Environmental Scan: Access to Justice in Both Official Languages

Chapter 2: Access to Justice in Francophone Minority Communities

The organization of the environmental scan of access to justice in both official languages of Canada is based on the provinces and territories. The nature of the linguistic duality of Canada is that there is an English-speaking official language minority in Quebec and French-speaking official language minorities in the nine other provinces and three territories. Because Quebec is the only province that has English as its minority official language, chapter 11 of this study will deal with the situation of that group, the only English-language minority community in the country.

Because French is the minority official language in the other 12 provinces and territories, it would seem appropriate to present a summary of the situation in respect of access to justice in French in Canada outside Quebec.

Profile of Respondents

The main instrument used for collecting the data for this study was a survey of members of the legal profession. The questionnaire consisted mainly of closed questions amenable to quantitative analysis. Although a number of legal professionals, judges, Crown counsel, translators and interpreters responded to the questionnaire, it was specifically designed to be used with lawyers in private practice. In fact, we found that a large majority of the survey respondents in most jurisdictions was composed of lawyers in private practice. The research team chose to mainly question that category of informants because lawyers have a special relationship with the parties, in that they represent and defend them in the courts. As a group, therefore, when considering access to justice issues, they are particularly well informed about the situation, and may be regarded as representing the views of the public since they are not directly involved in the administration of justice in the same way as judges, ministry employees and court officers.

In addition to using that tool to collect data, we conducted telephone interviews throughout Canada using more semi-open and open questions, which we put to other respondents: court officers, Crown counsel, judges, representatives of provincial ministries and presidents of the Associations des juristes d'expression française. As well, we held a focus group that brought together members of the AJEFs from several provinces. The procedure is described in greater detail in the introduction to this report.

The research team sought the contribution of about 900 legal professionals outside Quebec, and received 214 complete responses to the survey. The overall rate of response to the survey outside Quebec was 24%. There were 182 lawyers in private practice, representing 85% of the survey respondents. When the analysis is broken down by jurisdiction, most of our observations are based on the responses of 177 lawyers who answered the question in the survey identifying the jurisdiction in which they usually practise law.

Of those lawyers, 137 (76%) have French as their first language, 42 (23%) have English as their first language, and one (1%) has neither English nor French as the first language. However, only nine (5%) said that they work solely in French, and 61 (34%) said that they work solely in English. The majority (111, or 61%) said that they work in both official languages. This suggests that lawyers who are capable of practising law in French do so primarily in a context characterized by bilingualism. We would also note that a significant proportion of the lawyers (34%) said that they work solely in English, and this is probably a reflection of practice in jurisdictions where the francophone minority is numerically small. Very few lawyers practise solely in French, and those practices are found in the few enclaves where francophones represent a very high proportion of the population of a judicial district.

In terms of legal training, 47 (26%) of the lawyers studied law at the Université de Moncton, 56 (31%) studied law at the University of Ottawa and 79 (43%) studied law at other institutions.

If we consider the language of legal studies, we find that 62% studied law in French only or in French and English, and 38% did their studies solely in English. This data illustrate the significant impact that the two centres for common law studies in French have on access to justice in French for francophone official language minorities.

Demand for Services in French and Proportion of Clients who Speak French

It is virtually impossible to estimate overall demand for judicial and legal services in French outside Quebec: we had access to very few data from the various categories of respondents. The data that we did collect are still very incomplete, and by no means represent the actual situation in relation to demand. However, we received a number of indications, which may be divided into three categories. There are jurisdictions where the francophone minority accounts for a very low proportion of the total population, and in those situations there are generally very few lawyers capable of practising in French and no association of French-speaking lawyers, and the demand for services in French is very low. Newfoundland and Labrador and the three territories are examples of the jurisdictions in this category. In other jurisdictions, the francophone minority is better organized, in legal terms, and there is an association of French-speaking lawyers, the minority is numerically a little larger, and demand for judicial and legal services, while still limited, is more common. The last category consists of jurisdictions where the francophone minority comprises a sufficient critical mass, from the demographic and political standpoint, to demand and obtain legal services in French. In those situations, while we still do not have precise data, we know that the demand is there and often that the demand is growing.

