Environmental Scan: Access to Justice in Both Official Languages

Chapter 7: New Brunswick

Structure of the Judicial System

Judicature

Superior Courts

The New Brunswick Judicature Act[38] establishes two courts of record called the Court of Appeal of New Brunswick, which sits in Fredericton, and the Court of Queen's Bench of New Brunswick, which sits in various judicial divisions in the province.

The Court of Queen's Bench is composed of two divisions:

  • the Trial Division, and
  • the Family Division.

The Probate Act[39] also establishes the Probate Court of New Brunswick, which has jurisdiction over the probate and administration of estates. Every judge of the Court of Queen's Bench is ex officio a judge of the Probate Court.

The Divorce Court Act[40] also establishes the Court of Divorce and Matrimonial Causes.

Appeals from both of those courts are heard by the Court of Appeal of New Brunswick.

Provincial Courts

The Provincial Court Act[41] establishes the Provincial Court of New Brunswick to which is essentially conveyed the criminal and quasi-criminal jurisdiction of the province. That Court is also designated as the youth court for the purposes of the Young Offenders Act (Canada).

The Small Claims Court, which is established by the Small Claims Act,[42] is a court in which cases are heard by adjudicators appointed by the Lieutenant-Governor in Council.

Under section 9(1) of the Act, "if at any time an action involves a matter that is beyond the jurisdiction of the court, the court may order that the matter be transferred to The Court of Queen's Bench of New Brunswick". Appeals from the Small Claims Court are heard by the Court of Queen's Bench.

Constitutional Obligations

New Brunswick is one of the three provinces that have constitutional language obligations. In addition, the Canadian Charter of Rights and Freedoms contains the following provisions:

  • 16(2) English and French are the official languages of New Brunswick and have equality of status and equal rights and privileges as to their use in all institutions of the legislature and government of New Brunswick.
  • 16.1(1) The English linguistic community and the French linguistic community in New Brunswick have equality of status and equal rights and privileges, including the right to distinct educational institutions and such distinct cultural institutions as are necessary for the preservation and promotion of those communities.
  • 16.1(2) The role of the legislature and government of New Brunswick to preserve and promote the status, rights and privileges referred to in subsection (1) is affirmed.
  • 19(2) Either English or French may be used by any person in, or any pleading in or process issuing from, any court of New Brunswick.

Provincial Legislation

In 1969, New Brunswick enacted the Official Languages of New Brunswick Act.[43] Paragraph 2(a) of that Act provides that English and French are the official languages of New Brunswick "for all purposes to which the authority of the Legislature of New Brunswick extends". They enjoy equality of status and equal rights and privileges as to their use for the purposes contemplated in paragraph (a).

Subsection 13(1), which was proclaimed in 1972, guarantees "any person appearing or giving evidence" before a court the right to "be heard in the official language of his choice".

Subsection 13(1.1) of the Act, which was proclaimed in 1990, guarantees a person accused of an offence under an Act or a regulation of the province, or a municipal by-law, the right to have the proceedings conducted in the official language of his or her choice, and to be advised of the right by the presiding judge before his or her plea is taken. 

The right provided in subsection 13(1.1) includes:

  • the right to be heard by a court that understands the official language without the need for translation;[44]
  • the power to appoint persons to the court to give effect to the obligations set out in 13(1.2);[45]
  • the fact that persons appointed under 13(1.3) have the same powers as the persons who generally perform the function in question.[46]

New Brunswick has not made regulations under section 533 of the Criminal Code. However, because of its constitutional and statutory obligations, judges and court staff who speak the official language of the accused should normally be available for all preliminary inquiries and all trials. In addition, the provision for active offer in section 530 should be the norm. However, it would appear that this is not always the case.

Profile of the Francophone Community[47]

Demographics

New Brunswick is divided into two large language groups. Of the 729,630 residents, 66.8% have English as their mother tongue. Francophones make up 33.2% of the total population (242,408 according to the 1996 census).

The number of people with French as their mother tongue has consistently increased between 1951 and 1991: from 185,110 to 243,690, reflecting the vitality of a community that has been hardly touched by linguistic assimilation. Since 1991, the size of the population having French as their mother tongue has been constant while the total population of the province has increased by only 1.8 percent.

Geography

Acadians are mostly located along the coasts from Cap Pelé to Miscou and in the interior as far as Saint-Jacques. There are three areas of high concentration: Madawaska, the Acadian Peninsula in the northeastern and southeastern parts of the province. The seven counties of Gloucester, Kent, Madawaska, Northumberland, Restigouche, Victoria and Westmorland are home to 93.5% of the province's francophones. Four of these counties have a majority of francophones with the percentages varying from 62% to 94%.

