Environmental Scan: Access to Justice in Both Official Languages

Chapter 3: Alberta

Structure of the Judicial System

Judicature

Superior Courts

The Alberta Court of Appeal Act[2] establishes a superior court called the Court of Appeal of Alberta, whose powers are set out in the Judicature Act.[3] The Court of Appeal sits in Edmonton and Calgary.

The Court of Queen's Bench Act[4] establishes a superior court of record called the Court of Queen's Bench of Alberta, whose powers are set out in the Judicature Act. The Court of Queen's Bench sits in various judicial divisions in the province.

Provincial Courts

The Alberta Provincial Court Act[5] establishes a court of record called the Provincial Court of Alberta to which is essentially conveyed the criminal and quasi-criminal jurisdiction of the province. The Provincial Court is designated as the youth court for the purposes of the Young Offenders Act (Canada)[6] and the Alberta Young Offenders Act.[7] It also has jurisdiction in some areas of family law, including child custody and access and the Child Welfare Act.[8]

Under the Provincial Court Act, the Provincial Court handles civil claims where the amount claimed does not exceed $7,500.[9] Appeals from its judgments are heard by the Court of Queen's Bench.

Constitutional Obligations

There is no constitutional obligation to provide services in French in Alberta.

Provincial Legislation

Section 110 of the North-West Territories Act also applied to Alberta until the decision in Mercure. After that case was decided, the Government of Alberta acted quickly to repeal the language rights that applied to the courts and the legislative process, which had been incorporated into the law of Alberta when it joined Confederation. However, the Alberta Languages Act[10] recognizes a right to use French in certain courts, including courts of criminal jurisdiction. Subsection 4(1) of the Act provides: "Any person may use English or French in oral communication in proceedings before the following courts: the Court of Appeal of Alberta; the Court of Queen's Bench of Alberta; The Surrogate Court of Alberta; The Provincial Court of Alberta". However, that right is limited to oral communication.

Profile of the Francophone Community[11]

Demographics

The population of Alberta is quite homogeneous with respect to language. Of the province's 2,669,195 inhabitants, fewer than 500,000 have a mother tongue other than English. Francophones make up 2.1% of the total population (55,290 according to the 1996 census).

The number of people with French as their mother tongue fell from 56,730 in 1991 to 55,290 in 1996, a further decline from 1986 when the francophone population was 60,605. This decline followed a period of rapid growth in the Franco-Albertan population, as a result of the province's strong economy. In the 1970s, large numbers of francophones from all across Canada moved into the province and helped consolidate a wide network of Franco-Albertan institutions in urban areas and in small towns and villages.

Geography

Franco-Albertans are found in all areas of the province. They are most populous around Calgary and Edmonton, attracted by the job opportunities and the varied services of an urban setting. More than half of Franco-Albertans live in these cities and their surrounding areas: south of Edmonton, in the town of Beaumont, and to the north, in the towns of Saint Albert, Morinville and Legal.

Significant concentrations of francophones are found in Rivière la Paix, Bonnyville, Saint Paul, Plamondon and Lac La Biche. These northeastern and northwestern regions of the province have the highest percentage of francophones: more than five percent in the census division, and more than 15 percent in several localities. Francophones are a majority in the Falher region, in the town of Falher itself, in the villages of Donnelly, Saint Isidore, and Girouxville, and in the municipal district of Smokey River.

Economy

There are a significant number of francophone entrepreneurs in Alberta, and there are business organizations in Edmonton, Calgary and Fort McMurray. As well, the province has had a Chambre économique since 1998. In 1999, five federal departments, two provincial ministries and the Franco-Albertan community signed a tripartite agreement dealing with labour force training.

Education

There are twenty-one schools serving the Franco-Albertan community, all of which are homogeneous in terms of language, and four francophone regional school boards (North Central, Northwest, Northeast and South). A number of programs are offered at the college and university level, including a bilingual business administration college operated by NAIT (Northern Alberta Institute of Technologies). As well, general Bachelor of Arts programs in arts, science and education are offered in French by the Faculté Saint-Jean, which is affiliated with the University of Alberta.