The lawyers who took part in the survey were invited to estimate the proportion of their clients who are francophone, and the proportion of those clients who request services in French. For all jurisdictions, the 128 lawyers with French as their first language estimated that, on average, their francophone clients represent 40% of their total clientele. In addition, they estimated that about 46% of their francophone clients request judicial and legal services in French. The 42 lawyers whose first language is English estimated that their francophone clients represent about 15% of their total clientele, and that 46% of those francophone clients request services in French.

Overall Level of Satisfaction with Judicial and Legal Services in the Minority Language

Overall, the survey shows a relatively high level of dissatisfaction with access to justice in French in the 12 provinces and territories, in a number of respects. According to a significant number of respondents, including both lawyers in private practice and the other actors in the system, the judicial system puts francophones at a disadvantage. Francophones who are members of minority groups where their demographic and political weight is particularly low are particularly vulnerable to assimilation, and so, through a ricochet effect, more likely to use services in English.

This observation of course does not apply uniformly everywhere, whether across provinces, territories or judicial divisions. For example, in the two provinces with the highest number of francophones living outside Quebec are found - New Brunswick and Ontario - the situation is often different from what is observed in the other provinces. Even in New Brunswick, an officially bilingual province, there are regions with a large anglophone majority where judicial and legal services in French leave something to be desired. The reports for each province and territory (chapters 3 to 16) describe the specific situation in each of them.

Table 2.1 shows overall satisfaction or dissatisfaction with the functioning of the judicial system in French in respect of the three areas of federal jurisdiction. When all jurisdictions were taken together, the proportions of lawyers who expressed dissatisfaction with the availability of French services were as follows: 50% (30 out of 60) in criminal law; 58% (19 out of 33) in bankruptcy law; and 45% (30 out of 66) in the law of divorce and support.

Perception of the Impact of Proceeding in French

Table 2.2 shows the responses from lawyers concerning the impact of key factors on the decision as to whether to proceed in French.

Of the factors that might influence the decision as to whether to proceed in French, we note that additional time is the factor of most concern: 54% of lawyers are of the opinion that deciding to proceed in French causes delays, while 30% believe it does not and 16% have no opinion. On the question of costs, 39% believe that this factor has an impact on the decision as to whether to proceed in French, 48% believe it does not and 12% don't know.

On the other hand, relatively few lawyers - 13% - believe that deciding to proceed in French will have an influence on the judgment in the case, or even on the chance of an appeal.

One quarter - 26% - of lawyers perceive a fear of negative impact on the part of their clients as explaining their decision not to proceed in French, 54% do not perceive that fear and 20% do not know.

Awareness and Application of Section 530 of the Criminal Code

As discussed in the preceding chapter, section 530 of the Criminal Code plays an important role in access to justice in French.

However, the survey responses from the legal profession (Table 2.3) indicate that there are problems in the application of that section. While 79% say that they are aware of article 530 and the implications of that section, only 40% of respondents believe that judges advise accused persons who are not represented by counsel of the fact that they may choose the language of trial, while 33% did not answer the question. More than one quarter - 27% - do not believe that judges advise accused persons of their language rights, even though that obligation is very clearly laid out in the Criminal Code.

Active Offer of Service

A relatively high proportion of lawyers - 41% - say that they are aware of an active offer policy in their province or territory; 28% are not aware of such a policy, and 31% did not express and opinion on the subject. However, the examples of active offer policies that were mentioned reflect, overall, a relatively limited notion of what this might involve: in most cases, the participants made reference to active offer measures that occur on an ad hoc and sporadic basis. On the other hand, a genuine active offer of service policy should lay down the essential broad principles around which a coherent set of short, medium and long-term measures are organized. The interviews with the other actors in the judicial system suggested that a genuine active offer policy is relatively rare in a majority of the provinces and territories, other than Manitoba.

