Environmental Scan: Access to Justice in Both Official Languages

Chapter 4: British Columbia

Structure of the Judicial System

Organization of the Judicial System

Superior Courts

The British Columbia Court of Appeal Act[12] establishes a superior court of record called the Court of Appeal. The Court sits mainly in Vancouver, but sometimes in Victoria, Kamloops and Kelowna.[13]

The British Columbia Supreme Court Act[14] establishes a superior court of record called the Supreme Court of British Columbia, which sits in various judicial divisions in the province.

Provincial Courts

The British Columbia Provincial Court Act[15] establishes the Provincial Court of British Columbia to which is essentially conveyed the criminal and quasi-criminal jurisdiction of the province. The Provincial Court may hear certain interlocutory matters under the Divorce Act[16] or the Family Relations Act.[17] This Court is also the court that is designated as the youth court under the Young Offenders Act.[18]

Under the British Columbia Small Claims Act,[19] a claim for less than $10,000 may be dealt with in a speedy and simple manner in the Provincial Court. Appeals from small claims decisions are to the Supreme Court.

Constitutional Obligations

There is no constitutional obligation to provide services in French in British Columbia.

Provincial Legislation

In British Columbia, there are no statutory provisions recognizing the right to use French in the courts. There is a general provision in the province's Rules of Procedure establishing that all documents shall be prepared in the English language. That provision would not apply to the courts of criminal jurisdiction, since it is contrary to the provisions of the Criminal Code.

Profile of the Francophone Community[20]

Demographics

A majority of the population of British Columbia is English-speaking. Of the 3,689,755 inhabitants of the province, 75.61% have English as their mother tongue. Francophones make up 1.5% of the total population (56,755 according to the 1996 census).

The number of people with French as their mother tongue went up from 51,585 in 1991 to 56,755 in 1996. In 1981, the number was 43,415. This increase followed the strong growth of the Franco-British Columbian population during the 1960s due to a strong economy. For over fifty years, many francophones from all over Canada have been drawn to British Columbia where they have formed an extensive network of institutions, both in major centres and in small towns.

Geography

Francophones are found in every part of British Columbia. By far the greatest number (25,000) are concentrated in the census division which includes the Vancouver urban region. They are spread across the various municipalities making up the metropolitan area: Vancouver, Surrey, Burnaby and Coquitlam, which includes Maillardville. Also, a large number of Franco-British Columbians live in the different communities of Victoria's urban region. The remaining francophones in the province are spread throughout the other divisions without significant concentrations. There are cultural centres in Kelowna, Prince George, Nanaimo, Powell River and Kamloops.

Nowhere in British Columbia do francophones constitute a significant percentage of the population. They represent only a very small minority in the Vancouver and Victoria metropolitan areas, 1.3 percent and 1.7 percent respectively. Their numbers are just as small in other localities, even in the part of Coquitlam where the old village of Maillardville was located. There, francophones make up approximately two percent of the population.

Economy

An major turning point occurred in 1998 when the Société de développement économique de la Colombie-Britannique was formed. The Chambre de commerce franco-colombienne de Vancouver now has more than 200 members, and has identified tourist resources in the province that offer service in French.

We would also note that an Annuaire des services en français, which includes 155 business advertisers, is published by FFCB and available on its Web site and from francophone associations.

Education

In 1997, the Supreme Court of British Columbia ordered provincial legislators to amend the School Act to recognize the special rights contained in section 23. Thus, British Columbia now has a Francophone School Board that has jurisdiction throughout the entire province. Today, there are about 3,000 francophone students in the Francophone Program.

The development of French schools has quickened since the arrival of the Francophone School Board. There are now 11 French schools in British Columbia. Beginning in 1999, every school offering the Francophone Program also offers full-time junior kindergarten.

There are no francophone institutions at the post-secondary level. However, some colleges and universities offer some training in French, particularly in the fields of literature, history and language. Among these are Simon Fraser University, the University of British Columbia (UBC) and colleges such as Douglas College, University College of the Fraser Valley and the University of Victoria.

Voluntary Sector

The Fédération des francophones de la Colombie-Britannique (FFCB) is the organization that represents the interests of the francophone community in British Columbia. Its mission is to represent, promote and defend the rights and interests of francophones in British Columbia and to preserve their linguistic and cultural heritage. FFCB has 34 associated members in the fields of culture, economy, education, and services to the underprivileged and francophone community development. British Columbia has an Association des juristes d'expression française; although that Association is relatively young, it has about 35 members.

Profile of Respondents

Because we did not have access to the AJEF membership list, we were unable to determine whether we contacted all its members. However, with the assistance of AJEF representatives, we succeeded in contacting a number of members who agreed to respond to the survey. In total, seven respondents participated in the survey, six of whom are lawyers in private practice. Not having a complete list of members, it is impossible for us to determine what proportion of the membership those responses represent. However, the AJEF officers assured us that our respondents represented a very large majority of lawyers who are capable of practising in French in the province.

A majority of those respondents, four out of six, have French as their mother tongue. A majority of those, four out of six, did their legal studies in Quebec. They studied common law and civil law. None of them attended law school at the Université de Moncton or the University of Ottawa. Most of these lawyers, four out of six, work in Vancouver.

