Environmental Scan: Access to Justice in Both Official Languages

Chapter 13: Newfoundland and Labrador

Structure of the Judicial System

Judicature

Superior Courts

The Newfoundland and Labrador Judicature Act[101] establishes a superior court called The Supreme Court of Newfoundland and Labrador. That Court is divided into two sections:

  • an appeal division, called the Court of Appeal and
  • the Trial Division.

The Court of Appeal sits in St. John's.

As well, the Unified Family Court Act[102] establishes the Unified Family Court, a division of the Supreme Court.[103] However, that Court sits only in St. John's.[104] Elsewhere in the province, the Trial Division has jurisdiction in family law matters, including divorce, matrimonial property and child custody. However, we do note that the Provincial Court (Family Division) has jurisdiction in certain areas of family law.

Provincial Courts

The Newfoundland and Labrador Provincial Court Act, 1991[105] establishes the Provincial Court of Newfoundland and Labrador. That Court essentially exercises the criminal and quasi-criminal jurisdiction of the province. The Provincial Court has jurisdiction over any matter relating to young offenders.

The Provincial Court (Family Division) has jurisdiction in certain areas relating to family law, including marriage, support, paternity and adoption. However, in St. John's, the Unified Family Court has jurisdiction in all areas of family law.Under the Small Claims Act,[106] the judges of the Provincial Court are responsible for administering the Act. When a judge hearing a case under the Small Claims Act determines that the case exceeds his jurisdiction (under the criteria set out in the Small Claims Act), he must transfer the case to the Trial Division.

Constitutional Obligations

There is no constitutional obligation to provide services in French in Newfoundland and Labrador.

Provincial Legislation

With the exception of section 530 of the Criminal Code, there are no specific statutory provisions that apply to language in the province of Newfoundland and Labrador.

Profile of the Francophone Community[107]

Demographics

The population of Newfoundland and Labrador is very homogeneous with regard to language. Of the province's 547,160 inhabitants, 98.5% have English as their mother tongue. Francophones make up 0.4% of the total population (according to the 1996 census).

The francophone population of Newfoundland and Labrador grew between 1951 and 1971, then declined, then slowly increased, and then once again declined. Over the last five years, the number of francophones decreased from 2,855 to 2,440. These fluctuations are not surprising since, at certain times during this period, many people from Quebec worked in Labrador for a short time, and many Newfoundlanders left the province to find work.

Geography

Francophones in Newfoundland and Labrador are concentrated in three principal centres: the Port au Port Peninsula, St. John's and its surrounding areas, and Labrador. These three centres are of comparable size, each having between 600 and 700 francophone residents.

Economy

The province has about 150 entrepreneurs who are francophones or who have francophone or bilingual employees.

At the beginning of 2000, an economic and human resources development project, the Regroupement de développement économique et d'employabilité (RDÉE), was started in an attempt to stem the flow of francophones leaving to find work in other provinces. The project is centred on four areas: the knowledge-based economy, rural development, tourism, and youth employment.

Education

In 1996, there were six schools offering French first-language programs: two of them, Peacock and Our Lady Queen of Peace, were dual track schools (with a French section housed in an English school); the other four were exclusively French schools. They are: the Centre scolaire et communautaire Sainte-Anne at Mainland, operating since 1989, the École Notre-Dame-du-Cap at Cape St. George, since January 1993, the École française de Saint-Jean, since 1998, and the Centre éducatif L'Envol in Labrador City. The Faculty of Education of Memorial University of Newfoundland also gives some courses in French.

Voluntary Sector

Founded in 1973, the Fédération des francophones de Terre-Neuve et du Labrador (FFTNL) is a non-profit organization dedicated to promoting and defending the rights and interests of the province's francophone and Acadian community. As the community's official organization, FFTNL represents its four member organizations, which meet as a board of directors three times a year. There is no association of French-speaking lawyers in Newfoundland and Labrador.

Profile of Respondents

Since there is no association of French-speaking lawyers in Newfoundland and Labrador, efforts were made to identify French-speaking lawyers or lawyers who are capable of practising law in French. Those efforts identified four people who could respond to the survey. Two of them agreed to participate. Obviously, this is a very small sample. However, this reflects the fact that the practice of law in French is itself of very limited scope in this jurisdiction. That caution having been stated, it is still important to consider the responses of those lawyers. As well, other actors in the legal system were interviewed for the study.

Supply of and Demand for Services in French

Proportion of Clients who are French-Speaking and Demand for Services in French.