Principal Barriers

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

A significant number of lawyers see gaps in access to various services in French in criminal law. Table 2.4 sets out the questions and the responses from lawyers relating to how easy it is to obtain services in French from judges and various officers of the courts, as well as the relevant documents in criminal law cases. Interviews with other actors in the judicial system confirmed the information provided by those lawyers, particularly as it relates to court staff.

The data also reflect problems with access to services in French from the various actors in the judicial system.

Half of the lawyers - 49% - believe that it is easy to obtain services in French from judges in criminal cases. Slightly fewer than half - 46% - believe that it is easy to obtain services in French from prosecutors (both provincial and federal).

On the other hand, nearly half of respondents - 46% and 51%, respectively - believe that it is not easy to obtain services in French from officers of the provincial and superior courts and from support staff in the courthouse.

A majority of lawyers - 78% - believe that legislation is easy to access in French. On the question of interpretation, 64% said that services were easy to access. More than half of lawyers - 45% - believe that it is easy to access pleadings in French; 41% say that it is easy to access the case law in French, and 29% acknowledge that it is easy to access the legal literature in French.

Empanelling a jury can be a problem in several regions of Canada. Overall, 38% of lawyers told us that it is easy to access a jury that is able to understand the case in French, versus 24% who say the opposite. According to the other actors in the judicial system, it is relatively difficult in a number of jurisdictions to empanel a jury composed of persons who are sufficiently bilingual to hear a case in French. The lower the concentration of francophones in a region, the more difficult it is to empanel a jury of this nature.

Views of Bankruptcy Practitioners regarding Accessibility of Services and Documents in French

Table 2.5 shows the survey questions and responses regarding the accessibility of services in French from court staff in bankruptcy cases. According to 43% of lawyers who practise in this field, it is easy to obtain services in French from a bankruptcy judge.

However, lower proportions of respondents consider other services to be accessible. The figure is 38% for accessibility of services in French from officers of the Superior Court, and 31% for support staff at the courthouse.

Problems arise in respect of access to documentation in this field. Only 21% of lawyers find it easy to access legal literature in French in the field of bankruptcy, and only 29% find it easy to access the case law in the field. On the other hand, 51% find it easy to access pleadings in the field of bankruptcy.

Overall, the table shows that in bankruptcy law, access to documents in French is limited, and it is not as easy to obtain interpretation services as in the other fields of federal jurisdiction.

Views of Family Law Specialists regarding Accessibility of Services and Documents in French

Table 2.6 shows the questions and answers given by lawyers practising in the field of divorce and support law regarding accessibility of judicial and legal services and documents in French.

According to 56% of lawyers, it is easy to obtain services in French from a judge in this field of federal jurisdiction.

On the other hand, they report that it is less easy to obtain services in French from officers of the superior court (43%), courthouse support staff (36%) and officers of the provincial court (39%).

A number of bankruptcy lawyers - 73% - believe that legislation in French is easy to access; 63% find it easy to access pleadings in French.

As in criminal law, access to the legal literature in French is more of a problem: only 22% say that it is easy to access, and 63% say that it is not.

There also appears to be room for improvement with respect to the case law: 37% believe that it is easy to access the case law in French, while 48% say that it is not.

Models and Exemplary Practices

In our interviews with various actors in the provinces and territories, the respondents were asked to identify models and practices that might be called exemplary. By "exemplary", we meant practices that had produced results in a particular context and that could be adapted and applied to other contexts, whether that would mean in other provinces or at the national scale. Although participants had a lot to say about the numerous possible solutions that might be considered or implemented, there were few comments made on the question of exemplary practices, and so, as we shall see later, the list of possible solutions was more detailed than the list of exemplary models and practices. Nonetheless, the following are a few examples of practices that have been implemented in one jurisdiction or another and that could be used as models elsewhere.

