Environmental Scan: Access to Justice in Both Official Languages

Chapter 8: Nova Scotia

Structure of the Judicial System

Judicature

Superior Courts

The Nova Scotia Judicature Act[49] establishes two superior courts of record called the Nova Scotia Court of Appeal, which sits in Halifax,[50] and the Supreme Court of Nova Scotia, which sits in various judicial divisions in the province.

The Supreme Court also has a division called the Supreme Court (Family Division), which has jurisdiction over all family law matters, but sits exclusively in the regional municipality of Halifax and in Cape Breton.

The Probate Act[51] establishes a court for the probate and administration of wills called the Court of Probate. Each judge of the Supreme Court is a judge of every court of probate.

The Provincial Court

The Nova Scotia Provincial Court Act[52] establishes the Provincial Court of Nova Scotia, to which is essentially conveyed the criminal and quasi-criminal jurisdiction of the province.

The Family Court Act[53] also establishes the Family Court for the Province of Nova Scotia. The Family Court has jurisdiction in family law and young offenders cases outside the regional municipality of Halifax and Cape Breton.[54]

Under the Night Courts Act,[55] the Attorney General may by order direct a judge of the Provincial Court or a justice of the peace to hold a night court.

The Small Claims Court Act[56] also establishes the Small Claims Court of Nova Scotia, in which cases are heard by an adjudicator. Appeals from that Court are to the Supreme Court. However, the judgments of the Supreme Court in cases on appeal from the Small Claims Court may not be appealed.

Constitutional Obligations

There is no constitutional obligation to provide services in French in Nova Scotia.

Provincial Legislation

In 1994, a Special Committee of the Canadian Bar Association - Nova Scotia Branch made a number of recommendations regarding access to justice in the language of the francophone minority of Nova Scotia.[57] It noted that legal services in French were available in the Small Claims Court, the Family Court and the Probate Court, and at the Residential Tenancies Board. The Committee also learned that instruments could be registered in French and wills written in French could be probated (although in those cases a translation of the documents had to be included for registering on title and for probating wills), and that a number of bilingual employees were available to individuals seeking information at the courthouses.

Nova Scotia has not yet made regulations under section 533 of the Criminal Code. However, the right to a trial in the official language of the accused's choice has been raised, in R. v. Deveaux.[58] In that case, the Supreme Court of Nova Scotia had to consider the question of whether a judge of the Provincial Court had an obligation to inform an accused who was unrepresented by counsel of his right to have his trial proceed in the official language of his choice. Edwards J. considered the decision of the Supreme Court in Beaulac and concluded that the judge of the Provincial Court had no choice but to inform the accused of his rights under section 530. The failure of the judge to provide that information at trial was therefore a violation of the rights of the accused. In that case, the Court ordered a new trial.

Profile of the Francophone Community[59]

Demographics

The population of Nova Scotia is quite homogeneous with respect to language. Of the province's 899,970 residents, 93.2% have English as their mother tongue. Francophones make up 4% of the total population (36,311 according to the 1996 census).

The number of Nova Scotians with French as their mother tongue has essentially been the same since 1951, varying between 35,000 and 40,000. It was slightly less 1996 than in 1991. This stability bears witness to the strength of the Nova Scotian Acadian community, which has been able to maintain the numbers necessary for its development.

Geography

Acadians are concentrated in two main regions, Cape Breton Island and the southwestern part of the province. If one also includes Halifax, which has the largest number of Nova Scotia francophones, these areas comprise 80% of Nova Scotia's francophones. They are also numerous within certain regions of the province, and are in the majority in two of the eight municipalities of Digby and Yarmouth counties: Clare and Argyle. The French fact holds sway on Isle Madame, located off of Cape Breton Island. Acadians are 40% of the population north of Inverness where they form a base for the community organization of many villages such as Cheticamp.

Economy

The main economic activity of Acadians is still in-shore and off-shore fishing. The decline of fish stocks and the drastic reduction of fishing quotas have been a severe blow to the industry. In the face of this uncertain future, new avenues such as diversification of fishing, tourism and small businesses are being explored.