The Acadians of New Brunswick generally live in the many small rural communities within the interior. There francophones are found in sizeable majorities; however, the communities are separated from each other by the stretches of forest or by wholly anglophone corridors as in the Miramichi Valley, or by zones consisting of francophone and anglophones such as the Moncton area. Some urban centres have become centres of French life. These include Edmundston in Madawaska, which is 91 percent francophone, and Bathurst, and Moncton/Dieppe, which, respectively, have a 49% and 39% francophone population.

Economy

The traditional pillars of the Acadian economy in New Brunswick were fishing, forestry and agriculture. Acadians organized financial institutions for themselves through the cooperative movement and an insurance company. Acadian entrepreneurs are present in the services and production sectors. Today business ventures are turning towards information technology and communications. The tourist industry has recently experienced strong growth and is also flourishing.

Education

New Brunswick is the only Canadian province to have a bilingual education system. Education in French is available everywhere in the province. Education in French is accessible in all Acadian areas. There are 143 French-language schools, including nursery, elementary and high schools. New Brunswick also has the Université de Moncton and its campuses in Moncton, Shippagan and Edmundston. In 1980, the Université de Moncton created a law school that includes the Centre international de common law en français and the Centre de traduction et de terminologie juridique. The school became the faculty of law in 2001, and is now nationally recognized for its specialization in teaching common law solely in French.

Francophones have access to a network of four francophone community colleges for college and technical studies (Bathurst, Edmundston, Campbellton and Dieppe).

Voluntary Sector

The Société des Acadiens et Acadiennes du Nouveau-Brunswick (SAANB) is the main organization representing francophones in the province, with 20,000 members. The SAANB, which was founded in 1973, is a member of the Société nationale de l'Acadie (SNA) and the Fédération des communautés francophones et acadienne (FCFA) du Canada. The association's objectives include the recognition of a distinct Acadian society, the creation of French and bilingual institutions, the affirmation of French in the face of increasing assimilation, the safeguarding of rights in a context of government restructuring, the promotion of dialogue between organizations, and the elaboration of a global development plan for the Acadian community.

The francophone legal community has organized an association, the AJEFNB, which has 250 members and promotes judicial and legal services in French in the province.

Profile of Respondents

Occupational Distribution of AJEFNB Members

Of the 250 AJEFNB members who were asked to respond to the survey, 40 sent us their responses. Of those, we find that 34 are lawyers in private practice, representing 85% of survey respondents. In the analysis that follows, we refer to those 34 lawyers as "lawyers". For some questions, where the response of lawyers is most relevant, the analysis will relate to those 34 respondents. For other questions, the analysis will relate to all respondents. Given that the AJEFNB estimates that about 60% of its members are lawyers in private practice, the 34 responses received from lawyers represent a response rate of about 22%. The 40 responses themselves represent 16% of the total number of members of the AJEFNB.

Other actors in the judicial system

Responses received from other actors in the New Brunswick judicial system came from judges, prosecutors, administrators or court clerks and representatives of the provincial Department of Justice.

Regional Distribution of AJEFNB Members who Responded to the Survey

These respondents were divided into three categories based on where they usually practice: northern New Brunswick, which has the highest concentration of francophones; the southeast, where Moncton is the urban centre for the surrounding judicial districts and francophones make up about 49% of the population; and the other regions of the province, where francophones are a small minority.

As shown in Table 7.1, a very large majority of lawyers and other members of the AJEFNB usually work in the northern and southeastern regions, in the districts which have higher concentrations of francophones, while a small minority practises in the regions which have high concentrations of anglophones.

Mother Tongue and Language of Work of AJEFNB Members

We find that 33 of 34 lawyers, or 97%, have French as their mother tongue.

Of those lawyers, 88% work in French and English. Only one lawyer works exclusively in English, while three (9%) work exclusively in French. Those figures seem to reflect the bilingual nature of the province, and provide an accurate representation of the linguistic backdrop to the practice of law by francophone lawyers.

If we consider the language of work of all members of the AJEFNB, 85% report working in French and English, 13% work in French only and 2% work in English only.