One approach that should be taken is to adopt a policy of recruiting personnel to work in judicial and legal services who are capable of working effectively in both official languages. As well, the implementation of language standards and tests to measure applicants' capacity to work at the appropriate level in both official languages, both orally and in writing, could serve as one model.

In Manitoba, the creation of bilingual courts to serve parties in a particular region where there is a sizeable number of francophones in a minority community is a model that could be followed by other jurisdictions, to promote access to justice in the minority official language.

Another exemplary practice might be to establish a francophone itinerant court to serve francophone parties in minority communities in remote regions, as in Manitoba. Because it is impossible to appoint francophone judges in every judicial district in a particular province, or to hire bilingual support staff in every judicial district, the francophone itinerant court makes the justice system more accessible throughout the province to parties who speak the minority language. If services were provided by a francophone itinerant court, the various jurisdictions would be able to comply with the requirements laid down by the Supreme Court of Canada in its decision in Beaulac.

The agreements that have been made with another province to provide judicial and legal services in both official languages may provide another model for provinces where there is a small official language minority community.

The agreements for the provision of judicial and legal services that have been made between Nunavut and Alberta, and between the Northwest Territories and Alberta, could serve as models for provinces where the official language minority community is too small to justify creating permanent francophone judicial and legal services in the province. There is also an agreement between Prince Edward Island and New Brunswick that could serve as a model.

Publication of provincial statutes in both official languages, and publication of the Official Languages Act and the provincial French services laws could serve as a model for provinces that would like to provide judicial and legal services in both official languages.

Ontario's Courts of Justice Act could serve as a model to promote access to justice in both official languages. The adoption of a law providing that the official languages of the courts are English and French is a model that could be followed by other provinces.

The initiative taken by the Law Society of Upper Canada in Ontario, which involves including an obligation in the code of ethics to offer services in French, could serve as a model for the other jurisdictions.

Possible Solutions

The participants who were questioned or consulted for this study mentioned a number of ideas about measures that might be considered. These are listed below.

Government of Canada

  • Ensure that full-time representatives of the Crown who are employed by the federal government enquire at an early stage as to the language preference of individuals who are to stand trial, and proceed in that language. The Department of Justice of Canada should play a coordinating role, by ensuring that appropriate measures have been taken to determine the official language preference of a person against whom charges may be laid.
  • Ensure that representatives of the Crown are instructed in the obligations and rights associated with the official languages. For instance, in cases before the criminal courts, where an accused chooses under section 530 of the Criminal Code to be tried in the minority official language, Crown counsel should speak the same language as the accused. Oral and written communications should also take place in the language chosen by the accused. When the federal government assigns cases on contract to lawyers in private practice, it should ensure that the lawyers in question are able to speak the language of the accused.
  • Ensure that representatives of the federal Crown are informed of the rights and obligations set out in Part XVII of the Criminal Code and Parts III and IV of the Official Languages Act. The Department of Justice of Canada should ensure that the attention of representatives of the Crown be drawn to the obligation to respect those rights.
  • Appoint more bilingual judges to the provincial superior courts, given that there is a virtually universal shortage of such judges in the Atlantic Provinces (with the exception of New Brunswick), Western Canada and the territories.
  • Provide for continuous language and legal terminology training for judges and judicial personnel.
  • Use the model provided by sections 530 and 530.1 to extend language rights to divorce and bankruptcy cases. Include the right to receive the evidence in one's own language and the right to a prosecutor and judge who speak both languages.
  • Prepare lists of lawyers who are capable of representing clients in the minority language.
  • Provide better funding for the AJEFs, create AJEFs in the provinces and territories where they do not exist and get them involved as partners in efforts to enhance bilingualism in the judicial system.
  • Provide assistance for increasing the use of information technologies: videoconferencing automated translation software, electronic document filing, and the taking of testimony by other than the conventional methods.
  • Assist in recruiting bilingual judicial personnel.
  • Establish a system for verifying judges' language proficiencies.
  • Add a mandatory new form to the criminal process, informing accused persons of their language rights and permitting them to specify the language that they prefer. The form would have to be completed by the point when the accused exercises his or her choice regarding the language of the trial under section 530 of the Criminal Code, at the latest.
  • Provide charges and particulars in the official language of the accused. Section 530.1 should be amended to remedy situations where the charge is laid in English, despite the fact that a bilingual form is available. In addition, the particulars provided at the request of the defence when it wishes to have more details concerning elements of the charge should be provided not only in English, but also in French.
  • Incorporate language-related information in police warnings, so that the choice of language is identified at the outset of the process and is respected throughout that process.
  • Assist in translating forms relating to the Criminal Code; require the use of a genuinely bilingual form on a single page, and not a form that is bilingual with one language on the front and the other on the back.
  • Monitor the quality of interpreters.

