Environmental Scan: Access to Justice in Both Official Languages

Chapter 9: Nunavut

Structure of the Judicial System

Judicature

Superior Courts

Under the Act to amend the Nunavut Act with respect to the Nunavut Court of Justice and to amend other Acts in consequence,[60] all the powers that the courts of the Northwest Territories, with the exception of the Court of Appeal of the Northwest Territories, are now to be exercised by the Nunavut Court of Justice.[61]

Under the Judicature Act (Nunavut),[62] the Court of Appeal is the court of appeal for Nunavut and is a superior court of record. That Court is composed of appeal justices of appeal that are appointed by the Governor in Council from among the judges of any court of appeal of any province or territory, the judges of the Nunavut Court of Justice and the judges of the Supreme Court of the Northwest Territories and the Supreme Court of the Yukon Territory. The Court may sit in Nunavut or in any other territory or province.

The Judicature Act (Nunavut) establishes a single unified court (superior and territorial) court for the Territory.[63]

The Judicature Act (Nunavut) establishes a superior court of record called the Nunavut Court of Justice to which are conveyed (for Nunavut) the powers formerly exercised, before April 1, 1999, by the NWT Supreme Court and the Territorial Court.

The Nunavut Court of Justice is designated as the youth court for the purposes of the Young Offenders Act (Nunavut)[64] and the Young Offenders Act (Canada),[65] and is a court of record.

The Nunavut Court of Justice is an itinerant court that travels throughout Nunavut, except in communities where there are no RCMP detachments.[66]

Constitutional Obligations

The first version of section 110 of the North-West Territories Act was enacted in 1877.[67] Under that section, every person could use French or English in the courts. The version of section 110 as it was subsequently known was enacted in 1886. [68] In addition to the fact that it reiterated the free choice as to language in the courts, it allowed the Territorial Assembly to "regulate its proceedings, and the manner of recording and publishing the same".

Territorial Legislation

Section 19 of the Northwest Territories Official Languages Act provides that either English or French may be used by any person in, or in any pleading in or process issuing from, any court established by the Territorial Legislature.

Under section 29 of the Nunavut Act, section 110 of the North-West Territories Act (1886), which provides that French and English may be used in the courts, and section 43.1 of Part II.1 of the Northwest Territories Act (1985), which provides that French and English are the official languages, are incorporated into the law of Nunavut. The Inuktitut language is the language in ordinary use in Nunavut.

Profile of the Francophone Community[69]

Demographics

The great majority of the population of Nunavut is neither anglophone nor francophone. Of the 25,085 inhabitants of the territory as constituted since April 1999, 18,055 (72%) speak an Aboriginal language, mainly Inuktitut. The proportion of the population who have English as their mother tongue is 26%, while the proportion who have French as their mother tongue is 2%. There are 425 francophone residents of the new territory, according to 1996 census data.

Geography

Francophones are present in a number of villages in Nunavut. The highest concentration by far is found in the census subdivision that includes the town of Iqaluit where there are more than 250 francophones, 60% of all francophones in the new territory live in this region.

Nowhere in Nunavut do francophones constitute a significant percentage of the population: 3% in the Baffin region and less than 1% in the two other regions that make up Nunavut. However, they make up 6% of the population of Iqaluit, the capital of the new territory and culturally closer to Quebec that any other community north of the 60th parallel.

Economy

Many francophone business people work towards economic development in Nunavut, including Odyssée Nunavut (AFN tourist agency) and Nun@franc communications (Web site creation and management company).

Education

Education is the key to the vitality of the francophone community in Nunavut. This vitality comes in part from the fact that a large percentage of francophones have a post-secondary education: 100 of them have a university education and, in addition, some 145 francophones finished college or other studies. Their contribution to francophone development in the territories is immeasurable.

Nunavut has a French mother tongue program (Nakasuk school), which goes from kindergarten to grade 8. Thirty-eight pupils are enrolled. Note that the Education Act is presently being revised by the Nunavut Legislative Assembly and this new law will grant school management privileges to francophones.

