Environmental Scan: Access to Justice in Both Official Languages

Chapter 6: Manitoba

Structure of the Judicial System

Judicature

Superior Courts

The Manitoba Court of Appeal Act[29] establishes a superior court of record called the Court of Appeal, which sits in Winnipeg.

The Manitoba Court of Queen's Bench Act[30] establishes a superior court of record called the Court of Queen's Bench of Manitoba, which sits, in various judicial districts in the province.

Under the Court of Queen's Bench Act a division called the Court of Queen's Bench (Family Division) is also established.

Under the Court of Queen's Bench Small Claims Practices Act,[31] a claim for less than $7,500 may be dealt with in summary manner in the Court of Queen's Bench and the rules of the Court do not apply. Cases are heard by a court officer. The decisions of a court officer may be appealed to a judge of the Court of Queen's Bench (trial de novo) and the decisions of a judge may be appealed to the Court of Appeal.

Provincial Courts

The Manitoba Provincial Court Act[32] establishes the Manitoba Provincial Court to which is essentially conveyed the criminal and quasi-criminal jurisdiction of the province.

The Provincial Court is made up of two divisions:

  • the Manitoba Provincial Court (Criminal Division) and
  • the Manitoba Provincial Court (Family Division), which has jurisdiction in criminal cases involving children and is responsible for administering the Young Offenders Act.[33] It also has jurisdiction in certain family law cases outside Winnipeg.[34]

Appeals from judgments of the Provincial Court are heard by the Court of Appeal.

Constitutional Obligations

Like New Brunswick and Quebec, Manitoba is required by the Constitution to respect the right to use French or English in the courts. That right is set out in section 23 of the Manitoba Act, 1870. However, despite the constitutional right, it appears that the Manitoba judicial system is still very much unilingual, although some progress has been made.

Provincial Legislation

Section 23 of the Manitoba Act, 1870, which is the source of language rights in the courts, is a specific manifestation of the general right that Franco-Manitobans have to speak their own language. In order to meet its obligations, the Government of Manitoba has adopted a French Language Services Policy which provides that "the services provided by the Government of Manitoba are offered, to the extent possible, in both official languages in areas where the French-speaking population is concentrated". A similar approach has been proposed in respect of the judicial system.[35]

Profile of the Francophone Community[36]

Demographics

From the point of view of language, Manitoba's population is fairly homogeneous. Of the 1,100,295 inhabitants, 75.1% have English as their mother tongue. Francophones make up 4% of the total population (49,100 according to the 1996 census).

The population of francophones fell from 50,775 in 1991 to 49,100 in 1996. In 1986 there were 51,620. The relative population stability follows a period of wide variation. For example, there was high growth in the 1950s, but a decline in the 1970s, due probably to both assimilation and decline in birthrates.

Geography

Francophones live throughout Manitoba. The largest concentration is in metropolitan Winnipeg. They have centred around Saint Boniface. This is the only urban concentration of francophones in the province. Surrounded by a large anglophone majority in Winnipeg, francophones are 4.4 percent of the population. Others live in the small towns and villages in the southeast and south west of Saint Boniface. Sainte-Rose-du-Lac and Saint-Laurent are rare francophone enclaves in the northern part of the province.

Economy

The first ever Caisse Populaire (credit union) in Manitoba was created in 1937 at Saint Malo. Today, the nine Caisses Populaires and their 22 subsidiaries have formed the Fédération des Caisses Populaires du Manitoba, which has 34,000 members and assets of 420 million dollars.

The Conseil de développement économique des municipalités bilingues du Manitoba (CDEM) was created by the Association des municipalités bilingues du Manitoba (AMBM) in 1996. The Corporation de développement économique Riel, which coordinates activities for the neighbourhoods of Saint Boniface, Saint Norbert and Saint Vital, was founded in 1998. And since its creation in 1973 the francophone foundation of Manitoba, Francofonds, has provided more than $800,000 in the form of scholarships. publications and grants to cultural groups or youth organizations.

