A Study on Legal Aid and Official Languages in Canada

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EXECUTIVE SUMMARY

Legal aid services in Canada support a greater access to the justice system by providing legal assistance to those who cannot afford the cost of legal counsel. Just as poverty constitutes a barrier to justice, language may also represent an obstacle to equal access to the justice system. Consequently, and in accordance with the principles of natural justice, there is an obligation to provide interpreters to any party or witness, in any legal proceedings, who does not understand or speak the language in which the proceedings are held. Furthermore, the presence of two official languages in Canada creates additional rights and obligations that go beyond the requirements of natural justice. A number of constitutional and legislative provisions, such as the right to access criminal courts in either official language (section 530 of the Criminal Code), have addressed the equality of English and French throughout Canada and the Canadian justice system. The provision of bilingual services by legal aid plans may therefore represent an important bridge between low-income clients and their equal access to justice. The Department of Justice Canada initiated this research project in order to:

• identify the policies and practices in effect within provincial legal aid plans to ensure access to services in the official language of choice;
• identify any difficulties in accessing legal aid services in the official language of choice; and
• determine, if necessary, the increased levels of service required to meet adequate standards of service as well as the cost of the increased level of service.

Methodology

While the focus of the study is primarily on the provision of legal aid services in the area of criminal law, additional areas of law have also been included, such as family and other civil matters. The scope of this study is limited to legal aid services in the ten provinces and does not include the three territories, which are the object of a separate study on legal aid. The methodology adopted to examine these research issues consists of four main tasks:

• Literature review: a review of documentation describing the legal aid services offered in each province of Canada, documents describing linguistic profiles within each province, Legal Aid Acts, provincial linguistic legislation, the Canadian Charter of Rights and Freedoms, the Criminal Code, relevant case law, and literature on legal aid services and linguistic rights in Canada.
• Site visits: visits to six provinces (Nova Scotia, New Brunswick, Québec, Ontario, Manitoba, and Alberta) where in-person and telephone interviews were conducted with various key informants including legal aid directors and staff, private lawyers, Crown, judiciary, community organizations, court services, and child and family services.
• Key informant interviews: telephone interviews with key informants in those provinces not visited (Newfoundland and Labrador, Prince Edward Island, Saskatchewan, and British Columbia).
• Client survey: a random telephone survey within each province visited (Nova Scotia, New Brunswick, Québec, Ontario, Manitoba, and Alberta), targeting those areas with a significant concentration of people who speak the official language of the minority.^[1]

Linguistic dimensions of legal aid

Parliament has demonstrated a commitment to supporting official language minorities and promoting the equal status of English and French throughout Canada. Various constitutional and legislative provisions, such as those contained in the Canadian Charter of Rights and Freedoms and the Criminal Code, touch upon the issue of official languages as they relate to matters that fall under federal jurisdiction. In addition, some provinces have established policies or legislation governing the provision of government services in both official languages.

The Charter establishes English and French as the official languages of Canada and states that either official language may be used before any court established by Parliament. Furthermore, any individual unable to understand or speak the language in which court proceedings are held has the right to the services of an interpreter.

Whereas the Charter addresses the issue of language generally, the Criminal Code deals specifically with the issue of language in the context of criminal proceedings, creating an absolute right of an accused to use either official language in designated courts. The Supreme Court of Canada has stated that section 530 of the Criminal Codeinvokes the need for "institutional bilingualism," where courts that deal with criminal matters must maintain the capacity for equal use of English and French. In addition, the Supreme Court has specified that the purpose of such a provision is to recognize and be responsive to an individual's linguistic and cultural identity, thereby making a person's ability to speak and understand the language of the majority irrelevant.

Since legal aid plans fall under provincial jurisdiction, such federal provisions do not create a strict obligation for legal aid plans to offer services in both official languages. However, this provision and, just as importantly, the interpretation given to it by the Supreme Court of Canada create external pressures on legal aid plans to provide legal aid services in the two official languages.

There are several service delivery principles to consider in the development of policies and practices relating to official languages. Extensive research in the field has led to the general acceptance of the following principles as constituting good practice in the field of official languages service delivery:

• Informing the public that services are available in both official languages, through an active offer of services.
• Ensuring that quality services are available in both official languages throughout the various service delivery methods (e.g., Internet, information line, written material).
• Taking into account issues of recruitment of staff, training, and professional development opportunities for employees in the consideration of the overall capacity of an organization to offer services in the two official languages.