Many Acadians in Nova Scotia work in goods-producing industries, especially in fishing, but also in processing industries.

Francophones are quite well represented in the public service sector, where their proportion of the labour force in public administration, education, health and social services exceeds 35%. There are fewer in other tertiary sectors. More than 13% work in retail and wholesale trades. However, the province's francophones have barely begun to be involved in the areas of finance and business services, etc.

Education

In terms of French-language institutions, the Université Sainte-Anne in Pointe-de-l'Église is the only French-language university in Nova Scotia. There is also the Collège de l'Acadie (network of francophone community colleges), a Department of Education French curriculum service, a provincial Acadian school board and an Education Act that complies with the Charter.

Voluntary Sector

The Fédération acadienne de la Nouvelle-Écosse (FANE) is the main organization representing Acadian community interests and a member of the Société nationale de l'Acadie. Other francophone organizations include the Association des juristes d'expression française de Nouvelle Écosse.

Profile of Respondents

Of the 35 members of the Association des juristes d'expression française de la Nouvelle-Écosse, 16 responded to the survey, either on line or by telephone. There were 14 lawyers in private practice, making up 88% of the survey respondents. Those 14 respondents represent about 70% of the 20 or so lawyers in private practice who belong to the Association. The analysis of the data is based on the responses from those 14 lawyers.

Of those 14 respondents, 11 (79%) have French as their mother tongue, although 12 (88%) report that they work in English only, and only two (14%) say that they work in both official languages. However, quite a few of those who say that they work only in English have francophone clients and so actually appear to have a bilingual practice, at least in part.

On the question of legal studies, 43% of the lawyers studied law at the Université de Moncton and 57% studied law at other institutions. Of those 14 respondents, six say that they practice law mainly in Halifax, four in Cape Breton and two in the southwest, while two did not give a response.

Supply of and Demand for Services in French

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

The responses from lawyers indicate that the demand for judicial and legal services in French is quite low at present in Nova Scotia. Despite the fact that the lawyers seem to represent a fairly substantial segment of the private practice of law in French in the province, an average of only 31% of their clients are francophone. As well, only 14% of the francophone clients request services in French.

Views of Other Actors in the Judicial System

That low level of demand for services in French is confirmed by the other actors. On a yearly basis, there seems to be no more than one or two dozen trials (or hearings) in French or bilingual trials (or hearings) in the entire province. This is consistent with the findings of the Special Committee, which found that between 1988 and 1992, 58 trials (or hearings) were held in French in the Nova Scotia Provincial Court: about 10 a year.

Perception of Impact of Proceeding in French

The assessment of the perception of the impact of proceeding in French shows that there is a fairly serious problem in terms of the apprehension that the decision of a person appearing before the costs to request judicial and legal services in French will occasion additional costs and delays. Table 8.1 shows the responses of the lawyers in respect of various factors that may have an impact on the decision as to whether to proceed in French.

On the other hand, very few lawyers, two out of 13, believe that the decision to proceed in French will have an influence on the judgment or even on the possibility of appealing. As well, only a third of them, four out of 12, perceive a fear on the part of their clients of negative impacts on their case as explaining the choice not to proceed in French.

On the question of the various factors that may have an impact on the decision as to whether to proceed in French, there is no significant difference between the five lawyers who studied in French at the Université de Moncton and the eight lawyers who studied in English. On the other hand, on the question of their perception of a fear on the part of their clients of negative impacts on their cases as explaining their choice not to proceed in French, the lawyers in the two groups responded differently. Only 13% (one out of eight) of the lawyers who studied in English perceive such a fear on the part of their clients, while 60% (three out of five) of the lawyers who studied at the Université de Moncton perceive such fears on the part of their clients. As well, although 60% (three out of five) of the lawyers who studied at the Université de Moncton believe that additional time and costs have an impact on the decision as to whether to proceed in French, only 25% of the lawyers who studied in English believe that delays have an impact on that decision, and 38% believe that additional costs have an impact.

Awareness and Application of Section 530 of the Criminal Code

As Table 8.2 shows, the lawyers report that they are very familiar with section 530 of the Criminal Code. However, only 33% (two out of six) of them believe that judges inform accused persons who are not represented by counsel of their right to make a choice as to language. In addition, the same proportion, only 33%, say that the forms are available in French.