Education

Since 1974, all French programs, including French immersion and French as a second language, have been coordinated by the Bureau de l'éducation française of the Ministry of Education and Training. Franco-Manitoban schools have been under the management of francophones since 1994 through the Ministry's Division scolaire franco-manitobaine.

There are twenty-one primary and secondary schools offering programs in French as a first language. As well, The Collège universitaire de Saint-Boniface, an affiliate of the University of Manitoba, has a Centre d'études franco-canadiennes de l'Ouest and an École technique et professionnelle. It is active in French language continuing education.

Voluntary Sector

The Société franco-manitobaine (SFM) is the main organization representing the francophone community. Its priorities are the implementation of the Canada-community agreement; the development of French services in government and other areas; the management of school boards; community development; and fostering concerted inter-departmental approaches in government and within francophone communities. There is an association of French-speaking lawyers.

Profile of Respondents

Of the 40 members of the Association des juristes d'expression française du Manitoba, 21 responded to the survey, either on line or by telephone. Seventeen lawyers in private practice responded to the survey, representing 81% of all of the survey respondents. Those 17 lawyers represent 74% of the 23 lawyers in private practice who belong to the Association.

Of those respondents, 75% (12 out of 16) have French as their mother tongue. On the question of language of work, 13 (76%) report that they work in English and French, two (12%) say that they work in English only and two (12%) report working in French only. Generally speaking, the lawyers who participated in the survey practice law on a context of bilingualism.

On the question of legal studies, 47% of the lawyers studied law at the Université de Moncton and 18% at the University of Ottawa, and 35% studied law at other institutions. We note that 47% of the lawyers did their legal studies in French, 27% studied in English, and about the same proportion studied in both official languages. A very large majority of those who studied in French did so at the Université de Moncton.

The lawyers have quite varied practices, in terms of both the fields of law they practise and the courts in which they appear.

On the question of the district where they usually practice, 93% (13 out of 14) reported that they work mainly in the Winnipeg region (which includes St. Boniface). This reflects the concentration of the francophone population in the region of Winnipeg and the surrounding villages.

Supply of and Demand for Services in French

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

According to the lawyers who responded to the survey, about 38% of their total clientele is French-speaking, and on average 42% of them request services in French. This suggests that current demand for judicial and legal services in French is relatively low in Manitoba. The interviews with other actors confirm this situation.

Views of Other Actors in the Judicial System

In criminal cases in the Court of Queen's Bench there seem to be no more than one or two trials in French (or bilingual trials) a year. In the Provincial Court, the actors estimate that there are about 10 requests a year for criminal trials in French or bilingual trials, although the actors questioned say that this number is growing.

Perception of Impact of Proceeding in French

Table 6.1 shows that 53% of the lawyers believe that additional time has an impact on the decision whether or not to proceed in French, and 33% say the opposite. On the question of additional costs, 40% say that this factor has an impact on the decision whether to proceed in French, while 53% say the opposite.

As well, a small proportion (7%) believes that the possibility of an unfavourable judgment is a factor in the decision whether or not to proceed in French. A large majority of lawyers (80%) do not believe that this factor has that impact. A slightly higher proportion (20%) are of the opinion that the possibility of an appeal is a factor that has an impact on the decision whether or not to proceed in French, while 60% say the opposite. Lastly, 27% perceive a fear of a negative impact on the part of their clients, while 67% do not perceive such fears.

Awareness and Application of Section 530 of the Criminal Code

Table 6.2 deals with knowledge of section 530 of the Criminal Code and implementation of that section in Manitoba. The responses from the lawyers indicate that section 530 is applied more widely than it is known.

Only half of the lawyers (six out of 12) say that they are quite familiar with section 530 and the implications of that section. However, 67% (eight out of 12) say that they are familiar with the steps that must be followed in order to make a choice as to language, and 75% (nine out of 12) say that they inform their clients of their opportunity to make that choice.

As well, the fact that only 33% (four out of 12) of the lawyers believe that judges inform accused persons who are not represented by counsel of their right to make a choice as to language, and that five, or 42%, of the respondents believe that judges do not comply with that provision of the Criminal Code, is a matter for concern.

