Environmental Scan: Access to Justice in Both Official Languages

Introduction

Background to the Study

Since the 1967 Confederation pact, Canadians have had the right to use French and English in the courts of the nation. That constitutional provision is one of the fundamental language rights and provides the underpinning for legal and constitutional protection of the linguistic duality of Canada. As a result, a number of statutory measures have been enacted by the Parliament of Canada and the provincial legislatures to protect language rights.

The legal framework for the delivery of judicial and legal services in both official languages is most highly developed in Manitoba, New Brunswick and Quebec. Other provinces have enacted legislation or developed policies dealing with legal services offered in the minority official languages.

Studies done at the federal and provincial levels show, however, that there are still gaps in terms of the availability of judicial and legal services in the minority official languages. In addition, the linguistic and demographic context found in the different provinces and territories varies, and the result is that special challenges will sometimes arise.

In 1995, The Commissioner of Official Languages published a report entitled "The Equitable Use of English and French Before the Courts in Canada". That study presented a description of judicial and legal services in each province and territory, and made recommendations for improving those services. Among other things, the Commissioner pointed out that apart from the legislative recognition of the right to access the justice system in both official languages, it is important to recognize the role played by the contributions of judges, lawyers and all judicial personnel in the implementation of those rights.

A number of provinces have done their own studies or evaluations in this area. In Manitoba, the Chartier Report examined the delivery of all services in French in the province, and recommended that a bilingual court be established. In Ontario, Professor Marc Cousineau prepared a similar study for the provincial Attorney General. A study by the Saskatchewan AJEF recommends that a bilingual itinerant provincial court be established. Other studies have been done in New Brunswick and Nova Scotia.

In 1999, in Beaulac, the Supreme Court of Canada established a new framework for the recognition of language rights in the judicial system. That judgment held that the federal and provincial governments have an obligation to establish institutional bilingualism in the courts and to ensure that individuals and minority official language communities have equal access to services of equal quality.

The Department of Justice of Canada now wishes to examine this question in greater detail, by identifying barriers, documenting difficulties and exploring concrete solutions for improving access to justice in the minority official languages.

Terms of Reference

PGF/GTA Research was selected by the Department of Justice of Canada to do a national study entitled "Environmental Scan: Access to Justice in Both Official Languages". The aim of the study was to get a picture of access to judicial and legal services in the minority official language[1] and to identify the specific needs of the provinces and territories. The purpose of doing this was to facilitate the adoption of appropriate measures in areas under federal jurisdiction.

Objectives

The objectives of the study are as follows:

  • To evaluate the extent of the judicial and legal services available in the minority official language;
  • To determine the main issues relating to access to justice in the minority official language;
  • To collect qualitative and quantitative data relating to the supply of and demand for judicial and legal services in the minority official language;
  • To identify practical solutions that may be applied in order to improved access to justice in the minority official language;
  • To identify exemplary and innovative practices that contribute to improving access to justice in the minority official language.

More specifically, the following information will be presented:

  • A description of the existing structure of the judicial system in each province and territory of the country, with special emphasis on the elements of the judicial system that might have an impact on the delivery of services in the minority official language;
  • A detailed description of the procedures that are in place for offering judicial and legal services in the minority official language;
  • An identification and description of the principal barriers restricting access to judicial and legal services in the minority official language;
  • An identification of possible solutions that could be applied to facilitate the delivery of judicial and legal services in the minority official language;
  • An identification of exemplary and innovative practices that might facilitate the delivery of judicial and legal services in the minority official language.

Methodology

In order to achieve these objectives, the research team adopted the following method.

Literature and Document Review

Based on a review of the relevant literature and documents, we decided to identify and analyse the theoretical and applied research relating to access to justice in the minority official language. A detailed report on that part of the research has been submitted separately to the Department of Justice of Canada.

The first chapter of this report, entitled "History of Language Rights in Canada", provides a summary of the literature review done as part of this study.

Data Collection

The research team developed a number of instruments for data collection - surveys, questionnaires, interview guides, and focus groups - to ensure that the information obtained various categories of respondents is as precise as possible. Those instruments are described in appendices 1 to 6 to this report.

