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UNB Fredericton

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A conversation with Commissioner of Official Languages for New Brunswick, Shirley MacLean

In the latest episode of the UNB Law Podcast, Dean Marin sits down with Shirley MacLean, QC (LLB ’90), Commissioner of Official Languages for New Brunswick. The pair discuss MacLean’s influential decision to study French at Université Laval; her first four years as a lawyer in private practice and her eventual move to the Law Society of New Brunswick; the challenging work involved in her role as Registrar of Complaints; strategies lawyers can use to prevent complaints and how to respond if a complaint is filed; her role as Commissioner of Official Languages and the strengths of New Brunswick’s bilingualism; her response to criticism of bilingualism in the province, debunking myths, and promotional work; and advice on building a career outside of private practice. We hope you enjoy some of the highlights of their conversation.

Can you tell us a little bit about what you studied before going to law school?

After graduating with my political science degree, I really didn't know what I wanted to do. I had thought about going to law school, but there were a couple of friends of mine from StFX that were talking about going to Université Laval to learn French. I hummed and hawed about it, quite frankly, but then I decided as well to go to Quebec City to learn French—and everything that's happened in my career sort of stems from that period of time.

I studied what was a program called French for Non-francophones. I did a year and a half of that, and I also worked in Quebec City in the tourist industry. Following that, I went to work in Ottawa for a little while, and then, again, a number of us just really didn't know what we were going to do and worked some jobs and then finally made the decision to do something further in terms of education and applied to UNB Law.

Can you expand a bit on your decision to study French as an anglophone?

During the years that we were growing up, we saw the constitutional talks in Canada that led to the repatriation of the Constitution in 1982 and the Charter of Rights and Freedoms. With those constitutional negotiations came the butting of heads with René Lévesque and Pierre Trudeau—the push and pull of federal relations between Québec/Ottawa. I was really brought up with an understanding of the importance of the province of Québec to this country; the importance of the fact that we're a bilingual country. So, the desire was there on my part. I think you have to have the desire to do it, but you also have to have the means. I didn't come from a family that had a lot of money, and I worked every summer because I needed to have the funds to go to university. But there were bursary programs that were very good, that enabled students such as ourselves to go to Laval and be able to study French and be able to do so with a small part-time job.

What was behind your decision to attend UNB Law?

I had thought about it in the past. You have the idealistic views in your mind of things that you can do as a lawyer—you can help people potentially. It just seemed to me something I would be interested in. My brother had gone to law school at Dal, and he survived it, so I thought, well, I could probably do it too. I was always attracted to New Brunswick, again, knowing it was a bilingual province. I thought perhaps there would be more opportunities there for me to be able to use my French because I had recently learned it—if I wasn't going to use it, I was going to lose it.

Let's talk about your first few years as a lawyer. You started in private practice in Fredericton. Can you tell us a little bit about what that was like?

I always wanted to do some litigation, and in a large firm, as you know, when you're starting out, you're not going to be doing a lot of litigation. You're going to be doing research and that type of thing. It's a business; you learn that it's a business; you have to learn that business. I was able to do other [types of work] because I was bilingual. I was able to do some contract work as a Crown Prosecutor—in terms of taking on some smaller files because I hadn’t been out very long. But initially, I practiced mainly real estate, labor, some criminal, wills and estates. One thing I found about working at a larger firm as well is that I got to work on some different, interesting files that you might not in a smaller firm because they would attract, perhaps, a larger institutional client. I got to work on some interesting opinions and things like that, so it was a very interesting, very busy four years.

You spent a great deal of your career at the Law Society of New Brunswick, where you eventually became the Registrar of Complaints. What motivated you in that role? Why did you feel that role was so important to you?

Professional regulation is interesting. My favorite course in law school was administrative law—and that's admin law in its purest form. There were a few cases obviously that were more difficult than others, but I'd have to treat each complaint sort of dispassionately—protection of the public was important. It was interesting work. Quite frankly, you never knew what was going to come from one day to the next. The executive director, Marc Richard, would often say, “we’ve kind of seen it all; nothing surprises me anymore.” Well, there were still days I’d be surprised.

We have mechanisms in place—or had mechanisms in place—such as a compensation fund that members pay into to assist people who suffer losses. Often, we hear about when doctors are suspended, or they go off into the sunset. Patients look for their file. When, for example, the sole practitioner is suspended, they appoint someone to take over those files, and to contact those clients and make sure that the files are transferred. So, there's an element of assisting the public in a very real way. There are also situations where you're assisting members. When I talk about mental health stream in terms of professional regulation, there are cases where you don't throw the rock to the member, you have to throw the rope—those are important cases too.