Language of Legal Studies and Place where Lawyers Studied Law

Table 7.2 shows that 76% of the lawyers studied law in French, while 18% studied law in French and English. Only two respondents out of 34 (6%) studied law in English. We note that 74% of the lawyers studied law at the Faculté de droit of the Université de Moncton, in French, while 6% studied law at the University of Ottawa Faculty of Law. Seven lawyers in private practice (20%) studied law elsewhere than in Ottawa or Moncton. A very large majority of those lawyers are francophones who studied common law in English, probably before the École de droit at the Université de Moncton was established.

Supply of and Demand for Services in French

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

As Table 7.3 shows, the lawyers estimate the proportion of the clients who are French-speaking to be 66%. In addition, 71% of those clients request legal services in French.

These figures tell us that there is sufficient demand by persons appearing before the courts in New Brunswick, and a sufficient critical mass of francophone lawyers, to justify a judicial system that would function entirely in French. This also tells us that persons appearing in the courts seem to have enough confidence in the capacity of the system to function adequately in French that they decide to proceed in French.

The figures relating to the perception of the impact of proceeding in French and the barriers to doing so that we shall analyse later will undoubtedly add to and qualify these observations.

However, it must be noted that in New Brunswick, the proportion of the lawyers' clients who are francophone and the level of demand for services in French vary by region. On this point, see Table 7.4.

Proportion of clients who are francophone and demand for services in French, by region

For instance, in the judicial divisions in northern New Brunswick, where there is a heavier concentration of francophones, the proportion of the lawyers' clients who are francophone is very high (86%). We note that these clients have an even stronger tendency to request services in French (90%). In the southeast, which may be described as mixed in terms of the linguistic distribution of the population, as compared to the north, francophones represent a smaller proportion of the francophone lawyers' clients (56%), and those francophone clients are more reluctant to request services in French (60%).

Although the differences observed in the situations between these two regions are significant, it must not be forgotten that a majority of the francophone lawyer's clients in the southeast are francophone, and that 60% of them request services in French.

In the judicial divisions where francophones are small minorities, it is difficult to go beyond impressions, since there are very few respondents there and they do not represent all of the regions that have large anglophone minorities. However, we note that in those divisions, the proportion of the respondents' clients who are francophone is small (15%) and that those clients are even more reluctant to proceed in French.

When taken together, these observations seem to be consistent, and adding to the number of respondents in regions where francophones are a very small minority would probably confirm this impression.

Views of Other Actors in the Judicial System

The Department of Justice provided us with data concerning the language used in the New Brunswick courts in 2001. We reproduce those figures in full in Table 7.5, which shows that about 30% of criminal trials, in the Provincial Court, the Court of Queen's Bench and the Court of Appeal, are held in or use French. This linguistic breakdown is a fairly accurate reflection of the demographic weight of the two official language communities in the province

For the districts in the north, Campbellton in Restigouche County or Bathurst in Gloucester County, the respondents believe that French is used regularly in the courts. In Bathurst, for example, we are told that a majority of trials, and possibly as many as 75%, are held in French.

In the southeast, the situation is not as straightforward. A lower number of requests for trials in French in the Court of Queen's Bench is reported.

In the regions with anglophone majorities, whether we look at St. John, Fredericton, Woodstock or Miramichi, the respondents tell us that requests for trials in French are very rare. We are also told that some years, there are no requests. According to the respondents, if a situation arises, the trial can be transferred to a district where the case can be heard. The situation described in the regions with large anglophone majorities suggests that some francophones appearing before the courts in those regions are generally not exercising their right to obtain judicial and legal services in their language.

In the interviews we held, some participants commented that in the more heavily anglophone regions of the province, judicial and legal services have an English face, and this gives a francophone the impression that the courts are an anglophone service. The anglophone environment in the court has a considerable influence on individuals appearing there when it comes time to choose the official language in which the proceedings will be held. People often agree to proceed in the majority official language, particularly since, even though services is theoretically available in French, the request always has to be made. The risk in this situation is that it will reduce the demand for judicial and legal services in French in those districts.

Perception of Impact of Proceeding in French

There seem to be problems of varying degree in terms of the five factors that could have negative effects on the decision as to whether to proceed in French.

Based on Table 7.6, we shall deal first with the factors where the highest proportion of lawyers report negative effects.

Delays in providing services

We are told by 56% of respondents that there are delays occasioned by choosing to proceed in French. A number of other actors in the judicial system told us that in judicial districts where the judge is a unilingual anglophone, a request to proceed in French results in an adjournment, which leads to delay in providing services.