Lawyers who studied in French (at Moncton and Ottawa) are much more critical of judges in respect of section 530 of the Criminal Code. Only 13% of lawyers who studied in French, one out of eight, believe that judges inform accused persons as required by that section. A majority of the lawyers (three out of four, or 75%) who studied in English believe that the judges comply with the requirements of section 530. Other actors in the judicial system corroborate the opinion that judges do not comply with the language requirements set out in section 530 of the Criminal Code, with the exception of judges who hear bilingual trials.

Active Offer of Service

A very large majority of lawyers (nine 12, or 75%) say that they are aware of an active offer policy. A number of other actors agree with that. However, others suggest that the policy is not really effective.

If we examine the policy of the Government of Manitoba regarding services in French, we find that it offers its services in both official languages in designated areas where the French-speaking population is concentrated. The policy for the active offer of services in French, which is in fact fairly complete, is limited to the designated areas. This would perhaps explain the fact that only the judges of what are called bilingual courts actively offer services in French. Clearly, that practice does not meet the requirements set out in section 530 in respect of criminal trials. When we examine that policy, it is easier to understand why lawyers express reservations as to the effectiveness of the policy for French-speaking accused persons.

On the other hand, 75% (nine out of 12) of the lawyers say that the forms are available in French, while the other 25% express no opinion on this subject. The policy says: "Unless specified otherwise by the Minister responsible for French Language Services, all forms, identity documents and certificates intended for the general public are in a bilingual format." It adds: "All information materials (written, audio-visual or electronic) intended for the general public are produced in a bilingual format, unless cost and distribution considerations justify separate language versions." It would be expected that, if the policy is implemented as it is written, there will be active offer of government services, including judicial and legal services, in French. However, the main difficulty identified is still that the obligations imposed by section 530 are apparently not being met outside the designated areas.

Barriers to Access to Justice in French

Overall Level of Satisfaction with Judicial and Legal Services in French

Overall, we find that the lawyers who belong to the AJEF identify a significant number of barriers to access to justice in French in Manitoba. That feeling is not necessarily shared by all the other actors, many of whom believe that the judicial system is capable of meeting the needs of the francophone minority. That perception is undoubtedly due in part to the low demand for judicial and legal services in French from the francophone population elsewhere than in the designated areas.

The lawyers' responses to the general questions dealing with their satisfaction or dissatisfaction with judicial and legal services in the three areas of federal jurisdiction leave no doubt as to their overall assessment of the system's capacity to the aspirations and language rights of the official language minority. Table 6.3 shows a very high level of dissatisfaction (100%) in respect of criminal law, and a slightly lower level of dissatisfaction in respect of the other areas of federal jurisdiction. With respect to bankruptcy law, 60% of lawyers say that they are dissatisfied, and 67% of lawyers report dissatisfaction with respect to divorce law.

Views of criminal lawyers concerning Accessibility of Services and Documents in French

Although 100% of the lawyers (seven out of seven) reported that they are dissatisfied overall with judicial and legal services in French in criminal law, opinion was more divided in the responses to the detailed questions, which generated a higher response rate (10 or 11 responses).

As Table 6.4 shows, the lawyers mainly seem to have problems obtaining service in French from the provincial and superior court officers, provincial prosecutors and courthouse support staff. The situation in the case of judges and federal prosecutors is better, although only 55% and 60% report that it is easy to obtain services from judges and federal prosecutors, respectively.

Views of Other Actors in the Judicial System

There are problems with the availability of bilingual personnel in the judicial system. In most cases, there are only the minimum needed to meet the legal requirements. If someone is sick or quits his or her job, there are often significant delays before service is restored. That situation undoubtedly explains the difference between the assessments by the lawyers and the other actors of the system's capacity to respond to requests from francophones.

To those actors within the judicial system, the low demand for services in French justifies having only a minimum number of bilingual personnel, and they regard the delays occasioned by this approach as acceptable. As well, there is a problem in respect of the attitudes of some employees, who are not necessarily sensitive to the needs and rights of the francophone population.