It's difficult work. We'd have national discipline administrators' meetings annually. We had colleagues, one time, that were doing a presentation with respect to a member. There was a defalcation, and the member committed suicide. When they were presenting that to us, they were crying. They would know that member. These are difficult files. Sometimes it results in the end of a career—you're taking a professional license from them. But oftentimes, there's hope at the end of that too. I've seen situations where the day a situation came apart for the member—the lies fell apart—it was also the best day of that person's life. I think because at that point, the truth was being revealed, and all of that was gone for them so and you can move forward.

Are there any sort of patterns or common triggers that emerge when a lawyer gets in trouble? Is there anything that we could do better in terms of preventing those things from happening?

I think across the country my colleagues will say communication. That's the major area where things arise—from lack of communication with clients. There are other issues with respect to competence. In my later years, I was seeing more of an issue in terms of being competent to do the job. I would see more and more often members that were doing things that they did not have the legal skills to do, and no fear around that.

If you have a file on your desk that you just don't want to touch—and we all have them—the one that you want to do last and sort of sits in the corner. You’ve got to do that one first. That's [the one] that can come back to bite you, and if it's bothering you, there's a reason.

Can you tell us about your current role as Commissioner of Official Languages? How you see your mandate and what your priorities are?

Officially the mandate is to investigate. [The role is] sort of the “watchdog” and the “promoter.” The watchdog, to investigate complaints and make recommendations to government about meeting their obligations under the Official Languages Act, and also to promote both official languages in the province. When I applied for the job, my emphasis was on education. I personally see it being a great asset that we're a bilingual province. Sometimes you hear in the political discourse negativity around that, and my feeling was, when I applied for the job, that education really is the key—to talk a little bit to New Brunswickers about the positive aspects of bilingualism.

What are some of the positive aspects of New Brunswick’s bilingualism in your mind? 

I think we've got a different culture here than other provinces, in terms of Acadian or Brayon culture and music. We have more mutual respect because of the fact that we're a bilingual province. I think it's an asset in terms of economic development—we do attract business to New Brunswick because we are a bilingual province. We do have companies that set up offices here because we're bilingual. We do attract immigrants to New Brunswick because we're bilingual. There's actually a higher rate of retention of francophone or Francophile immigrants in New Brunswick than non-francophone immigrants. Overall, it's a positive thing. We have a bilingual province, where we have more of an open mind, [are] more open for business, and more open for acceptance of other people.

The Official Languages Act seems to provide fairly comprehensive language rights, but how are we doing in terms of actually putting them into practice are we living up to the promise of the Act?

There's always work to be done for sure. I think we've come a long way. It's important that your listeners understand the Official Languages Act sort of speaks to institutional bilingualism, [the Act] applies to government institutions, professional associations, not to private industry. I’m not going to consider a complaint from someone who says they didn't get service in the official language of their choice at Tim Horton’s. With government institutions, there are ongoing problems, but one of the things that struck me when I started in the position is that there certainly is buy-in. From government there's a keen understanding of what's required of them under the Official Languages Act. There's a desire to comply, but in some cases, it's difficult. Where the problems arise are often with the larger government machines, Service New Brunswick, that give us our licensing or frontline sort of services to the public, and then the health care system. There are more opportunities, the larger the body is, to not to be able to provide the service. So those are the institutions that I see sometimes [where] we're having more difficulty putting into practice. They're aware of it, they're always willing to work to improve, to try and put the recommendations in place, but sometimes it's difficult because the bilingual capacity isn't there, the staffing isn't there.

What do you tell New Brunswickers who have a feeling that official bilingualism has gone too far in our province? 

We get those types of complaints and comments, and I think a lot of what's around that are myths—today we call it fake news, I guess. “I can't get a government job because I’m not bilingual.” Actually, close to 60 percent of government positions are not bilingual positions. If you can give people correct information, that's really all you can do. My role will certainly be, as long as I’m here, to promote the positive aspects of [bilingualism] to take those myths that exist and debunk them, because there generally are myths.

What advice would you have for the law student who are looking for a career in something other than private practice? 

The first piece of advice is if you are interested in something else, recognize that. A lot of people feel that if they don't go [the private practice] route, you're somehow less—you haven't quite made it. Having a law degree gives you the capacity to think a certain way; it's a valuable degree. You have to leave your mind open to other possibilities because you may not think that you can do certain things, but it's seen as an asset with potential employers. You have to keep your mind open to those possibilities. Don't think that you have to go that route. I even have friends who are my age that I know should have done something else—they would have been a lot happier. But they felt this was what [they] had to do to be a successful lawyer. Keep an open mind and you can do some pretty interesting things. I say to my son, who is in his early twenties, you sort of stumble into things as you go through life to some extent. You'll do one thing and then a door opens—and you can't plan it all.

To watch the full conversation with Ms. MacLean, and other episodes including The Hon. Frank McKenna, Simone Cole, Lydia Bugden and Ian Putnam, please visit unb.ca/lawpodcast.

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