Active Offer of Service

The lawyers who responded to the survey say that they are not aware of an active offer policy: 83% (five out of six) say that there is no policy as such, and 17% (one out of six) doesn't know. This is also the observation of most of the other participants. The question of active offer, and of services in French in general, does not seem to be a priority for the Nova Scotia judicial system.

Barriers to Access to Justice in French

Overall Level of Satisfaction with Judicial and Legal Services in French

Overall, we find a significant number of barriers to access to justice in French in Nova Scotia, in a number of respects. A number of survey participants, including both lawyers in private practice and other actors in the system, feel that the judicial system places francophone individuals at a disadvantage. Where francophones who are members of minority communities do not have enough demographic and political weight, they have even more incentive and are even more prepared to make do with judicial and legal services in English, as we observed earlier.

As Table 8.3 shows, the proportions of lawyers who say that they are dissatisfied with judicial and legal services in French are as follows: 67% (four out of six) in criminal law, 100% (three out of three) in bankruptcy law, and 75% (six out of eight) in the law of divorce and support.

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

A significant number of lawyers report serious gaps in terms of access to services in French in criminal law matters. Table 8.4 summarizes the assessments of the accessibility of services and documents in French offered by lawyers practising criminal law. One fact worth noting is that a majority of the lawyers who responded to the survey are not convinced that judges inform accused persons who are not represented by counsel of their rights under section 530 of the Criminal Code.

Views of Other Actors in the Judicial System

Interviews with other actors in the judicial system confirm the assessment given by the lawyers in respect of judges and court personnel, and the question of active offer of service in French.

There is no language-training program in Nova Scotia to enable judges who wish to acquire the ability to perform their functions in both official languages to do so. Courses in legal French are offered only by the Office of the Commissioner for Federal Judicial Affairs to judges of the minority language group, for one week each year. Private courses in legal French are also offered for judges who wish to learn French or upgrade their language proficiency. The OCJFA pays the costs.

As noted earlier, lawyers in the southwestern part of the province generally report that it is easier for them to obtain services in French from judicial system personnel.

Overall, we find that the language of the courts and judicial and legal services in the province is English. However, the courts hear criminal cases in French if the accused so requests. Cases are heard with the assistance of interpreters, and information and indictments are filed mainly in English. The statutes of the province are not published in both official languages. The Rules of Procedure are not translated into French. There are no translation services attached to the judicial system. Translation is provided by translators from the private sector, and the quality varies. There is very little legal documentation in French available to the judicial system of the province. A very small number of police officers are able to speak French.

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

In the area of bankruptcy law, few respondents report that it is easy to obtain services in French from judicial personnel, as may be seen in Table 8.5. As well, the lawyers who work in this field have difficulty accessing pleadings, case law and legal literature in French. In response to the question concerning their overall assessment of access to justice in French in bankruptcy cases, all of the respondents (three out of three) said that they were dissatisfied. Those respondents usually practise in the region of the capital city, Halifax.

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

In the field of the law of divorce and support, we find that there is a great deal of dissatisfaction. A large majority of respondents (six out of eight, or 75%) say that they are dissatisfied with services in this field. The dissatisfaction seems to be greater in northern Nova Scotia (Cape Breton). On the question of access to services and documentation in French in this area of the law, 57% and 88% of respondents report that access is not easy. Only one respondent out of eight (13%) reports that it is easy to obtain services in French from the judges and officers of the Provincial Court. No respondents say that they are able to access pleadings in French. Table 8.6 clearly shows the gaps that exist in this respect, and the barriers faced by francophones appearing in the courts.

Possible Solutions

The possible solutions presented below are taken from the questionnaires and from the interviews with various actors in the legal system, and from the brief submitted by the AJEFNÉ to the Government of Nova Scotia recommending that a French Language Services Act be enacted. They are divided according to whether they relate to the federal or provincial governments or other bodies.