Additional costs

The second most important factor reported, which seems to stem from the first, is that the decision to proceed in French occasions additional costs for the person appearing before the court. However, we note that opinion is more divided on this than on the question of delay. While 42% of the lawyers believe that additional costs are a factor in deciding whether to proceed in French, 48% of them say the opposite.

Other impacts

For the other three factors, the impact seems to be less significant: 70% of the lawyers believe that if it is decided to proceed in French there is no negative effect on the judgment and 73% believe that there is no impact on the possibility of appealing.

Perception of a fear of the negative impact of proceeding in French on the part of persons appearing before the courts

On the question of whether the lawyers perceive a fear of negative impact if someone proceeds in French, 64% of them think there is none.

Perception of impact of proceeding in French, by region

Do lawyers' opinions differ, depending on the region where they usually practise law? Of the 12 respondents from districts in northern New Brunswick, 66% believe that proceeding in French causes additional delays. Of the 19 respondents in the southeast, 50% believe that there are additional delays.

On the question of the impact on costs, 42% of the lawyers in the north are of the opinion that proceeding in French may occasion additional costs, while 47% in the southeast believe this.

With respect to other impacts, the differences between respondents in the north and those in the southeast do not seem to be significant, and the opinions expressed follow the general trend noted in the preceding paragraph.

It does seem that despite the differences between the perceptions of respondents in the north and southeast, these factors, taken together, are challenges that must be overcome in certain regions of New Brunswick.

We compared the responses from the lawyers with those from all 40 respondents, and found that there was no significant difference between the two groups.

Awareness and Application of Section 530 of the Criminal Code

Table 7.7 sets out the survey questions and responses relating to awareness and application of section 530 of the Criminal Code.

First, it must be noted that a limited number of lawyers (ranging from six to 13, depending on the question) responded to the questions relating to barriers to access to judicial and legal services in French in criminal law matters. This reflects the number of respondents who have direct knowledge of the question because they practice in this field. These figures must therefore be interpreted very cautiously, because the number of comments is relatively low. We therefore analyse the data at the provincial level only, and do not attempt to identify any trends at the regional level.

On the question of section 530 of the Criminal Code, 11 lawyers out of 13 (85%) say that they are aware of it. The other actors in the system whom we interviewed all said that they are aware of section 530 of the Criminal Code.

Respect for the spirit of section 530 on the lawyers' part seems more problematic: only seven respondents out of 12 (58%) say that they are aware of the points at which the client has an opportunity to make a choice of language. That would seem to be a very important observation, since lack of knowledge of the points in question means that the proper procedures may not be followed, and this amounts to denying the person before the court his or her right. As to whether the lawyers inform their clients of the opportunity to make a choice of language, nine out of 11 say that they do.

It must be noted that the obligation to inform accused persons under section 530 is imposed on judges, in cases where the accused is not represented by counsel. Although the section does not refer to any obligation on a lawyer to inform his or her client of the provisions of section 530, the wording of the obligation imposed on the judge suggests that when an accused is represented by a lawyer, the lawyer is the one who should inform the client of his or her rights under section 530. The fact that 15% of the respondents admit that they are not aware of the existence of section 530 and that 42% cannot say that they know the points at which it applies is problematic, and should be a concern for the AJEFNB, the law faculties and the Law Society, in view of its continuing legal education function. We shall return to this question in the section on possible solutions.

As to whether the respondents believe that judges inform unrepresented accused persons of their rights under section 530, nine out of 12 (75%) of the respondents say that they do not. Although that is a high proportion, in fact 25% of the respondents express no opinion on this subject.

Views of other actors in the judicial system

A large majority of the other actors in the judicial system whom we asked whether, to their knowledge, judges fulfil their obligation under section 530 responded judges do comply with the requirements of that section. However, we note what was said by one of our respondents, which was that section 530 of the Criminal Code requires active offer, and this may not always be done. The statistics provided by the provincial Department of Justice, however, seem to indicate that francophone accused exercise their right to proceed in French relatively freely.

According to the officials and administrators in the system, it is not difficult to a francophone accused to have access to the justice system in French throughout New Brunswick. However, that is not the view of other actors, who point out that in some cases the fact that one of the lawyers in a case is unilingual will persuade francophone accused to proceed in English. If an accused requests that a proceeding be in French, translation services will be used. We were also told that the translation services are adequate, but that providing judicial and legal services by way of translation is not the real solution.

Of the lawyers, 50% believe that forms are available in French. This corresponds to the opinion expressed by certain other actors in the judicial system, who say that forms are not always available in French. According to court officials and administrators, the forms exist in both official languages, and they specify that an accused may state his or her preference for the official language of the proceedings.

