Environmental Scan: Access to Justice in Both Official Languages

Chapter 5: Prince Edward Island

Structure of the Judicial System

Judicature

Superior Courts

The Prince Edward Island Supreme Court Act[21] establishes a superior court of record called the Supreme Court of Prince Edward Island. That Court is composed of two divisions:

  • the Appeal Division, which sits in Charlottetown, and
  • the Trial Division, which sits in Georgetown, Charlottetown and Summerside.

The Trial Division is further divided into four sections:

  • the Estates Section, which exercises the jurisdiction conveyed to it by the Probate Act,[22]
  • the Family Section, which has jurisdiction in respect of family law,
  • the Small Claims Section, where cases are heard by a judge of the Supreme Court, and
  • the General Section.

All appeals are heard by the Appeal Division.[23]

Provincial Courts

The Prince Edward Island Provincial Court Act[24] establishes the Provincial Court of Prince Edward Island. That Court has jurisdiction over criminal and quasi-criminal cases.

A "youth court" with jurisdiction over young offenders,[25] whose judges have the same powers as the judges of the Provincial Court, is also established.

As well, under the Provincial Court Act, the Lieutenant-Governor in Council may temporarily appoint a judge of a provincial court of a province other than Prince Edward Island to preside over a trial in French.[26]

Constitutional Obligations

There is no constitutional obligation to provide judicial and legal services in French in Prince Edward Island.

Provincial Statutes

The Prince Edward Island French Language Services Act[27] refers to the Canadian Constitution, and specifically to the Canadian Charter of Rights and Freedoms, and states that the Government of Prince Edward Island recognizes that French is one of the two official languages of Canada.

The purpose of the French Language Services Act is stated in section 2. It defines the parameters for the use of French in the Legislative Assembly; it specifies the scope of the services provided in French by the government institutions defined in section 1 of the Act; and it circumscribes the scope of the services to be provided in French in the administration of justice. The purpose of the Act is to contribute to the development and enhancement of the Acadian and Francophone community.

With respect to the administration of justice in the province, section 11 provides that French may be used in any proceeding in the Provincial Court and Supreme Court of Prince Edward Island. Under section 12, the decisions of the Provincial Court and Supreme Court must be rendered simultaneously in French and English in cases in which French was used in the proceedings.

The Provincial Court and Supreme Court must ensure that everyone has the right to be heard in French or English, according to his or her choice, and the Act provides for the use of simultaneous interpretation where a party so requests. However, most of these provisions have not been proclaimed.

Profile of the Francophone Community[28]

Demographics

The population of Prince Edward Island is linguistically very homogeneous. Of the province's 132,860 inhabitants, 94.1% have English as their mother tongue. Francophones make up 4.3% of the total population (5,722 according to the 1996 census). The number of Prince Edward Islanders with French as their mother tongue has remained stable since 1981. It dropped by only about 100 people in 15 years ­ going from 5,835 in 1981 to 5,722 in 1996.

Geography

Seven out of every ten francophones live in the western part of the Island, that is, Prince County, where they make up about 10 percent of the population. They are largely concentrated in the Évangéline region where they form a majority in some villages including Wellington and Abrams Village. There they have developed a strong sense of belonging that promotes cohesion and community organization. Another major area of Acadian and francophone concentration is in the Summerside region. A final significant group is located in the northern part of the county.

Island francophones are essentially rural, although more than a thousand of them are concentrated in and around Summerside, the regional service centre for the western part of the Island.

Economy

The Acadian and francophone community have given priority to the following economic action sectors: cultural tourism, community economic development, support of small and medium businesses and the cooperative movement, utilisation of information and communications technologies, and human resources development. The cooperative movement has played a major role in the development of the Acadian community. The Société de développement de la Baie acadienne, an economic development organization for the Évangéline region, has received a provincial mandate to support Acadian and francophone businesses.

Education

Post-secondary education in French has been available since September 1995 on Prince Edward Island through the Société éducative de l'Île-du-Prince-Édouard. From its base at the Provincial Adult Training Centre, the Société éducative offers post-secondary courses and a distance training service using the Collège de l'Acadie de la Nouvelle-Écosse's network as well as a range of part-time courses made to measure for an adult Island clientele.

We would note that French-language education is managed primarily by the Fédération des parents de l'Île-du-Prince-Édouard and the Commission scolaire de langue française de l'Île-du-Prince-Édouard.

Voluntary Sector

The Société Saint-Thomas-d'Aquin (SSTA) is the official organization speaking for Prince Edward Island's Acadian and francophone community. Founded in 1919, it brings together a number of organizations at the local, regional and provincial levels. Obtaining federal and provincial services in French are among its objectives. There is no association of French-speaking lawyers in Prince Edward Island.

