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Appellate Litigation


I first met KH at the Court of Appeal for Ontario on Wednesday, December 10, 2014. I was the assigned Amicus from Pro Bono Law Ontario whose task it was to assist self-represented persons with their civil or provincial regulatory matters. KH was a Morroccan immigrant and Canadian citizen whose first language was Arabic and whose second language was French.

It may have been fate our meeting on that day. Whereas KH was a member of the francophone minority community in Ontario, I was once a member of the anglophone minority community in Quebec. I attended both undergraduate studies and law school at McGill University in Montreal and worked for most of a summer in Quebec City during my twenties. While I had moved back to Ontario in December 2007, issues of language rights and bilingualism still remained on my mind.

Right from the start I could see there was a chance that KH might win leave to appeal. For those familiar with provincial offences, this is not an easy task. Generally speaking, a person accused of a provincial regulatory offence is first tried in the Ontario Court of Justice before a Justice of the Peace. Following a decision, an appeal lies to a Judge of the Ontario Court of Justice. Practically speaking, in most cases, this is the final avenue of appeal. However, section 131 of the Provincial Offences Act allows an applicant to seek leave to appeal to the Court of Appeal and to obtain leave so long as the applicant raises a question of pure law that affects the due administration of justice throughout the Province. Suffice to say, leave to appeal on provincial offences is rarely granted by our Court of Appeal.

In reviewing KH’s application materials, I could see that he had been tried in English in St. Catharines in 2012 on the offences of operating a motor vehicle without insurance and surrendering false evidence of insurance. KH had not been present in court at the trial but rather an agent of his paralegal had pleaded him guilty to the two offences. KH had appealed the decision to a Judge of the Ontario Court of Justice. He appeared in July 2014 as a self-represented appellant in the lower appeal court where he was assisted by a French language interpreter. At the appeal, KH insisted that he was innocent and that he had never instructed the paralegal or the paralegal’s agent to plead him guilty. He also told the court that he had asked for an appeal in French to explain the situation. The appeal court judge quickly dismissed the appeal.

There was something troubling to me about a francophone arguing an appeal in an English language court through a French interpreter. Simply put, under section 125 of the Courts of Justice Act, French is an official language of the Ontario courts. It is no greater nor lesser in value than the English language. All persons have the right to bilingual proceedings in this Province. Yet, when KH had indicated before the appeal court Judge that he had asked for an appeal in French, his appeal continued in English with a French language interpreter. Both the Crown and the Judge spoke only English at the appeal. The appeal court Judge had not asked the francophone appellant, KH, if he wished to pursue a bilingual appeal before a bilingual Judge and Crown.

In any event, it was not until January 7, 2015 that the leave to appeal hearing went ahead in French before the Court of Appeal. I advanced the position on behalf of KH that the applicant should have had a bilingual appeal in St. Catharines. As with section 530 of the Criminal Code, where Judges are required on a first appearance to advise an accused person in criminal matters of their right to French language proceedings (or English in Quebec), the provincial offences appeal Judge should have informed KH that he had the right to a fully bilingual appeal. As this had not happened, a miscarriage of justice had occurred. After hearing what amounted to well over one hour of submissions, the Honourable Madam Justice van Rensburg reserved decision.

On February 3, 2015, in a decision rendered in French, Madam Justice van Rensburg granted KH’s application for leave to appeal on the question of whether or not a francophone appellant has the right to a bilingual appeal after not requesting a bilingual trial: R c. Halich [2015] ONCA 76

The Long and Winding Road:

Within a week of the decision granting leave to appeal, I was further appointed as pro bono Amicus for the full appeal. The question of law was an exciting one and I immediately started working on perfecting the appeal. Right from the start there were issues. For one thing, even if we would go on to win the appeal, what was the remedy? Since the question in which leave to appeal was granted dealt with a possible violation of KH’s rights by the lower appeal court itself, it would appear that all that the Court of Appeal for Ontario could do if it found a language rights violation would be to remand the case back to the lower appeal court for a fresh appeal in French.