As might be expected, the demand for services in French is limited. According to the two respondents, an average of 9% of their clients are French-speaking, and all of those clients request judicial and legal services in French. Nonetheless, the low demand for services in French is confirmed by our interviews with other actors in the system. According to the information collected, there are very few criminal trials that take place in French.

Perception of Impact of Proceeding in French

The perception on the part of the lawyers in relation to the impact of proceeding in French is divided.

Awareness and Application of Section 530 of the Criminal Code

Judges do not always seem to inform accused persons who are not represented by counsel of their language rights as required by section 530 of the Criminal Code. As well, forms in French are not always available as provided by the Criminal Code.

Active Offer of Service

According to the information obtained, there is no policy for the active offer of services in French in Newfoundland and Labrador. Services are offered only if they are requested.

Barriers to Access to Justice in French

Overall Level of Satisfaction with Judicial and Legal Services in French

The small number of respondents to the survey acknowledged, dissatisfaction is observed with judicial and legal services in French. The lawyers responded that they were dissatisfied in the areas of law in which they practise: criminal law and divorce law.

Neither of the lawyers responded to the general question concerning family law, but the one who responded to several detailed questions reports dissatisfaction with services in that field.

Views of Criminal Lawyers regarding Accessibility of Services and Documents in French

The respondents to the questions dealing with criminal law say that it is very difficult to obtain services from court officers, prosecutors and courthouse administrative staff. Opinion is divided on the question of access to judges, but there also seems to be a problem with access. According to our respondents, there are virtually no bilingual personnel in the judicial system of Newfoundland and Labrador. That observation is confirmed in respect of legal personnel by the interviews with other actors in the system.

Based on all of our respondents and interviews, the situation in Newfoundland and Labrador may be summarized as follows. If a bilingual trial or trial in French is requested, the authorities will do what is needed to fulfil that request. However, there being no personnel who are capable of providing services in French, such a request will inevitably mean that additional time is needed, and therefore result in dissatisfaction on the part of individuals appearing in the courts. In view of the shortage of judicial personnel, the province of Newfoundland and Labrador has an agreement with New Brunswick under which bilingual judicial personnel from New Brunswick are available to meet the needs of individuals in the courts of Newfoundland and Labrador, if necessary.

As well, it is not easy to access case law and pleadings in French. On the other hand, the lawyers and other respondents say that they do not have difficulty in respect of access to interpretation services. Opinion is divided on the question of access to legal literature and legislation.

Views of Lawyers Practising Bankruptcy Law Concerning Accessibility of Services and Documents in French

Only one lawyer responded to the questions dealing with bankruptcy law, and that person reports that it is not easy to access services and documentation in French.

Views of Lawyers Practising the Law of Divorce and Support Concerning Accessibility of Services and Documents in French

The situation as it relates to access to justice in the area of divorce law is similar to one regarding criminal law. Although only one lawyer responded to this part of the questionnaire, services in French from personnel in the judicial system are not easy to access.

The lawyer expressed no opinion on the question of access to pleadings, legislation, legal literature and case law. However, there is no reason to believe that the situation in respect of divorce law is very different from the situation in respect of criminal law in this regard.

Possible Solutions

The small sample made for a limited range of possible solutions proposed by study participants. As in British Columbia and the three territories, access to justice in French in Newfoundland and Labrador is in its embryonic stages, and the province is in compliance with the minimum requirements of the Supreme Court of Canada.

However, there are some possible solutions that could be considered.

Federal

At the federal level, the following ideas could be considered:

  • Preparing an inventory of lawyers in Newfoundland and Labrador who are capable of practising in both languages. The FFTNL could play a role in this respect. As well, an AJEF might be created after the lawyers in question are identified. These possibilities were not raised by the study participants in this province and are proposed here for informational purposes.
  • Appoint a bilingual judge.

Provincial

At the provincial level, the following ideas could be considered:

  • Appoint a bilingual judge.
  • Hire bilingual personnel in the courthouses in areas where there most of the francophone population is found.
  • Use new technologies. As in other jurisdictions, it is possible in Newfoundland and Labrador to use electronic methods to facilitate certain activities: filing documents, appearances, pleas to summary conviction offences, motions, applications.

Other

Ensure that judges inform the accused persons who are not represented of their language rights.


  • [101] RSNL1990, c. J - 4
  • [102] RSNL1990, c. U-3
  • [103] Ibid. s. 3
  • [104] http://www.gov.nf.ca/just/LAWCOURT/lcourt.htm
  • [105] SNL1991, c. 15
  • [106] RSN 1990, c. S-16
  • [107] Francophone and Acadian Community Profile of Newfoundland and Labrador, Fédération des communautés francophones et acadienne (FCFA) du Canada, May 2000.

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