Legal aid plans offer a wide range of legal services - information services, Brydges representation, duty counsel services, and full representation in court - each unique in its purpose, organization, and delivery structure. While the provision of legal aid services in the official language of the minority must incorporate the above principles, service delivery must also be adapted to the particular characteristics of each type of assistance provided by legal aid.

• Brydges representation: According to the Supreme Court of Canada decision in R. v. Brydges, legal representation must be available immediately to any person arrested or detained, 24 hours a day, seven days a week. Provinces have adopted a number of delivery structures to ensure conformance with the requirements of this ruling.

  The decisions that must be made by a person at this early stage in the process can have significant impacts on a number of issues related to the case, and, in this context, the ability of an accused to speak in his or her own official language is conducive to good decision-making. However, the challenges to providing this service in both official languages are significant. The immediacy required by this type of representation makes it difficult to respond to such a request on an ad hoc basis.

• Duty counsel services: Duty counsel services are generally available to accused persons upon their first appearance in court. The provinces impose their own conditions on the use of this service; some jurisdictions offer duty counsel only to those in custody, and others require that the applicant meet the financial eligibility criteria. In any case, duty counsel services are perceived by many as being one of the most important services available through legal aid since the first appearance can indeed have lasting effects on a person's right to life, liberty, and security.

  Legal counsel assist the accused with obtaining pre-trial release and in deciding on an appropriate plea. The choice of plea requires extensive legal expertise as it largely depends on the existence of a valid defence. The decision must be an informed one because entering the wrong plea can have damaging consequences. The challenge, in terms of duty counsel services, is that these lawyers deal with an exceptionally high volume of cases and are required to work within restricted time frames. The ability of the lawyer to communicate easily and efficiently with the accused is, therefore, crucial. As with Brydges representation, the immediate nature of the service poses specific challenges in terms of provision in both official languages.

• Trial representation: A person without a lawyer may apply to legal aid for legal representation at trial. This service is provided through a staff model or a judicare model, depending on the jurisdiction. The value of trial representation, as with other services provided by legal aid, is in the capacity of the lawyer to interpret the law for the accused, represent the interests of the accused, and present the accused with all available options. A lawyer's capacity to speak and understand the official language with which the client is most comfortable will improve the effectiveness of representation.

  Unlike Brydges and duty counsel representation, trial representation in the official language of the minority is more easily organized on an ad hoc basis. Nevertheless, there are some important challenges that arise, such as the availability of lawyers who speak the language of the minority, who practise criminal law and are willing to work for or accept legal aid certificates; and who have a lawyer's knowledge of the technical and specialized terminology required to conduct a trial in the official language of the minority.

The complex nature of the law and the adversarial system in which the Canadian justice system operates requires effective communication between a lawyer and client at all stages of the process. An individual must be clear on procedures, processes, and the law itself. The ability of a person to instruct counsel rests on his or her comprehension of the issues at hand, thereby making effective communication an essential component of all interactions between legal professionals and clients.

Findings from the jurisdictions

Minority official language groups represent a small percentage of the overall population in most Canadian provinces - from 0.5 percent in Newfoundland and Labrador to 9.4 percent in Quebec. New Brunswick stands somewhat apart, as the Acadian and francophone community constitutes a third of its population, and as the two languages and the two linguistic communities have equal constitutional status in that province. In addition, 1996 Census data indicate that the number of people who have a minority official language as a mother tongue is generally decreasing - with the exceptions of Prince Edward Island and Ontario, where the numbers have remained relatively stable throughout the years, and New Brunswick and British Columbia, where the numbers are increasing. Consequently, access to legal aid services in the official language of the minority varies across jurisdictions.

Constitutional and legislative provisions that are in place within each province also have an impact on the availability of legal aid services in the official language of the minority. While most legal aid plans are not required to provide their services in both official languages, the policy environment in which they operate may create an incentive to provide services in both official languages:

• The use of both official languages in all courts is a constitutional right in New Brunswick, Québec, and Manitoba, and a legislative right in Ontario, Saskatchewan, and Alberta.
• Federal legislation requires that an accused have access to a criminal trial in either official language.
• Legislation in Prince Edward Island, New Brunswick, and Ontario requires the provision of legal aid services in both official languages, and Manitoba has a government policy regarding the provision of legal aid services in the official language of the minority

In addition to differing constitutional and legislative obligations, the provinces have adopted different structures for the delivery of legal aid services: New Brunswick and Ontario have adopted a judicare model; Newfoundland and Labrador, Prince Edward Island, Nova Scotia,

Manitoba, and Saskatchewan have adopted a primarily staff model; and Québec, Alberta, and British Columbia operate on a mixed model (both staff and judicare). Depending on the service delivery structure, legal aid plans have varying degrees of control over their capacity to offer their services in both official languages.