Active Offer of Service

According to seven of the 12 lawyers, or 58%, there is an active offer of service policy in New Brunswick. The five other lawyers (42%) believe that there is no policy, or do not know whether there is a policy, as shown in Table 7.8.

In general, the other respondents who work in the judicial system say that the policy includes signs posted in offices and the courts stating that services are available in French. Persons appearing before the courts can be served by telephone in both official languages, and have access to bilingual staff. We were sent a copy of New Brunswick's policy on the active offer of service in both official languages; it is a general statement that applies to all staff of the departments and agencies of the Government of New Brunswick. The policy is directed to staff, to provide them with guidelines for dealing with the public in both official languages.

Barriers to Access to Justice in French

Overall Level of Satisfaction with Judicial and Legal Services in French

The survey included three questions relating to the lawyers' general satisfaction with the functioning of the judicial system in French in the three areas of the law under federal jurisdiction being considered. Table 7.9 shows the questions and answers obtained.

In general, the lawyers who responded to the survey report that they are satisfied, overall, with legal services in French in criminal law (92% satisfaction rate) and divorce law (100% satisfaction rate). However, opinion is much more divided in respect of bankruptcy law: 50% of respondents report that they are satisfied overall.

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

Table 7.10 shows the questions and the lawyers' answers in relation to how easy it is to obtain services in French from judges and various court officers and to obtain the relevant documents in criminal cases.

In New Brunswick, the services that seem to be easiest to obtain in French are those provided by provincial prosecutors: 92% of respondents believe that it is easy to obtain those services.

The most difficult services to obtain are those provided by federal prosecutors, even though the federal government has long followed a policy of official bilingualism: 54% of survey respondents believe that it is easy to obtain this type of services in French. From the information we obtained from other sources concerning bilingual prosecutors, about 50% of federal prosecutors are able to work in both official languages.

On the question of services in French offered by judges, 77% of the lawyers believe that it is easy to obtain them. The proportion of judges who are bilingual is highest in the areas in northern New Brunswick. In the southeast, a slightly smaller proportion of judges are bilingual. In the areas where francophones are a very small minority (St. John, Fredericton and Miramichi), the proportion of judges who are bilingual is simply inadequate. In some courts, there are no bilingual judges. We are told that, if necessary, a francophone judge from another area may come in to hear the case, or the proceedings may be moved to a court in a judicial division where a bilingual judge can hear the case.

The number of bilingual judges on the Court of Appeal and Court of Queen's Bench is inadequate to guarantee access to justice in both official languages. The bilingual judges on the Court of Queen's Bench must travel throughout the province.

Some people also told us that the chief justices of the various levels of courts do not all have sufficient language proficiency to communicate adequately with the other judges, support staff and members of minority language communities who appear in the courts in both official languages.

It is said to be a little more difficult to obtain services in French from court officers in the Provincial Court (69%) and support and administrative staff in the judicial system in areas where francophones are a very small minority. In particular, it was pointed out that in the provincial capital area judicial and legal services in the Provincial Court have a distinctly anglophone face.

We note also that 85% of the lawyers are of the opinion that it is easy to obtain services in French from court officers in the superior court and administrative staff at the courthouse.

These figures reflect an adequate level of accessibility in relation to services in French offered by the various actors in the judicial system in the areas that have higher concentrations of francophones. However, even in those areas, this does not mean that there is no room for improvement, given that there is a federal policy of official bilingualism and that this is the only province in Canada that is recognized in the Constitution as officially bilingual.

In the areas where francophones are very small minorities, whether in the provincial capital, St. John, Woodstock or Miramichi, bilingual personnel are not sufficiently available and remedial measures are needed. This will be addressed in the section of this report dealing with possible solutions.

In the opinion of 10 respondents out of 13 (77%), interpretation services are readily available. We still need to ask whether, given that New Brunswick is officially bilingual, the frequent use of translation or interpretation services is not an indication of a problem in terms of the system's capacity to function in French. If so, this is a gap that must be remedied, and the use of interpretation and translation services should become the exception rather than the rule.

We note that 100% of the respondents have access to legislation in French, this being an accurate reflection of the bilingualism of Parliament and the provincial legislature. Only 31% of respondents are of the opinion that it is easy to access the legal literature in French. On the question of case law in French, 69% of respondents believe that it is easy to access.