Voluntary Sector

The Association canadienne-française de l'Alberta (ACFA) is the organization that speaks for the francophone community. It operates through a network of ten regional and two local associations. The Association's priorities include the signing of an agreement between Canada and Alberta's francophone community, the development of an infrastructure network for Franco-Albertans and promotion of the French fact among the francophone community, the anglophone community and the ethnocultural communities. There is an association of French-speaking lawyers in Alberta.

Profile of Respondents

The Association des juristes d'expression française de l'Alberta (AJEFA) is estimated to have about 75 members. Of those, 16 responded to the questionnaire, either on line or by telephone. Of the 16 respondents, 15 (94%) are lawyers in private practice, and represent 33% of the 45 lawyers in private practice who are counted as members of the Association.

Our sources suggest that there are about 20 lawyers who are capable of practising in French in Alberta. Given that we secured the participation of 15 lawyers who belong to the AJEF, the respondents to the questionnaire in that province appear to represent a sizeable proportion of the lawyers who are capable of practising law in French in the province. The analysis of the responses to the survey is based on those 15 respondents.

Eight of the 15 lawyers who responded to the survey (53%) have French as their first language. Fourteen (93%) of them report that they work in English only, and one (7%) works in both French and English. That means that among lawyers in this province, the practice of law is mainly in English.

On the question of what university the lawyers attended for their legal studies, only two lawyers (13%) studied law at the Université de Moncton, and none studied at the University of Ottawa. The other 13 respondents (87%) studied law at other institutions, primarily in English.

On the question of what district the lawyers usually practise in, eight out of 14 (57%) said Edmonton, 7% (one out of 14) said Edmonton and St. Paul, and 21% (three out of 14) said Calgary. The other two lawyers said that they usually practise law in the southwest or throughout the province.

Supply of and Demand for Services in French

French-Speaking Proportion of Clientele and Demand for Services in French

The lawyers we surveyed reported that 4% of their clients are French-speaking. Of that 4%, 29% request services in French. It is therefore apparent that a very low proportion of the clients of the lawyers surveyed are francophone, and yet of those clients, nearly one third request services in French.

Views of Other Actors in the Judicial System

The interviews conducted with other actors confirm that finding. In criminal law, there seem to be no more than one or two trials in French (or bilingual trials) per year in Alberta. The low demand for judicial and legal services in French is, according to some people, a result of the fact that francophones are satisfied with using English. In addition, some people say that the fact that few services are offered in French in the system is justified by the fact that the demand for services is low. Other people believe that persons involved in judicial proceedings do not request services in French because their perception is that the system does not have the capacity to deliver appropriate services in their language.

It seems that the demand for trials in French (or bilingual trials) was higher in the late 1980s and early 1990s. However, it has dropped considerably since that time. It is difficult to explain the change, but a number of factors may have contributed to it.

Perception of Impact of Proceeding in French

An individual's decision to proceed in French may depend on his or her perception, or counsel's perception, of the impact of making that request. Table 3.1 provides a somewhat inconsistent picture in this regard.

Among lawyers, 29% believe that the perception that it will take additional time has a negative impact on the decision as to whether to proceed in French. In terms of additional costs, 21% of lawyers say that this factor has an impact on the decision as to whether to proceed in French. As well, only 18% perceive fear of a negative impact on the part of their clients. Very few lawyers (one out of 14, or 7%) believe that the possibility of an unfavourable judgment has an impact on the decision as to whether or not to proceed in French.

On the other hand, a significant proportion of respondents stated no opinion concerning the possibility of appealing (69%) and the possibility of an unfavourable judgment (71%).

Awareness and Application of Section 530 of the Criminal Code

As shown in Table 3.2, only 60% (three out of five) of lawyers report that they are very familiar with section 530 and the implications of that section. In addition, only half (two out of four) state that they inform clients of their opportunity to choose the language of trial.