Federal

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

  • Appointing more bilingual judges.
  • Adding a new form in criminal procedure that would be mandatory and would inform accused individuals of their language rights and enable them to specify the official language they prefer. The form would have to be completed by the point at which the accused exercises his or her choice for the language of trial under section 530 of the Criminal Code. While waiting for the new form or written notice to be developed, judges should inform accused persons of their language rights whether or not they are represented by counsel.
  • Disclosing the documentary evidence presented at a criminal trial to the accused or his or her lawyer in the official language chosen by the accused.
  • Implementing a French language training program for judges and judicial personnel, and a training program for legal translators.
  • Having the government add an amendment to section 530 of the Criminal Code to provide that where an accused person requests a trial in his or her own language, the charges and particulars are provided to the person forthwith in the official language that he or she has chosen.
  • Giving serious consideration to the language proficiency of the candidates when appointing judges to the superior courts.
  • Having the federal government adopt measures to allow for the use of French in judicial proceedings involving federal statutes (for example, divorce and bankruptcy).
  • Having the federal government make arrangements to ensure that in proceedings involving francophones the prosecutors they assign are bilingual.
  • Undertaking a public awareness campaign to ensure that people know about language rights.
  • Creating an itinerant provincial court.
  • Taking steps to ensure that legal forms and documentation in cases involving federal statutes are available in French throughout the province.
  • Having the federal government grant funding to assist Nova Scotia in improving judicial and legal services in French.
  • Creating scholarships for students who want to study law in French.
  • Reforming the procedures within the Royal Canadian Mounted Police relating to bilingual designation.
  • Increasing the funding for the AJEF.

Provincial

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

  • Having the Government of Nova Scotia enact a French Language Services Act. The Act should contain measures to set the parameters for using French in the provincial judicial system in the bilingual areas (Halifax-Dartmouth, Clare, Argyle, Richmond, Cheticamp, Sydney and Pomquet).
  • Recognizing the right to use French in cases before the Provincial Court and the superior courts of the province, including the Small Claims Court, Family Court, Probate Court and Residential Tenancies Board.
  • Rendering the decisions of the courts in the language in which the proceedings were held.
  • Making translation services available when a party requests those services.
  • Having the province make the necessary regulations to implement Part XVII of the Criminal Code.
  • Having the province amend subsection 23(2) of the Judicature Act to provide that francophone or bilingual judges of the Supreme Court may, where necessary, sit on the Court of Appeal to hear appeals in French.
  • Having the Government of Nova Scotia implement measures to offer language training to court officers, and in particular to provincial prosecutors, to facilitate access to justice in both official languages. Agreements for that purpose could be entered into by the federal government and the governments of New Brunswick and Quebec.
  • Designating certain court officer and provincial prosecutor positions bilingual.
  • Providing for translation of the proceedings of the Court of Appeal and, where necessary, in courtrooms in the areas of Richmond, Clare, Argyle, Cheticamp, Halifax-Dartmouth, Sydney and Pomquet, where there are high proportions of francophones.
  • Amending the Judicature Act to allow for the use of both official languages in the courts of Nova Scotia and amending the rules of civil procedure to allow for the use of both languages in pleadings, testimony and oral and written argument.
  • Increasing the numbers of bilingual personnel at all levels of the judicial process.