The same proportion of the respondents (69%) believe that it is easy to empanel a jury who can understand the case in French. However, according to the other actors in the judicial system, it is somewhat difficult to empanel a jury of people who are sufficiently bilingual to hear a case in French, except in northern New Brunswick. The lower the concentration of francophones in a region, the more difficult it is to empanel a jury of this sort.

We would also mention a comment made about certain francophone lawyers who do not always make their argument in French at a trial held in the minority language.

As well, some people were critical of the fact that there is no language proficiency standard that could be used as a guide in hiring support staff in the judicial system, and that no language training program has been implemented by the province to enable judges and judicial personnel to upgrade their proficiency in both official languages.

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

Table 7.11 sets out the survey questions and responses in relation to how easy it is to obtain services in French from judicial personnel in bankruptcy cases.

According to five of the 11 respondents (45%), it is easy to obtain services in French from judges in bankruptcy cases. Fifty-five percent of the lawyers are satisfied with the services in French from officers of the superior court, and the level of satisfaction increases to 70% for courthouse administrative staff. Although the question was not asked, sources who are well informed regarding the bankruptcy law situation in New Brunswick tell us that there are more problems in relation to bailiff services in French.

To summarize, this table shows that in bankruptcy cases, access to documents in French is a problem, and it is more difficult to obtain interpretation services than in the other fields under federal jurisdiction. This situation also calls for remedial action, given that New Brunswick is officially bilingual.

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

Table 7.12 sets out the questions and the responses of lawyers who practise family law in relation to how easy it is to obtain judicial and legal services and documents in French in this area of the law.

According to 15 of the 16 respondents (94%), it is easy to obtain services in French from a judge in this area of federal jurisdiction in New Brunswick. The level of satisfaction is also high among respondents with respect to the accessibility of services in French from officers of the superior court (87%) and administrative staff at courthouses (80%). However, there seems to be room for improvement with respect to the accessibility of services in French from officers of the provincial court (67%). We would note that the same comment was made in relation to criminal law.

All of the lawyers practising the law of divorce and support, 100%, believe that it is easy to access legislation in French, while 94% find it easy to access pleadings in French. Access to the legal literature in French, as in the case of criminal law, is more problematic: only 25% of the respondents say that it is easy to access. There also seems to be room for improvement in terms of access to the case law in French: 10 respondents out of 16 (63%) believe that it is easy to access the case law in French.

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:

  • Promoting the appointment of judges who have sufficient oral and written proficiency in both official languages to preside over a trial in either official language in all areas of the province.
  • Ensuring that full-time representatives of the Crown employed by the federal government inquire at a very early point 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.
  • Ensuring 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.
  • Ensuring 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.
  • Ensuring 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.
  • Implementing a process to ensure that forms, documentation and legal precedents in criminal, bankruptcy and family law are readily accessible in both official languages everywhere in the province.
  • Encouraging the translation of legal literature into French, or the production of original works in that language.
  • Developing continuing education programs for judges and lawyers on practising law, and making written and oral argument, in French. Actively encourage judges and lawyers to participate in those programs.
  • Continuing work on standardizing the common law in French.
  • Encouraging more contacts between the provincial, territorial and federal departments of justice in respect of access to justice in French. The Department of Justice of Canada should play a leadership role in this project.
  • Ensuring that more members of the Royal Canadian Mounted Police are bilingual, throughout the province.
  • Ensuring that members of the RCMP are aware of their active offer obligations in relation to language.
  • Including a provision in the Bankruptcy Act that would be similar to section 530 of the Criminal Code and would ensure that the process takes place in the language of the bankrupt and not the language of the trustee.
  • Conducting a campaign to raise awareness among the public of their language rights and of the fact that they have the right to proceed in the courts in the official language of their choice without being put at a disadvantage as a result of their choice.
  • Increasing the funding for the AJEF to enable them to do more in relation to access to judicial and legal services in French.
  • Continuing and strengthening the Court Challenges Program.