Voluntary Sector

The Association des francophones du Nunavut (AFN), founded in 1997, is the main organization speaking for the francophone community in Nunavut.

Its high-priority areas include services in French at the federal and territorial government levels, economic development, education in French, and cultural and community life. There is no association of French-speaking lawyers in Nunavut.

Profile of Respondents

Since there is no association of French-speaking lawyers in Nunavut, efforts were made to identify French-speaking lawyers or lawyers who are prepared to practise law in French. Those efforts identified two or three people who could respond to the questionnaire. However, only one person, an anglophone lawyer in private practice, agreed to participate in the survey. However, other actors in the legal system were interviewed for the study. Despite the very low number of respondents, it is still important to consider these participants' responses. In total, four people were interviewed for the study concerning judicial and legal services in French in Nunavut.

Supply of and Demand for Services in French

In view of the small number of francophones in Nunavut, the demand for judicial and legal services in French is not high. Based on the responses from our various study participants, it is estimated that there are perhaps ten trials (or hearings) a year that are bilingual or in French.

The low demand for judicial and legal services (especially trials) in French is perhaps due to a lack of information regarding the language rights of individuals appearing before the courts. In criminal law, there seems to be no policy in Nunavut for the active offer of services in both official languages. An accused has the right to be heard in French, but he or she must ask to do so.

According to the study participants, the consequence of proceeding in French would be additional costs and delays in the provision of services.

Barriers to Access to Justice in French

Overall Level of Satisfaction with Judicial and Legal Services in French

Although the statutes are written in both official languages of Canada, although the law provides for individuals to have access to justice in both of the country's official languages, and although there is a courthouse in Iqaluit, there are no judicial and legal services. All judicial and legal services are provided out of Alberta.

Because there are no judicial and legal services in Nunavut, judicial and legal services in French must also be provided out of Alberta. The judges, prosecutors, defence counsel, court clerks, translators and stenographers who make up the court that sits in Iqaluit all come from Alberta. This inevitably requires additional time and involves additional costs. Accordingly, even though these services are available in French under the agreement with Alberta, it cannot be said that judicial and legal services in French are readily accessible.

Cases or trials generally proceed using translators who work in three official languages: Inuktitut, French or English.

Cases that are to be heard in French are grouped together and heard at a sitting of the court that sits in French about twice a year for one week.

The judges have access to some documentation in French at the courthouse library. There are quite a few francophone peace officers. Legal aid is not provided in French.

The judicial and legal services in French, provided out of Alberta are sufficiently complete to meet demand. Nonetheless, it would seem that francophone individuals appearing in the courts are at a disadvantage because of their language. The fact that francophone judicial and legal services have to be borrowed from Alberta, and that additional delays occur and francophones must depend on translators who are not all equally skilled, is a disadvantage.

Possible Solutions

The low population density and small number of francophones in the territory make it difficult to find permanent solutions on site, but the following are a few possibilities.

Federal

  • Appointing a bilingual resident judge.
  • Identifying francophone lawyers.
  • Promoting the use of new technologies.
  • Using judges from other provinces who are capable of hearing trials in French.

  • [60] S.C. 1999, c. 3
  • [61] See also: http://www.nunavutcourtofjustice.ca/unifiedcourt.htm
  • [62] S.N.W.T. 1998, c. 34
  • [63] See also government internet site, Supra, note 2
  • [64] R.S.N.W.T. 1988, c. Y-1.
  • [65] R.S.C. 1985, c. Y-1
  • [66] Supra. note 2
  • [67] North-West Territories Act, S.C. 1875 chap. 49, as amended by S.C. 1877, chap. 7, s. 11
  • [68] R.S.C. 1886, c. 50
  • [69] Francophone Community Profile of Nunavut Territory, Fédération des communautés francophones et acadienne (FCFA) du Canada, February 2000
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