In the absence of formal policies or legislation regarding the provision of services in the official language of the minority, informal policies are in place within most legal aid systems. Generally, legal aid will attempt to provide services in the official language of choice upon request by a client. The ease with which a legal aid system can accommodate such a request depends in part on the type of service requested and on the availability of staff or private bar lawyers who speak the official language required.

• Most legal aid plans will attempt to provide full representation in the official language of the minority on an ad hoc basis. In most cases, legal aid will issue a certificate to a bilingual lawyer in private practice.
• Legal aid plans also attempt to provide some duty counsel services and Brydges representation in the official language of the minority; however, these two areas pose particular challenges because of the immediacy of the service required. With the exception of New Brunswick, Québec, and Ontario, these services are essentially non-existent in the official language of the minority.

Overall, New Brunswick, Québec, and Ontario are the only provinces with a significant capacity to offer legal aid services in both official languages. Other provinces have a more limited capacity, yet many feel that it is sufficient due to the low demand for services in the official language of the minority.

Key informants point to some important considerations when organizing and planning for the provision of legal aid services in the official language of the minority. These include:

• A lawyer's capacity to communicate in the official language of the minority does not translate into the capacity to conduct a trial in that language. There is a significant difference between the skills required for each; many lawyers with some bilingual capacity may not be willing to represent a client formally in the official language of the minority.
• In some provinces, particularly Saskatchewan, Alberta, and British Columbia, other languages are more prevalent than the official language of the minority. For this reason, providing legal aid services in both official languages is not considered a priority, putting the minority official language group in a status that is largely comparable to that of any other language that is not the majority language.
• Most legal aid plans expressed difficulties with the provision of services generally, regardless of the language issue. Resources are thinly spread, making it difficult to invest in the provision of services in both English and French.
• The French language has historically evolved differently in Acadian communities than in other areas across the country, thereby making it increasingly difficult to ensure that a lawyer or any Legal Aid staff member can effectively communicate with a client, despite the fact that they are speaking the same language.

Aside from these key considerations, a number of barriers may prevent the provision of legal aid services in the official language of the minority. With regard to legal aid clients, barriers occur at the active offer of services.

• There is, typically, no active offering of services in the official language of the minority, thereby reducing the demand for such services. Legal aid clients generally are not aware that they can have access to services in their official language of choice and therefore do not request them. Survey findings indicate that respondents consider it important to have a lawyer speak to them in their first language. However, nearly half of both groups (anglophones and francophones) indicate a willingness to proceed in court in the official language of the majority as long as the lawyer representing them has the capacity to communicate in their preferred official language.
• The justice system is intimidating to most individuals, and, therefore, many are not comfortable with making a request for services in the official language of the minority. In addition to a lack of active offer within legal aid plans, many key informants indicate that the justice system as a whole does not encourage the use of the official language of the minority. This represents an important barrier to consider because, as demonstrated by the survey of clients and potential clients, nearly all anglophone respondents indicate a preference for a trial in English.

In addition, there are a number of organizational barriers to the provision of legal aid services in both English and French, depending on the delivery model and the type of service being offered.

• Legal aid plans that operate on a judicare model rely on the willingness of bilinguallawyers in the private bar to accept legal aid certificates. In reality, many bilinguallawyers tend not to do legal aid work or may not work in fields such as criminal lawwhere the need for bilingual services may be particularly significant. Furthermore, manybilingual lawyers may be discouraged from accepting legal aid cases in the officiallanguage of the minority because of a lack of support (bilingual paralegals, secretaries,etc).
• In a staff model, legal aid plans often experience difficulties recruiting and maintaining bilingual lawyers and other staff (paralegals, secretaries, etc). These individuals often move toward more lucrative positions in the private sector or in other government departments. Consequently, many legal aid plans will issue certificates to bilingual members of the private bar when a request is made for services in the official language of the minority. The barrier then becomes locating a bilingual lawyer who is willing to accept a legal aid certificate.
• Duty counsel services are more challenging to provide in both official languages because they are high volume in nature and are generally provided in all criminal court locations (some jurisdictions offering the service in family and youth court as well). Consequently, many jurisdictions concentrate their efforts to provide these services in both languages in areas where official minority language groups are more prominent, rather than attempting to ensure the availability of bilingual services in areas where the demand is low.