Tables

Table 8.1: Perception of the Impacts of Proceeding in French
  Yes No Do not know
Delays in services 5 (38%) 4 (31%) 4 (31%)
Additional costs 6 (46%) 4 (31%) 3 (23%)
Unfavourable judgment 2 (15%) 6 (46%) 5 (38%)
Possible inscription in appeal 3 (23%) 5 (39%) 5 (39%)
Perceived fear, among the clients, of a negative impact on their case 4 (31%) 8 (62%) 1 (8%)
Table 8.2: Awareness and Application of Section 530 of the Criminal Code
  Yes No Do not know
Awareness of section 530 6 (100%) 0 (0%) 0 (0%)
Awareness of the stages in the process where there is a possibility of making decisions on language 5 (83%) 0 (0%) 1 (17%)
Lawyers who advise their clients each time the opportunity of making a linguistic choice arises 4 (80%) 1 (20%) 0 (0%)
Judges who advise the accused of their linguistic options each time the opportunity arises 2 (33%) 3 (50%) 1 (17%)
Availability of relevant forms in French 2 (33%) 3 (50%) 1 (17%)
Table 8.3: 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: 2 (33%) 4 (67%)
Generally speaking, regarding the availability of judicial and legal services in French in bankruptcy law, you are: 0 (0%) 3 (100%)
Generally speaking, regarding the availability of judicial and legal services in French in the law of divorce and support, you are: 2 (25%) 6 (75%)
Table 8.4: Availability of French Services and Documents According to Criminal Lawyers
  Yes No Do not know
From judges 2 (33%) 4 (67%) 0 (0%)
From officers of the Provincial Court 2 (33%) 4 (67%) 0 (0%)
From officers of the Superior Court 2 (33%) 4 (67%) 0 (0%)
From administrative officials at the Court House 2 (33%) 4 (67%) 0 (0%)
From federal prosecutors or legal agents of the Attorney General of Canada 4 (67%) 1 (17%) 1 (17%)
From provincial prosecutors and their substitutes 2 (33%) 4 (67%) 0 (0%)
From interpreters 2 (33%) 3 (50%) 1 (17%)
In legal proceedings in French 0 (0%) 4 (80%) 1 (20%)
To empanel a jury whose members are capable of hearing a case in French 2 (33%) 3 (50%) 1 (17%)
Of legislation in French 3 (50%) 2 (33%) 1 (17%)
Of case law, court rulings, etc. in French 3 (50%) 2 (33%) 1 (17%)
Of jurisprudence, i.e. legal sources, in French 2 (33%) 3 (50%) 1 (17%)
Table 8.5: Availability of French Services and Documents According to Lawyers in Bankruptcy Law
  Yes No Do not know
From judges 1 (25%) 1 (25%) 2 (50%)
From officers of the Superior Court 1 (25%) 2 (50%) 1 (25%)
From administrative officials at the Court House 0 (0%) 3 (75%) 1 (25%)
From interpreters 2 (50%) 1 (25%) 1 (25%)
In legal proceedings in French 0 (0%) 4 (100%) 0 (0%)
Of case law, court rulings, etc. in French 1 (25%) 3 (75%) 0 (0%)
Of jurisprudence, i.e. legal sources, in French 1 (25%) 2 (50%) 1 (25%)
Table 8.6: Availability of French Services and Documents According to Lawyers in the Law of Divorce and Support
  Yes No Do not know
From judges 1 (13%) 7 (88%) 0 (0%)
From officers of the Provincial Court 1 (13%) 7 (88%) 0 (0%)
From officers of the Superior Court 2 (25%) 6 (75%) 0 (0%)
From administrative officials at the Court House 2 (25%) 6 (75%) 0 (0%)
From interpreters 3 (38%) 5 (63%) 0 (0%)
In legal proceedings in French 0 (0%) 6 (86%) 1 (14%)
Of legislation in French 3 (43%) 4 (57%) 0 (0%)
Of jurisprudence, i.e. legal sources, in French 2 (25%) 5 (63%) 1 (13%)
Of case law, court rulings, etc. in French 2 (25%) 6 (75%) 0 (0%)

  • [49] R.S.N.S. 1989, c. 240
  • [50] http://www.gov.ns.ca/just/courts.htm
  • [51] Probate Act. 2000, c. 31
  • [52] R.S.N.S. 1989, c. 238
  • [53] R.S.N.S. 1989, c. 159
  • [54] Supra, note 2
  • [55] R.S.N.S. 1989, c. 310
  • [56] R.S.N.S. 1989, c. 430
  • [57] Final Report of the Special Committee of the Canadian Bar Association - Nova-Scotia Branch, Canadian Bar Association Resolution 2-03-A Pleading in French before Nova Scotia Courts. Presented to Cecilia I. Johnstone, Q.C., President of the Canadian Bar Association, Ottawa, Ontario
  • [58][1999] N.S.J. No 477
  • [59] Francophone Community Profile of Nova Scotia, Fédération des communautés francophones et acadienne (FCFA) du Canada, May 2000
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