Provincial Governments

  • Appoint more bilingual judges to the provincial court. There is a widespread shortage.
  • Develop the concept of an itinerant provincial court composed of a judge, a clerk, a prosecutor and the RCMP members who will be testifying, all of whom have been determined to have bilingual capacity and are identified as such.
  • Develop the "single window" concept: bring together the services of the provincial and superior court registry offices, and create a single window for paying fines. Designate an office, and ensure that its staff is francophone and the language of work is French. This kind of judicial and legal services centre could also provide a base that could be used by the regions when necessary.
  • Inform parties of their language rights, and make this obligation incumbent on the police, judges and courthouse staff.
  • Establish a system to determine the language proficiencies of judges, lawyers, prosecutors and courthouse staff, as well as of court interpreters.
  • The provinces should adopt procedures to facilitate the translation of the information laid by police and the evidence tendered at trial.
  • Translation at hearings - whether simultaneous or consecutive - is a makeshift solution that puts French on the same footing as any foreign language, and negates equality of status. It should be avoided in the case of prosecutors and judges.

Other actors

In addition to the provincial governments, the Government of Canada should include other partners in this undertaking: the associations of French-speaking lawyers (AJEFs), which will have to be funded adequately; associations of francophones in the province; law societies; law faculties (via the Council of Canadian Law Deans), the Canadian Judicial Centre, the centres for legal translation and documentation (CTTJ in Moncton, CLTD in Ottawa and Institut Joseph-Dubuc in Manitoba).

Conclusion

To conclude this chapter, the provinces and territories are evidently at different stages when it comes to access to justice in both official languages.

For one thing, access to justice in French in the three territories is very limited because they have a less highly developed judicial infrastructure. In those three jurisdictions, borrowing services from other provinces appears to offer a temporary solution, while waiting for resident bilingual judges to be appointed.

Next come the provinces where work has yet to begin: Newfoundland and Labrador and British Columbia. In both those cases, measures that could be considered to supplement inter-provincial loans of services include a census of bilingual lawyers and appointment of bilingual prosecutors and at least one bilingual judge.

Then we have the provinces where progress toward better access to justice in the minority official language is in its infancy: Alberta, Saskatchewan, Manitoba, Nova Scotia and Prince Edward Island. In those cases, more francophone judges need to be appointed and bilingual court staff positions created, and innovative approaches adopted, including single-window service, itinerant courts and computerization.

The three central provinces - Ontario, Quebec and New Brunswick - of course have their own problems, but those problems are not as serious. For these provinces, services in both official languages need to be made easily accessible throughout the entire province in question, an active offer policy needs to be developed and implemented, measures need to be taken to ensure that judicial personnel are able to serve the public in the language of their choice, and use of the minority language needs to be standard practice in order to overcome the idea that proceeding in the minority language creates an inconvenience or increases the costs and time involved.