However, it is disturbing to find that none of the four lawyers who answered the question believes that judges inform accused persons of their right to choose the language of trial. Two of them responded that judges do not inform accused persons of their rights, and the other two responded that they did not know. The other consultations conducted confirm that judges do not always comply with the requirements of section 530.

Active Offer of Service

One lawyer out of four (25%) says that there is an active offer of service policy in Alberta. The others (three out of four, or 75%) say that they cannot answer the question. There seem to be leaflets in some courthouses referring to language rights under section 530 of the Criminal Code, but, paradoxically, the folders are written in English, and this hardly encourages the use of French in the courts.

Views of Other Actors in the Judicial System

The interviews conducted with other actors confirm that in criminal law there is no policy for the active offer of service in both official languages in Alberta. Overall, individuals are not well informed as to the services offered in the minority official language. The fact that there is no active offer of these services gives the impression that they are not readily available. For one thing, there are very few prosecutions in the minority language in the Court of Queen's Bench in Alberta.

In criminal proceedings, francophone accused are apparently not informed of their right to a trial in their own language. Even though the information charging the offence is written in both languages, there is no obligation to read the information in the minority official language.

Barriers to Access to Justice in French

Overall Level of Satisfaction with Judicial and Legal Services in French

If we consider only the general questions dealing with satisfaction or dissatisfaction on the part of lawyers with judicial and legal services in French, we might conclude that the situation in Alberta is relatively favourable, and that individuals appearing before the courts are well served by the judicial system: almost all of the lawyers responded to the questions relating to satisfaction or dissatisfaction with judicial and legal services in French in the three fields under federal jurisdiction say that they are satisfied (three out of three in criminal law and two out of three in family law).

However, as we shall now see when we consider the question of barriers to access to justice in the minority language, the lawyers' judgment of the situation is actually harsher.

Views of Other Actors in the Judicial System

The fact that there are very few complaints about services in French may seem to confirm the appearance of general satisfaction with services in French.

However, all the other actors do not necessarily share that feeling. Many of them believe that the judicial system does not have the capacity to respond to the needs of the francophone minority.

After the judgment of the Supreme Court in Mercure, the Government of Alberta legislated to reduce its language obligations in respect of both the judicial system and the legislative process.

Those restrictions seem to apply to civil actions brought under a federal statute such as the Divorce Act or the Bankruptcy Act. Cases are heard in English only. However, if a party wishes to be heard in French, an interpreter will be assigned and the judge will hear the English version provided by the interpreter.

Thus, in fact, perceptions seem to be divided with respect to the capacity of the judicial system to deliver services in French.

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

While all three respondents who expressed an opinion in response to the question say that they are satisfied overall with judicial and legal services in French in criminal cases, the responses to the detailed questions were more divided. As well, those questions generated a better response rate (5 respondents).

As shown in Table 3.3, the lawyers seem to have some difficulty in obtaining services in French from all categories of actors in the judicial system. The percentage of respondents who believe that it is easy to access the various actors ranges from 0% in respect of support staff at the courthouses to 40% in respect of judges. It is not easy to access officers of the provincial court and superior court, according to three five, or 60%, of the lawyers. According to 80% of respondents, or four out of five, it is not easy to access services in French from support staff at the courthouses.

On the other hand, the lawyers report that it is easy to access interpreters, pleadings and legislation in French: 80% (four out of five) answered "yes" to that question, while 20% (one out of five) answered that he did not know. However, on the question of legislation, the provincial statutes are not published in both official languages, with the exception of the Alberta Languages Act. The reported ease of access to legislation must therefore be referring to the Criminal Code and other federal statutes only.

A majority of lawyers (60%) say that it is easy to access the case law in French. No lawyer, however, says that access is available to the legal literature in French.