The lawyers who belong to the AJEF identify a problem relating to the decision as to whether to proceed in French: often, one has to appear before the same judges or against the same prosecutors, since there are very few of both. There can be disadvantages to this, and it may be an incentive for the lawyers or clients to proceed in English.

There appears to be a need to increase the number of francophone or bilingual judges on the Provincial Court. When a seat becomes vacant on the Court of Queen's Bench and the Court of Appeal, a bilingual francophone judge should be appointed to each court.

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

In bankruptcy law, 60% (three out of five) of the lawyers say they are satisfied overall with judicial and legal services in French. There is a very high level of dissatisfaction concerning access to the case law and legal literature: over half of respondents (57% in respect of the case law and 71% in respect of the legal literature) say that it is not easy to access these documents. On the other hand, 57% report that it is easy to access pleadings. (See Table 6.5.)

The lawyers report a very high level of dissatisfaction concerning the possibility of obtaining services in French from officers of the superior court and courthouse support staff. Only 14% (one out of seven) say that it is easy to obtain services in French from court officers. None of the seven lawyers believes that it is easy to obtain services in French from support staff.

The situation is different for the judiciary. A majority of 57% (four out of four) find it easy to obtain services in French from judges. Only 14% (one out of seven) report that it is difficult to access those services. On the other hand, other observers in the legal system report gaps in this respect and propose that there be more bilingual judges to hear bankruptcy cases.

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

The situation as it relates to the law of divorce and support is similar to the situation in the field of bankruptcy law. In divorce law, 67% (four out of six) of the lawyers say that they are generally dissatisfied with services in French. There is a very high level of dissatisfaction in respect of access to the case law and legal literature: over half of the respondents (63% in respect of the case law and 75% in respect of the legal literature) say that it is not easy to access these documents. On the other hand, 75% report that it is easy to access pleadings, and 100% say that it is easy to access the legislation in French. (See Table 6.6.)

Access to services in French seems to be problematic when it comes to the officers of the provincial and superior courts and courthouse support staff. Only one out of eight lawyers (13%) report that it is easy to obtain services in French from officers of the superior court and from support staff. None of the five lawyers believe that it is easy to obtain services in French from officers of the provincial court.

For the judiciary, fewer than half (38%, or three out of seven) find it easy to obtain services in French from judges. This confirms the comments by other observers in the judicial system who say that there are gaps in this respect and propose that more bilingual judges be available in this area of the law.

Initiatives

Since 1996, when the Working Group on the Enhancement of French Language Services in Manitoba's Judicial System was established, Manitoba has been engaged in a systematic process of change. The fundamental objective of the process is to develop a permanent framework for implementing the principle of active offer of services in French[37] at all stages of the judicial process, whether criminal or civil. In 1998, Judge Richard Chartier submitted a report entitled "Above All, Common Sense: Report and Recommendations on French Language Services Within the Government of Manitoba". That report recommended, among other things, that a bilingual court be established in St. Boniface to serve all the designated bilingual areas of the province.

Manitoba has thus invested considerable effort in studying reforms of the administration of justice in French. The Chartier Report is based on the concept of designated bilingual territories and the creation of offices where the language of work would be French, using the "single window" approach, so that the public may be served in both languages under an active offer policy.

The ongoing work of the Working Group and the recommendations made by Judge Chartier comprise a genuine agenda for reform, and include measures that, when they have been completely implemented, should provide Franco-Manitobans with equal, high quality access to judicial and legal services in their own language. Concrete, appropriate initiatives have been identified in the course of that work. However, while those initiative are laudable, questions arise in terms of how speedily they will be implemented.