• Brydges representation elicits many of the same concerns as those associated with duty counsel representation. Generally, Brydges representation is provided over the telephone and involves a rotation of available lawyers. In this respect, the willingness of bilingual lawyers to provide the service plays a crucial role in the availability of the service in the official language of the minority. The one scenario in which the delivery of Brydges services in the official language of the minority may prove easier is where the service is centralized through a toll-free number available from all across the province.

  As indicated by numerous key informants, police departments play a pivotal role in ensuring that clients requesting the service are made aware of the availability of bilingual lawyers. Police officers are often the first point of reference for individuals who require the services of legal aid, and an active offer at this stage can have significant impacts on meeting the language needs of legal aid clients.

While many factors influence the provision of legal aid services in the official language of the minority, legal aid plans are limited in their ability to address some of them. For instance, a legal aid plan may decide to actively offer its services in the official language of the minority, but may not be able to find bilingual lawyers who are willing to do legal aid work.

Key informants identified a number of strategies that can be developed to improve or expand the provision of legal aid services in the official language of the minority. These can be organized into three categories:

Strategies aimed at issues that have a direct impact on legal aid clients

• Increased availability of public information materials in the official language of the minority (publications, brochures, posters, etc) to ensure that members of official language minority groups have access to basic information on legal aid services, regardless of the capacity of provincial plans to provide services in both official languages.
• Increased understanding of the language needs of official language minorities by the key players in the criminal justice system who first encounter an accused person, and who may have a significant impact on his or her access to justice.
• Increased understanding by criminal justice professionals throughout the system (police, lawyers, Crown, judiciary, and Legal Aid staff) of the importance of services being made available in both official languages.

Strategies aimed at issues relating to the ability of legal aid plans to offer services in both official languages

• Enhanced opportunities for language training provided to lawyers who have a basic knowledge of the minority official language but who are unfamiliar with the legal terminology required to provide services in that language - both oral and written.
• Enhanced opportunities for language training provided to paralegals, legal secretaries, and others who support lawyers in their work.
• Availability of appropriate resources and tools that will enable legal aid plans and lawyers to provide services in the official language of the minority, including reference materials and publications, computer software, etc.

• Recognition of the role that various Associations des juristes d'expression française and other francophone community organizations can play in the expansion of French legal aid services outside Québec. The development of a solid working relationship with these associations could facilitate the provision of services in French, and encourage clients and potential clients to request services in their first language.

  Recognition of the role that the extensive network of anglophone organizations within Québec can play in the improvement and expansion of English legal aid services.

Strategies aimed at issues regarding the legal aid system as a whole

• Increased salaries for Legal Aid staff lawyers may facilitate the recruiting and maintaining of bilingual staff in some jurisdictions. Legal aid work, compared to other areas of law, is not financially rewarding - bilingual lawyers may benefit from higher salary ranges within provincial prosecutions (Ontario), within the private sector, or within other provincial ministries or federal departments (including federal prosecutions).
• Increased tariffs for lawyers in the private bar who accept legal aid certificates. Tariffs that are perceived as being too low may discourage lawyers, including bilingual lawyers, from doing legal aid work.

While some impediments to the provision of legal aid services in both official languages cannot be addressed through additional resources, others can, indeed, be overcome. The overall findings of the study lead to the conclusion that federal funding can be targeted in two ways:

• Toward those issues directly related to the capacity of legal aid plans to offer services in both official languages, such as language-training initiatives, publication and dissemination of materials in the two official languages, and the development of legal resources and tools in both official languages. In addition, the federal government can contribute to initiatives that are aimed at sensitizing criminal justice professionals to the needs of official language groups, as well as encouraging collaboration between community organizations and associations that work in the field of official language issues.

  Toward those issues that relate to the entire legal aid system, such as the tariff structure and the remuneration of staff lawyers. These institutional barriers can have a definite impact on the provision of services in the official language of the minority.

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[1] PRA had originally planned to conduct interviews with legal aid clients during the site visits; this was not feasible, as difficulties arose in recruiting clients for participation.

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