However, section 120 of the Provincial Offences Act did not provide the Court of Appeal with a right of remittance. The only remedies were to order a new trial, enter an acquittal, or uphold the conviction. While case law suggests that section 125 of the Provincial Offences Act allows for an appeal court to make ancillary orders in addition to those remedies listed in section 120, it would be hard to suggest that remitting a matter back to a lower appeal court is “ancillary” to a new trial or upholding a conviction. Even though there have been cases where the Court of Appeal had remitted matters back to the lower appeal court in provincial offences, none of those cases discussed where such a power could derive from.

My concern was this: what if we won the appeal but there was no statutory remedy?

With the Crown’s consent, a second leave to appeal hearing (done via an obscure motion for directions) was heard on March 25, 2015. The above dilemma was addressed before the Honourable Madam Justice van Rensburg in a non-adversarial setting. In order to bypass the issue above (albeit another fascinating question of law) it was agreed on consent that KH’s initial ground of appeal as heard and summarily dismissed before the lower appeal court, (i.e. ineffective assistance of his paralegal), could also be addressed by the panel. This way the panel hearing the appeal could potentially order a new trial.

Difficulties accessing justice:

And so it went on.

While I was and am deeply committed to pro bono work, this appeal was quickly becoming a daunting task for me and most of it was in my second language to boot! Fortunately a friend and former colleague from Montreal, lawyer Shaun Finn, now a class action lawyer at BCF LLP, provided me with support whenever I needed it on all matters related to language. With an expanded appeal, I had to do a full investigation of the issue of ineffective assistance of KH’s initial paralegal at trial. Accusing anyone of ineffective assistance is not a matter to be entered into without due diligence. There can, after all, be consequences to the legal professional’s career and reputation. Eventually, over the course of many months and stacks of affidavits, facta and books of authorities, we learned that the paralegal retained by KH had never actually spoken to his own client nor met him. The paralegal had only dealt with KH’s wife and no one had ever received instructions from KH to plead guilty. It was obvious to both the Crown and myself, that a new trial was necessary. And thus on February 3, 2016, a bilingual panel of the Court of Appeal for Ontario granted KH a new trial on consent (R c. Halich [2016] ONCA 102).

The Status of French in Ontario’s courts:

While the conclusion to this story might sound anticlimactic, since we never did argue the issue of whether or not a francophone appellant has the right to a bilingual appeal after an English trial in provincial offences matters (albeit I did draft a lengthy factum on this issue anyway), the process of investigating the ineffective assistance allegation had demonstrated many issues facing francophones in Ontario when accessing justice in their first language. The court file from St. Catharines showed that KH had appeared multiple times in 2013 and 2014 in the lower appeal court and proceedings could not go forward because the French language interpreter who had been booked did not appear. Further, there appeared to be no awareness on the part of the appeal court Judge in St. Catharines that a francophone appellant who appears with a French language interpreter probably ought to have a French language appeal. To suggest that a francophone is only entitled to an interpreter would further reinforce a dangerous concept, i.e. that French is a secondary language in Ontario. It would violate the principles of language equality. French is not a secondary language in Ontario but rather an equal language.

In the end what this case really taught me was this: the Courts of Justice Act and/or the Provincial Offences Act needs to be amended to include a provision similar to what exists in section 530 of the Criminal Code. That is, in provincial offences matters, Judges must inform an accused francophone that he or she has the right to a bilingual proceeding and not simply to an interpreter. While the Courts of Justice Act does indicate that French is an equal language in Ontario, if no one is aware of this, what is the benefit? Just as the Law Society has made efforts in recent years to impose a positive duty on members of the profession to inform francophones of their right to bilingual proceedings, so too should this positive obligation be extended to Judges in our provincial offences courts. Only then will the French language truly be on equal footing with English in Ontario’s courts.

All of that said, winning KH a new trial would never have been possible without the existence of Pro Bono Law Ontario and the Amicus program at the Court of Appeal. Hopefully this program will continue to flourish and grow so that self-represented litigants who find themselves adrift in our legal system can find their way to shore.

Cameron Fiske is a lawyer at Milosevic Fiske LLP, a boutique law firm in Toronto that primarily focuses its practice on commercial litigation. He regularly volunteers to assist self-represented litigants in Civil Practice Court and at the Court of Appeal on behalf of Pro Bono Law Ontario. On May 18, 2016 Milosevic Fiske LLP received an award from Pro Bono Law Ontario for excellence in service to self-represented litigants.