Possible Solutions

Federal

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

  • Extending the obligations imposed by section 530 of the Criminal Code to other areas of the law, including the provincial aspects of immigration;
  • Incorporating a language rights notification in police cautions;
  • Printing forms in both languages head-to-foot or, at a minimum, back-to-back, but not as one language per page;
  • Making evidence available in both languages at no additional cost to the accused;
  • Imposing real sanctions for failure to respect language rights, for example by making the provincial government cover all the additional legal costs occasioned by delays in the provision of services in French, in addition to staying proceedings, and informing the actors in the system (the police, prosecutors, court officers and the provincial department) of these potential consequences;
  • Educating young people about their language rights, by having speakers visit the francophone schools and immersion programs;
  • Appointing more bilingual judges to the Court of Queen's Bench and Court of Appeal;
  • Providing stable permanent funding for the AJEF and involving it as a partner in the development and administration of justice in French in the province;
  • Offering language training for judges and prosecutors;
  • Ensuring that the language training is given continuously and not sporadically;
  • Ensuring that there are francophone representatives on nominating committees for judges, to obtain nominations of bilingual candidates;
  • Providing financial assistance to the province for implementing the Chartier Report;
  • Providing financial assistance to the province for recruiting qualified bilingual judicial personnel.

Provincial

The following suggestions were made by the Working Group and are endorsed by the people who participated in this study.

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

  • Establishing a bilingual itinerant Provincial Court based in St. Boniface;
  • Establishing a bilingual office using the single-window approach for all judicial and legal services provided by Manitoba; the services of the Provincial Court and the Court of Queen's Bench would be combined under the same roof and delivered by the same francophone staff;
  • Establishing a videoconference link between the Court in St-Pierre-Jolys and the bilingual Provincial Court in Winnipeg to enable francophone offenders to enter their plea to highway traffic violations without having to travel;
  • Establishing a videoconference link between the RCMP detachment in St-Pierre-Jolys and a bilingual judge in Winnipeg, for urgent applications such as bail hearings;
  • Arranging for cases on the docket of the bilingual Provincial Court to be handled by prosecutors, whether federal or provincial, who are bilingual;
  • Arranging for the peace officers assigned to the Provincial Court to be bilingual and to wear badges identifying them as such;
  • Obtaining a provincial guarantee of a minimum number of bilingual judges on all of the courts in the province, and a statutory guarantee that francophones will sit on nominating committees for judges;
  • Having the provincial government establish an internal committee of deputy ministers and senior managers in the departments affected by judicial bilingualism that would report periodically to the Minister of Justice.

The following suggestions came out of the survey and consultation:

  • Arranging for the appropriate technology to be available for electronic filing of documents with the Court;
  • Designing and using automated document translation software for the police to use, combining technology and human intervention, to fill out information and summonses in French;
  • Preparing a list of bilingual lawyers who are capable of providing services in French, which would be kept up to date and made available by the RCMP in detachments located in designated bilingual areas under the French Language Services Policy, and by the Winnipeg police;
  • Making arrangements for the Department of Family Services to ensure that matters that will require court proceedings are handled by bilingual employees, for example in relation to child services, the family mediation service and the family violence prevention program;
  • Providing translations of evidence;
  • Arranging for interpretation services to be supplied free of charge for examinations on affidavits and examinations for discovery;
  • Making court reporters' transcripts available at no additional cost for translation;
  • Appointing bilingual judges to the Provincial Court to serve the francophone population.