In addition to the lawyers who responded to the questionnaire, five other actors were consulted for the study. In total, 12 people were consulted in British Columbia. The total number of people consulted is relatively low for a province the size of British Columbia. However, from the consultations with these 12 actors from various sectors of the legal system, we can make an assessment of the situation as it relates to access to the judicial system in French in that province.

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, there is relatively little demand for judicial and legal services in British Columbia. Only 5% (on average) of our respondents' clients have French as their mother tongue, although a majority of them (72% on average) request services in French.

Views of Other Actors in the Judicial System

This situation is confirmed by the other actors. According to our informants, there are only about 10 criminal trials a year in this province in which French is used, and most of those trials are initiated by provincial Crown counsel. According to these actors, a very large majority of those requests are for bilingual trials rather than trials in French. Some people say that a francophone client often prefers to communicate with his or her lawyer in French, while the judicial proceedings take place in English.

The following are the comments made by some of our respondents, which explain the somewhat difficult situation in which francophone individuals find themselves in the courts:

In British Columbia, there is serious prejudice against French-Canadians. They are afraid of being regarded badly.

Because there have been cuts in judicial and legal services in general in British Columbia, there are fewer services in French. If the services were offered, there would be people using them.

There is a fear that a majority of the other participants in a case will not be proficient in French. The fear of the additional time and costs that it will take are major disincentives.

Active Offer of Service

According to the information obtained from the various actors and from lawyers in criminal law, there is no policy for active offer of service in both official languages in British Columbia. The result is that francophones appearing in the courts are not sufficiently well informed about their language rights and their opportunity to receive judicial and legal services in the minority official language.

Some people characterize a few posters that are available in the Court, combined with respect for the obligations imposed by section 530 of the Criminal Code, as an active offer policy. However, if the policy for active offer of services in French in British Columbia comes down to these points, it is a minimal policy.

Barriers to Access to Justice in French

Overall Level of Satisfaction with Judicial and Legal Services in French

The law does not provide for access to justice in French in the province. Under the law in force, the English Law Act (1960), which incorporates a law that dates from 1731 in England, judicial and legal services in the province are offered in English only, and not in "Latin or French or any other language". Given that fact, it is not surprising that, overall, the lawyers express dissatisfaction with access to justice in French in British Columbia.

Generally speaking, francophone individuals appearing in the courts in British Columbia are at a disadvantage because of their language. They do not have access to judicial and legal services in both official language for hearings of civil cases. In criminal cases, they must agree to the trial being conducted with the assistance of an interpreter. They have a very limited choice of bilingual judges in the Provincial Court and Supreme Court of the province. They also have a very limited choice of lawyers who are capable of representing clients in both official languages. Finally, they are not well informed regarding judicial and legal services that are offered in both official languages and consequently they rarely request those services.

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

The laws of the province are enacted in English only. It is possible to have a criminal trial in French in British Columbia if the accused requests it. In that case, the trial will be held with the assistance of an interpreter. However, there seem to be problems with the availability of qualified interpreters.

There are only three bilingual judges on the Provincial Court who are available to provide judicial and legal services throughout the province. The limited number of judges leads to adjournments and delays in the delivery of services when an accused asks to be heard in French. Some court officers are bilingual, but others, such as sheriffs, are not. The courthouses do not have bilingual staff, with the exception of the courthouse in New Westminster where there is a bilingual court clerk.

Judges do not have access to legal documentation in French, and use Quicklaw. The resources that are available for learning legal French in British Columbia are very limited. The only legal French training available is offered outside the province by the Office of the Commissioner for Federal Judicial Affairs.

In general, we find that documentation, including case law, legal literature and legal lexicons, is not readily available.

Possible Solutions

Like a number of other provinces, British Columbia has faced and continues to face major challenges in relation to access to justice in French. The following are the various possible solutions that were suggested to us during the study.

Federal

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

  • Establishing a directory or inventory or Internet site to identify lawyers who are capable of functioning in French; this documentation should be made accessible to accused persons in police stations and courthouses. Because it seems that there are very few francophone lawyers in this province, an effective way of identifying them for the benefit of francophone accused should be found.
  • Offering training in common law terminology in French for lawyers, judges and prosecutors.
  • Appointing more bilingual judges.
  • Creating mechanisms for informing francophone accused of their rights.
  • Providing better funding for the AJEF and encouraging it to become involved as a partner.

Provincial

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

  • Appointing bilingual prosecutors.
  • Appointing bilingual judicial personnel.
  • Using videoconferencing for appearances in Provincial Court. This would enable individuals and lawyers to appear in French without them or the Court having to travel.
  • Adopting a French Services Act.

  • [12] R.S.B.C. 1996, c. 77
  • [13] http://www.courts.gov.bc.ca/Info/Bccourts.htm
  • [14] R.S.B.C. 1996, c. 443
  • [15] R.S.B.C. 1996, c. 379
  • [16] R.S.C. 1985, c. 3 (2nd Supp.)
  • [17] R.S.B.C. 1996, c. 128
  • [18] R.S.C. 1985, c. Y-1
  • [19] R.S.B.C. 1996, c. 430
  • [20] Francophone Community Profile of British Columbia, Fédération des communautés francophones et acadienne (FCFA) du Canada, April 2000
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