Empanelling a jury that is able to understand the case in French can be a problem in Alberta. Only one lawyer out of five says that it is easy to access a jury capable of hearing a case in French; 40% say that it is not easy, and 40% expressed no opinion on the subject. The other actors confirm that it is not easy to empanel a jury capable of hearing a case in French.

Views of Other Actors in the Judicial System

Some actors report that there are bilingual court clerks and Crown counsel, but no bilingual court reporters. There is a limited number of bilingual police officers, and access to expert testimony in French is limited.

Duty counsels are not bilingual. The scarcity of francophone lawyers in the provincial Ministry of Justice and in private practice is also a barrier to access to justice in both official languages.

Views of Lawyers Specializing in Bankruptcy Law concerning Accessibility of Services and Documents in French

Only one lawyer responded to the questions dealing with bankruptcy law. He said that it is not easy to obtain services in French from judges, officers of the superior court or courthouse support staff. As well, he informed us that it is not easy to access pleadings, case law or legal literature in French.

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

As shown in Table 3.4, the responses from lawyers practising the law of divorce and support are divided with respect to judicial personnel. Half of them say that it is easy to obtain services in French from judges and officers of the superior court. Only one respondent out of four says that it is easy to obtain services in French from officers of the provincial court.

A majority of respondents, three out of four, express no opinion concerning courthouse support staff, and none of them reported that it was easy to obtain services from those actors.

The lawyers' responses were also divided on the question of access to documents in French in this area of the law. The majority, three out of four, say that it is easy to access legislation in French and to access interpreters. However, only half of respondents believe that it is easy to access pleadings and case law in French. On the question of access to legal literature in French, half expressed no opinion and only one lawyer out of four reported that it is easy to access.

In the opinion of some actors in the system, francophones in the province who appear in court are at a disadvantage because of their language. They do not have access to a hearing in French for civil cases (divorce and bankruptcy), and instead will have hearings in English with interpreters. Francophones must necessarily use consecutive translation services during the hearing of their case. They are consequently put at a disadvantage if they want to speak their own language in proceedings that fall within federal fields of jurisdiction. Most often, they decide to proceed in English. They are at a disadvantage because of their language, and that is a barrier to the exercise of their rights.

Possible Solutions

The possible solutions presented below are taken from the questionnaires and from the interviews with various actors in the legal system. They are divided according to whether they relate to the federal or provincial governments or other bodies.

Federal

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

  • Appointing more bilingual judges.

  • Doing a better job of informing individuals appearing in the courts about their language rights. There should be active offer of service; this is a matter of rights, and not of supply and demand. Individuals in the courts must be convinced, and the means must be put in place to ensure that the choice of proceeding in French does not occasion additional delays and costs. It should not be more expensive, and take longer, to proceed in French than to proceed in English.
  • Taking measures in criminal proceedings to ensure that accused persons are informed of their right to a trial in their own language.
  • Ensuring compliance, in proceedings under a federal statute such as the Divorce Act and the Bankruptcy Act, with section 110 of the North-West Territories Act, which provides, pursuant to the decision in Mercure, that in Alberta "either the English or the French language may be used by any person ... in the proceedings before the courts".
  • Establishing a program, in cooperation with the faculties of law, to train more bilingual lawyers.
  • Providing more funding for the AJEFA.
  • Making judges and other actors in the judicial system more aware of language rights.

Provincial

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

  • Ensuring that there are bilingual court reporters and staff at hearings of cases and trials in French.
  • Having the province's principal statutes translated into French.
  • Adopting an policy of active offer of judicial and legal services in both official languages, particularly in respect of the rights provided in section 530 of the Criminal Code.
  • Establishing an itinerant court that would include a francophone judge of the Court of Queen's Bench and a francophone judge of the Provincial Court, and a bilingual prosecutor, court clerk and court reporter.
  • Establishing a training institute that would offer continuing education courses in legal French for French-speaking and English-speaking members of the legal profession who are bilingual and wish to upgrade their training in legal French.