Provincial

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

  • Adopting a provincial government policy of recruiting bilingual employees who are proficient in the minority language into the Department of Justice and the courts. The provincial government should adopt criteria and language tests by which the level of knowledge of the minority official language, both oral and written, can be measured.
  • Ensuring that judges, court officers, prosecutors and lawyers are aware of the language rights of individual appearing in the courts, or their clients, as the case may be, and that they make an active offer of service.
  • Ensuring that judges, court officers, prosecutors and lawyers are up to date on new developments in language law.
  • Implementing a provincial government language-training program to enable judges to upgrade their proficiency in both official languages. The government should temporarily release judges from their duties if they wish to upgrade their proficiency in the minority official language.
  • Ensuring that the new information and communications technologies are used in the delivery of judicial and legal services in both official languages. The judicial system of the province should create a bilingual site on the Internet (a web site) to disseminate information about their services at all levels of the courts, and about the documentation available. New Brunswick is the only province in Canada where the judicial system does not have that kind of site.
  • Appointing bilingual Crown counsel in the francophone and bilingual areas of the province
  • Ensuring that there are sufficient bilingual personnel in all the courts and courthouses in the province.
  • Ensuring that there is active offer of service in the language of the individual appearing before the courts, in all the courthouses in the province.
  • Increasing the funding provided for translating judicial decisions.
  • Developing a program to encourage lawyers to acquire proficiency in both official languages so that they can better serve clients in their own language and avoid the delays in proceedings caused by translation.
  • Ensuring that the support staff in the judicial system develops their language proficiency. The province should adopt language proficiency standards that could be used as a guide in hiring support staff to work in the judicial system.
  • Ensuring that judges and courthouse staff are aware of how to address francophones who are appearing in the courts in such a way as to invite them to request services in their language.
  • Changing the perception among francophones that the judicial system in the bilingual areas of the province is distinctly anglophone and making it plain that judicial and legal services are genuinely provided in both official languages.
  • Enabling all judges in the province to familiarize themselves with legal terminology in both official languages, by having a bilingual Criminal Code.
  • Using videoconferencing in the anglophone areas where bilingual judges are less available for appearances by individuals who are members of the minority language group, to avoid adjournments and delays.

Other

  • The law faculties should ensure that they train more lawyers who are capable of practising and offering legal services in both official languages, and making law students aware of the language rights of people appearing in the courts.
  • The Law Society and lawyers in private practice should be more sensitive to questions relating to access to justice in both official languages and to language rights in general. New Brunswick's Code of Ethics should include a provision requiring that lawyers inform their clients of their language rights.