Type of Instrument Category of Respondents Number of Respondents
Surveys Legal professionals in Quebec and outside Quebec 266
Interview protocol Judges in Quebec and outside Quebec 14
Interview protocol Representatives of the provinces 7
Questionnaire Federal and provincial Prosecutors 13
Interview protocol Court officers 37
Interview protocol AJEF presidents 7
Focus groups Lawyers in private practice in Quebec and outside Quebec 14
Total 358

The preceding table shows that 358 people were involved in data collection and provided information on which the analysis in this report is based.

Surveys of Members of the Legal Profession and Lawyers in Private Practice in Quebec and outside Quebec

Two surveys, containing a majority of closed questions and a few open questions, were prepared: one in French for francophone legal professionals outside Quebec and the other in English for lawyers in Quebec. The surveys related to the supply of and demand for judicial and legal services offered in the minority official language, the barriers encountered by people who wish to use those services, and avenues that might be explored in order to improve the services offered.

About 900 legal professionals and lawyers practising law in French in the 12 jurisdictions outside Quebec (nine provinces and three territories), and about 450 lawyers practising law in English in Quebec, were contacted electronically or by telephone and invited to respond to the survey. In seven provinces - Nova Scotia, New Brunswick, Ontario, Manitoba, Saskatchewan, Alberta and British Columbia - the legal professionals contacted were members of the provincial AJEF.

In the provinces and territories where there is no AJEF (Newfoundland and Labrador, Prince Edward Island, Yukon, Northwest Territories and Nunavut), lawyers in private practice were identified through information provided by resource people at the Department of Justice and outside consultants. For Quebec, the Quebec Community Groups Network assisted us in identifying lawyers, from a list of the members of the Barreau du Québec. That list had been drawn up specifically for the study, based on the first language of the members on the Tableau of the Ordre du Barreau du Québec.

Because the response rate for the electronic survey was generally low in all jurisdictions, we supplemented the data collection done by survey with telephone interviews in all provinces with the exception of New Brunswick.

The overall response rate to the survey was 24% for jurisdictions outside Quebec and 12% for Quebec.

Consultations with Other Actors in the Justice System 

In addition to lawyers in private practice, representatives of the provincial ministries, judges, prosecutors, court officers and AJEF representatives were invited to respond by telephone interview or questionnaire. Those data collection instruments dealt with the supply of and demand for judicial and legal services in the minority official language, barriers to access to the justice system in the minority official language, possible solutions and initiatives that could improve the situation in respect of access to justice in both official languages.

Because the number of respondents per category was limited in each province and territory, we did not identify respondents by category, in order to preserve their anonymity and the confidentiality of their responses.

We organized two focus groups comprised of legal professionals working in various jurisdictions. That approach enabled us to explore certain key issues and questions in greater depth. Two groups were involved: 11 legal professionals who practise in French in provinces that are majority English-speaking, who discussed the delivery of judicial and legal services in French, and four legal professionals who practise in English in Quebec, who discussed the delivery of judicial and legal services in English in that province.

Final Report

The final report sets out the analysis of the information collected using the methods described here. It is broken down by jurisdiction, and presents a profile of each of the ten provinces and three territories. For each of those jurisdictions, we follow the same analytical format: a description of the structure of the judicial system, a description of the francophone community, a profile of the survey respondents, an overview of the supply of and demand for services in the minority official language, a description of the barriers to access to justice in the minority official language, and the possible solutions proposed.

The quantitative data that we collected using the survey are supported by, or qualified or questioned having regard to, the qualitative data collected through interviews, questionnaires and focus groups. Although the analytical framework is uniform, the scope of the analysis in certain provinces, or in respect of certain items, may vary, particularly as a result of the size of the sample and the quality of the information collected.

We identified four variables as "structuring variables", that is, variables that might have an influence on the question being studied, and from which broad trends may be identified (judicial district, first language, language of work, university attended). However, those four variables are not all of the same relevance, even where numbers were sufficient to draw valid conclusions in those respects. We therefore made use of those variables, as structuring factors, only where the number of respondents permitted and a relatively important deviation appeared to exist.

The report also includes a national summary identifying connections among the various factual situations that exist in Canada, including overall satisfaction with judicial and legal services in the minority language, supply of and demand for those services, the principal barriers to access, possible solutions and exemplary innovative practices.


  • [1] The expression "minority official language" refers to English in Quebec and French in the other provinces and territories.
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