Other

The law faculties should make their students more aware of language rights and offer courses in legal French.

Tables

Table 3.1: Perception of the Impacts of Proceeding in French
  Yes No Do not know
Delays in services 4 (29%) 4 (29%) 6 (43%)
Additional costs 3 (21%) 7 (50%) 4 (29%)
Unfavourable Judgment 1 (7%) 3 (21%) 10 (71%)
Possible inscription in appeal 3 (23%) 1 (8%) 9 (69%)
Perceived fear, among clients, of a negative impact on their case 2 (18%) 4 (36%) 5 (45%)
Table 3.2: Awareness and Application of Section 530 of the Criminal Code
  Yes No Do not know
Awareness of section 530 3 (60%) 2 (40%) 0 (0%)
Awareness of the stages in the process where there is a possibility of making decisions on language 3 (60%) 2 (40%) 0 (0%)
Lawyers who advise their clients each time the opportunity of making a linguistic choice arises 2 (50%) 2 (50%) 0 (0%)
Judges who advise the accused of their linguistic options each time the opportunity arises 0 (0%) 2 (50%) 2 (50%)
Availability of relevant forms in French 0 (0%) 2 (50%) 2 (50%)
Table 3.3: Availability of French Services and Documents According to Criminal Lawyers
  Yes No Do not know
From judges 2 (40%) 2 (40%) 1 (20%)
From officers of the Provincial Court 1 (20%) 3 (60%) 1 (20%)
From officers of the Superior Court 1 (20%) 3 (60%) 1 (20%)
From administrative officials at the Court House 0 (0%) 4 (80%) 1 (20%)
From federal prosecutors or the legal agents of the Attorney General of Canada 1 (20%) 2 (40%) 2 (40%)
From provincial prosecutors and their substitutes 1 (20%) 2 (40%) 2 (40%)
From interpreters 4 (80%) 0 (0%) 1 (20%)
In legal proceedings in French 4 (80%) 0 (0%) 1 (20%)
To empanel a jury whose members are capable of hearing a case in French 1 (20%) 2 (40%) 2 (40%)
Of legislation in French 4 (80%) 0 (0%) 1 (20%)
Of case law, court rulings, etc. in French 3 (60%) 1 (20%) 1 (20%)
Of jurisprudence, i.e. legal sources, in French 0 (0%) 2 (40%) 3 (60%)
Table 3.4: Availability of French Services and Documents According to Lawyers in the Law of Divorce and Support
  Yes No Do not know
From judges 2 (50%) 1 (25%) 1 (25%)
From officers of the Provincial Court 1 (25%) 2 (50%) 1 (25%)
From officers of the Superior Court 2 (50%) 1 (25%) 1 (25%)
From administrative officials at the Court House 0 (0%) 1 (25%) 3 (75%)
From interpreters 3 (75%) 0 (0%) 1 (25%)
In legal proceedings in French 2 (50%) 2 (50%) 0 (0%)
Of legislation in French 3 (75%) 1 (25%) 0 (0%)
Of jurisprudence, i.e. legal sources, in French 1 (25%) 1 (25%) 2 (50%)
Of case law, court rulings, etc. in French 2 (50%) 2 (50%) 0 (0%)

  • [2] R.S.A. 2000, c. C-30
  • [3] R.S.A. 2000, c. J-2
  • [4] R.S.A. 2000, c. C-31
  • [5] R.S.A. 2000, c. P-31
  • [6] R.S.C. 1985, c. Y-1
  • [7] Young Offenders Act, R.S.A. 2000, c. Y-1
  • [8] R.S.A. 2000, c. C-12, (see also: http://www4.gov.ab.ca/just/lawu/roles7.html)
  • [9] http://www4.gov.ab.ca/just/lawu/roles7.html
  • [10] Languages Act, R.S.A. 1988, c. L-7.5
  • [11] Francophone Community Profile of Alberta, Fédération des communautés francophones et acadienne (FCFA) du Canada, April 2000
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