Tables

Table 7.1: Regional Distribution of Lawyers and Respondents
Regions Total Respondents Lawyers
Number Percentage Number Percentage
North 14 39% 12 35%
Southeast 19 53% 19 56%
Other 3 8% 3 9%
Province 36 100% 34 100%
Table 7.2: University and Language of Legal Studies
University/Language of legal studies Moncton Ottawa Other Total
French 24   1   1   26 (76%)
English 0   0   2   2 (6%)
French and English 1   1   4   6 (18%)
Total 25 (74%) 2 (6%) 7 (20%) 34 (100%)
Table 7.3: Proportion of French-Speaking Clientele and the Demand for Legal Services in French for All Regions
Proportion of French-speaking clientele 66%
Proportion of French-speaking clientele demanding legal services in French 71%
Table 7.4: Proportion of French-Speaking Clientele and the Demand for Legal Services in French within Each Region
  North Southeast Other
Proportion of French-speaking clientele 86% 56% 15%
Proportion of French-speaking clientele demanding legal services in French 90% 60% 10%
Table 7.5: Language Used in the courts of New Brunswick 2001[48]
Language of legal proceeding Number
Bilingual with an interpreter 6
Bilingual 10
In French with an interpreter 18
In French only 2480
In English with an interpreter 20
In English only 8375
Total 10909
Table 7.6: Perception of the Impacts of Proceeding in French
  Yes No Do not know
Delays in services 18 (56%) 11 (34%) 3 (9%)
Additional costs 14 (42%) 16 (48%) 3 (9%)
Unfavourable judgment 6 (18%) 23 (70%) 4 (12%)
Possible inscription in appeal 1 (3%) 24 (73%) 8 (24%)
Perceived fear, among the clients, of a negative impact on their case 5 (16%) 20 (63%) 7 (22%)
Table 7.7: Awareness and Application of Section 530 of the Criminal Code
  Yes No Do not know
Awareness of section 530 11 (85%) 2 (15%) 0 (0%)
Awareness of the stages in the process where there is a possibility of making decisions on language 7 (58%) 3 (25%) 2 (17%)
Lawyers who advise their clients each time the opportunity of making a linguistic choice arises 9 (82%) 2 (18%) 0 (0%)
Judges who advise the accused of their linguistic options each time the opportunity arises 9 (75%) 0 (0%) 3 (25%)
Availability of relevant forms in French 6 (50%) 0 (0%) 6 (50%)
Table 7.8: Active Offer of Service
  Yes No Do not know
Existence of a policy on the active offer of service in both official languages in the province 7 (58%) 2 (17%) 3 (25%)
Table 7.9: Overall Level of Satisfaction with Judicial and Legal Services in French
  Satisfied Not satisfied Total
Generally speaking, regarding the availability of judicial and legal services in French in criminal law, you are: 11 (92%) 1 (8%) 12 (100%)
Generally speaking, regarding the availability of judicial and legal services in French in bankruptcy law, you are: 4 (50%) 4 (50%) 8 (100%)
Generally speaking, regarding the availability of judicial and legal services in French in the law of divorce and support, you are: 16 (100%) 0 (0%) 16 (100%)
Table 7.10: Availability of French Services and Documents According to Criminal Lawyers
  Yes No Do not know
From judges 10 (77%) 1 (8%) 2 (15%)
From officers of the Provincial Court 9 (69%) 2 (15%) 2 (15%)
From officers of the Superior Court 11 (85%) 0 (0%) 2 (15%)
From administrative officials at the Court House 11 (85%) 2 (15%) 0 (0%)
From federal prosecutors or legal agents of the Attorney General of Canada 7 (54%) 2 (15%) 4 (31%)
From provincial prosecutors and their substitutes 12 (92%) 0 (0%) 1 (8%)
From interpreters 10 (77%) 1 (8%) 2 (15%)
In legal proceedings in French 11 (85%) 1 (8%) 1 (8%)
To empanel a jury whose members are capable of hearing a case in French 9 (69%) 1 (8%) 3 (23%)
Of legislation in French 13 (100%) 0 (0%) 0 (0%)
Of case law, court rulings, etc. in French 9 (69%) 3 (23%) 1 (8%)
Of jurisprudence, i.e. legal sources, in French 4 (31%) 7 (54%) 2 (15%)
Table 7.11: Availability of French Documents and Services According to Lawyers in Bankruptcy Law
  Yes No Do not know
From judges 5 (45%) 2 (18%) 4 (36%)
From officers of the Superior Court 6 (55%) 0 (0%) 5 (45%)
From administrative officials of the Court House 7 (70%) 0 (0%) 3 (30%)
From interpreters 6 (60%) 0 (0%) 4 (40%)
In legal proceedings in French 5 (50%) 2 (20%) 3 (30%)
Of case law, court rulings, etc. in French 3 (30%) 3 (30%) 4 (40%)
Of jurisprudence, i.e. legal sources, in French 2 (20%) 4 (40%) 4 (40%)
Table 7.12: Availability of French Documents and Services According to Lawyers in Law of Divorce and Support
  Yes No Do not know
From judges 15 (94%) 1 (6%) 0 (0%)
From officers of the Provincial Court 10 (67%) 1 (7%) 4 (27%)
From officers of the Superior Court 13 (87%) 1 (7%) 1 (7%)
From administrative officials of the Court House 12 (80%) 2 (13%) 1 (7%)
From interpreters 13 (81%) 1 (6%) 2 13%)
In legal proceedings in French 15 (94%) 1 (6%) 0 (0%)
Of legislation in French 15 (100%) 0 (0%) 0 (0%)
Of case law, court rulings, etc. in French 4 (25%) 10 (63%) 2 (13%)
As to jurisprudence, i.e. legal sources, in French 10 (63%) 4 (25%) 2 (13%)

  • [38] R.S.N.B. 1973, c. J-2
  • [39] R.S.N.B. 1973, c. P-17.1
  • [40] R.S.N.B. 1973, c. D-12
  • [41] R.S.N.B. 1973, c. P-21
  • [42] R.S.N.B. 1973, c. S-9.1
  • [43] R.S.N.B. 1973, c. O-1
  • [44] Supra. note 6, subs. 13(1.2)
  • [45] Ibid. subs. 13(1.3)
  • [46] Ibid. subs. 13(1.4)
  • [47] Francophone Community Profile of New Brunswick, Fédération des communautés francophones et acadienne (FCFA) du Canada, May 2000
  • [48] This data includes both civil and criminal cases brought before the Court of Appeal and the Provincial Court, and the criminal trials of the Court of Queen's Bench. We only took into account the language of proceedings in which accusations resulted in trial for cases ending in 2001. If an accusation lead to a trial in which both official languages were used, it is tabulated in each item. An accusation with multiple hearings in the same language is counted only once. In cases where there are multiple accusations in a single trial, each accusation is counted. The results are based on the accusation and not the case. Source: Department of Justice, Province of New Brunswick.
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