Profile of Respondents

Since there is no association of French-speaking lawyers in Prince Edward Island, efforts were made to identify lawyers who are capable of speaking French. Those efforts identified three people who could respond to the questionnaire. Two of them agreed to participate. Both of them are francophones, one practises in Prince County (where a majority of francophones live) and the other practises in the capital, Charlottetown. The number of respondents is not high, but this reflects the limited nature of the practice of law in French in this province.

Demand for and Supply of Services in French

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

As may be expected, there is relatively little demand for judicial and legal services in French. Only 13% of the two respondents' clients have French as their mother tongue, and about a quarter of them request judicial and legal services in French. The low demand for judicial and legal services in French is confirmed by our interviews with other actors. According to the information collected, there are no more than three or four criminal trials in French a year.

This low demand for judicial and legal services in French may be due to the perception that additional costs are associated with the choice of proceeding in French, according to one of the two respondents. The perception of the time needed for providing services could be another reason for the low demand. We note that, when necessary, the province brings in judges from New Brunswick for criminal trials at the Provincial Court level (three or four times a year). However, neither of the two survey respondents perceives any fear of negative impact among their clients.

Active Offer of Service

According to the information obtained, there is no active offer of service policy in Prince Edward Island. Services seem to be offered when they are requested, but there does not seem to be any proactive approach for that purpose.

Barriers to Access to Justice in French

Overall Level of Satisfaction with Judicial and Legal Services in French

The survey respondents express their dissatisfaction with judicial and legal services in French. They say they are dissatisfied with the quality of services in French in the areas of law in which they practise, criminal law and divorce law. Because none of them practises bankruptcy law, we have no responses in that regard.

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

Lawyers who practise criminal law believe that it is difficult to obtain services from court officers, prosecutors and courthouse support staff. However, they say that services in French are available from judges. That opinion is corroborated by the other actors in the judicial system. There is only one bilingual judge attached to the province's judicial and legal services. There are no bilingual court clerks and courthouse support staff are unilingual anglophone.

It is not easy to access documentation in French (case law, legal literature, and pleadings).

The laws of the province are not published in both official languages, except for the French Language Services Act. The Rules of Procedure have not been translated into French. The French Language Services Act provides that persons appearing in the courts of the province will have access to judicial and legal services in both official languages, but that part of the Act has not yet been proclaimed. The language of the courts is English.

Francophones appearing in the courts have access to justice in their language in criminal cases, but do not have access to justice in their language in civil cases.

When necessary, the provinces arrange to use the services of bilingual or francophone judges from New Brunswick to hold criminal trials in French. Capacity in the minority official language is very limited, but translation services may be offered.

A very small number of police officers are capable of communicating in French.

Because the number of lawyers in private practice who can provide services in French is very limited, cases are often heard in English because the lawyers involved are unilingual anglophone. Persons appearing in the courts in this province sometimes arrange to use the services of francophone lawyers from other provinces (for example, New Brunswick).

There are no francophone or bilingual lawyers in the legal aid office. However, we were informed that if a legal aid client really needs services in French, legal aid will issue a certificate to one of the francophone lawyers in private practice.

There are no language training programs in the province to enable judges who would like to acquire the capacity to perform their functions in both official languages to do so. The only courses in legal French that are available are the one-week courses offered to judges of the minority language each year by the Office of the Commissioner for Federal Judicial Affairs.

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

The situation in terms of access to justice in divorce law is similar to the situation in respect of criminal law.

Initiatives

The main initiative undertaken in Prince Edward Island in respect of access to judicial and legal services in French is found in the 1999 (French Language Services Act). Proclamation of the sections relating to the administration of justice would certainly have the effect of improving access to judicial and legal services in French in the province. However, we were told that the two Chief Justices of the province have asked the Attorney General's Department to establish a committee to plan for implementation of those sections. We must point out that in the public consultations held concerning implementation of that Act, judicial and legal services in French did not garner the same level of public support as other government services that should be offered in French. It seems that the lack of public support for judicial and legal services in French will lead to delays in proclaiming those sections.

Possible Solutions

There are major challenges to be met in terms of access to justice in French in Prince Edward Island. The following are the various possible solutions that were suggested to us by study participants.

Federal

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

  • Appointing at least one other judge to the Superior Court.
  • Making the public more aware of their language rights and of the fact that they will not be negatively affected if they decide to proceed in French.

Provincial

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

Implementing the provisions of the French Language Services Act dealing with the judicial system and the right to a trial in French.


  • [21] R.S.P.E.I. 1988, Cap. S-10
  • [22] R.S.P.E.I. 1988, Cap. P-21
  • [23] Ibid., para. 16(1)
  • [24] R.S.P.E.I. 1988, Cap. P-25
  • [25] Young Offenders (P.E.I.) Act, R.S.P.E.I. 1988, Cap. Y-1
  • [26] Supra, note 4, s. 2.1
  • [27] French Services Act, S.P.E.I. 1999, c. 13
  • [28] Acadian and Francophone Community Profile of Prince Edward Island, Fédération des communautés francophones et acadienne (FCFA) du Canada, May 2000
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