Tables

Table 2.1: Overall Level of Satisfaction with Judicial and Legal Services in French
  Satisfied Not satisfied
Generally speaking, regarding the availability of judicial and legal services in French in criminal law, you are: 30 (50%) 30 (50%)
Generally speaking, regarding the availability of judicial and legal services in French in bankruptcy law, you are: 14 (42%) 19 (58%)
Generally speaking, regarding the availability of judicial and legal services in French in the law of divorce and support, you are: 36 (55%) 30 (45%)
Table 2.2: Perception of the Impacts of Proceeding in French
  Yes No Do not know
Delays in services 89 (54%) 49 (30%) 27 (16%)
Additional costs 65 (39%) 80 (48%) 20 (12%)
Unfavourable judgment 21 (13%) 104 (63%) 40 (24%)
Possible inscription in appeal 21 (13%) 99 (61%) 43 (26%)
Perceived fear, among the clients, of a negative impact on their case 43 (26%) 88 (54%) 32 (20%)
Table 2.3: Awareness and Application of Section 530 of the Criminal Code
  Yes No Do not know
Awareness of section 530 56 (79%) 11 (15%) 4 (6%)
Awareness of the stages in the process where there is a possibility of making decisions on language 53 76%) 13 (19%) 4 (6%)
Lawyers who advise their clients each time the opportunity of making a linguistic choice arises 51 (80%) 8 (13%) 5 (8%)
Judges who advise the accused of their linguistic options each time the opportunity arises 27 (40%) 18 (27%) 22 (33%)
Availability of relevant forms in French 31 (46%) 14 (21%) 23 (34%)
Table 2.4: Availability of French Services and Documents According to Criminal Lawyers
  Yes No Do not know
From judges 34 (49%) 25 (36%) 10 (14%)
From officers of the Provincial Court 24 (35%) 32 (46%) 13 (19%)
From officers of the Superior Court 25 (36%) 32 (46%) 12 (17%)
From administrative officials at the Court House 25 (37%) 35 (51%) 8 (12%)
From federal prosecutors or legal agents of the Attorney General of Canada 31 (46%) 20 (29%) 17 (25%)
From provincial prosecutors and their substitutes 31 (46%) 25 (37%) 12 (18%)
From interpreters 44 (64%) 12 (17%) 13 (19%)
In legal proceedings in French 37 (54%) 20 (29%) 11 (16%)
To empanel a jury whose members are capable of hearing a case in French 26 (38%) 16 (24%) 26 (38%)
Of legislation in French 53 (78%) 8 (12%) 7 (10%)
Of case law, court rulings, etc. in French 28 (41%) 30 (43%) 11 (16%)
Of jurisprudence, i.e. legal sources, in French 20 (29%) 33 (48%) 16 (23%)
Table 2.5: Availability of French Services and Documents According to Lawyers in Bankruptcy Law
  Yes No Do not know
From judges 18 (43%) 11 (20%) 13 (31%)
From officers of the Superior Court 16 (38%) 14 (33%) 12 (29%)
From administrative officials at the Court House 12 (31%) 18 (46%) 9 (23%)
From interpreters 20 (49%) 7 (17%) 14 (34%)
In legal proceedings in French 21 (50%) 13 (31%) 8 (19%)
Of case law, court rulings, etc. in French 12 (29%) 22 (52%) 8 (19%)
Of jurisprudence, i.e. legal sources, in French 9 (21%) 24 (57%) 9 (21%)
Table 2.6: Availability of French Services and Documents According to Lawyers in the Law of Divorce and Support
  Yes No Do not know
From judges 38 (56%) 26 (38%) 4 (6%)
From officers of the Provincial Court 25 (39%) 27 (42%) 12 (19%)
From officers of the Superior Court 29 (43%) 30 (45%) 8 (12%)
From administrative officials at the Court House 24 (36%) 30 (45%) 12 (18%)
From interpreters 35 (51%) 22 (32%) 11 (16%)
In legal proceedings in French 42 (63%) 20 (30%) 5 (7%)
Of legislation in French 48 (73%) 15 (23%) 3 (5%)
Of jurisprudence, i.e. legal sources, in French 15 (22%) 42 (62%) 11 (16%)
Of case law, court rulings, etc. in French 25 (37%) 32 (48%) 10 (15%)
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