things work in the other provinces as well. This study revealed to what extent requesting a trial by jury in French can cause problems in certain regions of this province. This situation was also mentioned by the heads of prosecution. Two years ago, the Assistant Deputy Attorney General of British Columbia mentioned to the heads of prosecution that people were starting to deliberately request trials by jury in French, knowing that the system might not be able to honour the request.
The adoption of part XVII encouraged judicial administrations to pursue litigants' rights. Therefore, all the provinces have judges who speak the minority language at all levels of the courts. That is the case for all provinces with the exception of one, which made arrangements. Legally, the availability of a francophone crown prosecutor can be guaranteed anywhere in the country. All of the provinces have this ability except Prince Edward Island, who has made arrangements with New Brunswick and our service to provide them with bilingual crown prosecutors if such a request is made.
I will conclude by saying that the Public Prosecution Service of Canada will continue to work with the provinces to ensure that these rights in the context of a trial are respected in the full sense of the word.
Thank you for your attention.