Tables

Table 6.1: Perception of the Impacts of Proceeding in French
  Yes No Do not know
Delays in services 8 (53%) 5 (33%) 2 (13%)
Additional costs 6 (40%) 8 (53%) 1 (7%)
Unfavourable judgment 1 (7%) 12 (80%) 2 (13%)
Possible inscription in appeal 3 (20%) 9 (60%) 3 (20%)
Perceived fear, among the clients, of a negative impact on their case 4 (27%) 10 (67%) 1 (7%)
Table 6.2: Awareness and Application of Section 530 of the Criminal Code
  Yes No Do not know
Awareness of section 530 6 (50%) 5 (42%) 1 (8%)
Awareness of the stages in the process where there is a possibility of making decisions on language 8 (67%) 4 (33%) 0 (0%)
Lawyers who advise their clients each time the opportunity of making a linguistic choice arises 9 (75%) 1 (8%) 2 (17%)
Judges who advise the accused of their linguistic options each time the opportunity arises 4 (33%) 5 (42%) 3 (25%)
Availability of relevant forms in French 9 (75%) 0 (0%) 3 (25%)
Table 6.3: 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: 0 (0%) 7 (100%)
Generally speaking, regarding the availability of judicial and legal services in French in bankruptcy law, you are: 2 (40%) 3 (60%)
Generally speaking, regarding the availability of judicial and legal services in French in the law of divorce and support, you are: 2 (33%) 4 (67%)
Table 6.4: Availability of French Services and Documents According to Criminal Lawyers
  Yes No Do not know
From judges 6 (55%) 3 (27%) 2 (18%)
From officers of the Provincial Court 2 (18%) 7 (64%) 2 (18%)
From officers of the Superior Court 4 (36%) 6 (55%) 1 (9%)
From administrative officials at the Court House 3 (30%) 6 (60%) 1 (10%)
From federal prosecutors or legal agents of the Attorney General of Canada 6 (60%) 2 (20%) 2 (20%)
From provincial prosecutors and their substitutes 3 (27%) 5 (45%) 3 (27%)
From interpreters 8 (73%) 2 (18%) 1 (9%)
In legal proceedings in French 10 (91%) 0 (0%) 1 (9%)
To empanel a jury whose members are capable of hearing a case in French 4 (40%) 2 (20%) 4 (40%)
Of legislation in French 10 (91%) 0 (0%) 1 (9%)
Of case law, court rulings, etc. in French 3 (27%) 5 (45%) 3 (27%)
Of jurisprudence, i.e. legal sources, in French 4 (36%) 7 (64%) 0 (0%)
Table 6.5 Availability of French Services and Documents According to Lawyers in Bankruptcy Law
  Yes No Do not know
From judges 4 (57%) 1 (14%) 2 (29%)
From officers of the Superior Court 0 (0%) 4 (57%) 3 (43%)
From administrative officials at the Court House 1 (14%) 4 (57%) 2 (29%)
From interpreters 2 (29%) 3 (43%) 2 (29%)
In legal proceedings in French 4 (57%) 1 (14%) 2 (29%)
Of case law, court rulings, etc. in French 1 (14%) 4 (57%) 2 (29%)
Of jurisprudence, i.e. legal sources, in French 1 (14%) 5 (71%) 1 (14%)
Table 6.6 Availability of French Services and Documents According to Lawyers in the Law of Divorce and Support
  Yes No Do not know
From judges 3 (38%) 4 (50%) 1 (13%)
From officers of the Provincial Court 0 (0%) 2 (40%) 3 (60%)
From officers of the Superior Court 1 (13%) 5 (63%) 2 (25%)
From administrative officials at the Court House 1 (13%) 5 (63%) 2 (25%)
From interpreters 3 (38%) 3 (38%) 2 (25%)
In legal proceedings in French 6 (75%) 0 (0%) 2 (25%)
Of legislation in French 8 (100%) 0 (0%) 0 (0%)
Of jurisprudence, i.e. legal sources, in French 2 (33%) 6 (67%) 0 (0%)
Of case law, court rulings, etc. in French 1 (13%) 5 (63%) 2 (25%)

  • [29] R.S.M. 1987, c. C240
  • [30] R.S.M. 1987, c. C280
  • [31] R.S.M. 1987, c. C285
  • [32] R.S.M. 1987, c. C275
  • [33] R.S.C. 1985, c. Y-1
  • [34] http://www.gov.mb.ca/justice/court/court.html
  • [35] See also: Association des juristes d'expression française du Manitoba, Rapport sur la réforme de la Cour provinciale, June 1995
  • [36] Francophone Community Profile of Manitoba, Fédération des communautés francophones et acadienne (FCFA) du Canada, April 2000
  • [37] Guy Jourdain, Speech delivered at a colloquium, published in a special edition of the Revue de la common law en français in 2000 comprising the proceedings of the colloquium "Harmonization and Dissonance: Languages and the Law in Canada and France" held in 1999, Vol. 3, Nos. 1 and 2, pp. 67-86.
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