Environmental Scan: Access to Justice in Both Official Languages
Chapter 11: Quebec
Structure of the Judicial System
Judicature
Superior Courts
The Quebec Courts of Justice Act[80] establishes the Court of Appeal, which sits in Montreal and Quebec City, and the Superior Court, which sits in various municipalities in the province. The Superior Court has general jurisdiction in criminal and civil matters.
Provincial Courts
The Courts of Justice Act establishes the Court of Quebec, to which is essentially conveyed the criminal and penal jurisdiction of the province and jurisdiction in certain civil matters. The Court of Quebec consists of three divisions:
- The Civil Division, which has jurisdiction to hear cases where the amount in issue is less than $30,000. It also has exclusive jurisdiction to hear appeals from certain administrative tribunals, including the Administrative Tribunal of Quebec.[81] The Small Claims Section hears cases having a value of less than $3,000, and those judgments are not subject to appeal.[82]
- The Criminal and Penal Division
- The Youth Division, which has jurisdiction in youth protection and young offender cases (the Youth Protection Act[83] and the Young Offenders Act (Canada)[84]).
The Act respecting Municipal Courts[85] establishes the Municipal Courts, which are created at the discretion of municipalities and have jurisdiction in municipal civil matters (under $30,000) and municipal penal matters, as well as jurisdiction in respect of certain summary conviction criminal offences. The Government of Quebec appoints the judges for each of these courts. However, the Municipal court of Laval is established under that city's charter.[86] In addition, the Municipal Courts of Montreal and Quebec City are established under the recent municipal merger legislation,[87] which places them under the Act respecting Municipal Courts.
As well, the Administrative Justice Act[88] establishes the Administrative Tribunal of Quebec (ATQ), which has jurisdiction to review certain administrative decisions of the Government of Quebec.
Constitutional Obligations
Section 133 of the Constitution Act, 1867 provides that English and French may be used "in any Pleading or Process in or issuing from any Court of Canada"
.
Provincial Legislation
Under the Charter of the French Language (Bill 101), French is recognized as the only official language of Quebec. Although provincial legislation does not grant specific language rights to accused persons, those rights are sufficiently firmly rooted in judicial practice and tradition in this province. Quebec's historical capacity to administer criminal and civil justice in French and English has been made possible by the de facto bilingualism of the judiciary and the bar. As well, Quebec is subject to certain constitutional obligations in relation to the judicial system, under section 133 of the Constitution Act, 1867. However, there are those who believe that the bilingual capacity of Quebec's judicial system is greater in the judicial district of Montreal and not so extensive elsewhere in the province.[89]
Profile of the Anglophone Community
Demographics
According to 1996 census data, Quebec had a population of 7,045,080, of whom 5,700,150 (80.9%) have French as their mother tongue, 586,435 (8.3%) have English as their mother tongue and 666,923 (9.57%) have another language as their mother tongue.
Education
Section 23 of the Canadian Charter of Rights and Freedoms provides for access to instruction in English for children whose parents received their education in English in Canada or whose brothers and sisters are already attending an English-language school. There are about 340 English-language primary and secondary schools in the province. Seven public CÉGEPs offer the first level of post-secondary studies in English province-wide:
- There are three English-language CÉGEPs on the Island of Montreal: Dawson, Vanier and John Abbott.
- Champlain Regional College has three campuses: St-Lambert, Lennoxville and Quebec City.
- Heritage College in Hull serves western Quebec.
- The CÉGEPs in Gaspé and Sept-Iles each have a section specifically for anglophone students.
At the university level, Quebec has three English-language universities: McGill, Concordia and Bishop's.
Voluntary Sector
Alliance Quebec is the main organization representing the anglophone community. It was created in 1982, and consists of twelve branches in greater Montreal and the regions. Its priorities are education, youth, anglophone participation at all levels in public services, health, social services, and the constitutional future of Quebec and Canada. Anglophone communities outside Montreal are represented by six regional associations: the English-Speaking Townshippers' Association (Eastern Townships), the Committee for Anglophone Social Action (Gaspé), the Voice of English Quebec (Quebec City and region), the Outaouais Alliance (western Quebec), the Coasters' Association (lower North Shore) and the Chateauguay Valley English-Speaking People's Association (southwestern Quebec).
There are numerous other anglophone organizations, including: the Association of English-Language Publishers of Quebec, the Council of Anglophone Magdalen Islanders, the English-Speaking Catholic Council, the Quebec Association of Adult Learning, the Quebec Community Newspaper Association and The Quebec Community Groups Network.
Profile of Respondents
In Quebec, we were able to secure the assistance of the Quebec Community Groups Network to identify people who are familiar with the functioning of the judicial system and likely to be able to inform us about access to judicial and legal services in English in the province. We were thus able to arrange for the participation of two judges, a federal prosecutor and four court officers. In addition, we held a conference call with four lawyers in private practice in various regions of the province.
By consulting the lists maintained by the Barreau du Québec, we identified about 450 lawyers who practise law in English, about 350 of whom are in Montreal and 100 in other regions. An on-line questionnaire was sent to those lawyers, and telephone calls were made to those in the regions so that we could have enough respondents outside Montreal. There were 52 lawyers in private practice who responded to the survey, giving a response rate of 12% of the number of lawyers whom we invited to participate in the survey. Of the 52 responses obtained, 20 (38.5%) were submitted by lawyers practising outside Montreal and 32 (61.5%) were submitted by lawyers practising in the judicial district of Montreal.
Mother Tongue and Language of Work
A very large majority of the lawyers who practise law in English, 46 out of 52, or 88%, have English as their mother tongue. The other lawyers who practise in English have French (8%) or other languages (4%) as their mother tongues. Of the lawyers in Montreal who responded to the survey, 97% have English as their mother tongue, while 4% have a mother tongue other than English or French. No lawyers who have French as their mother tongue and practise in the judicial district of Montreal responded to the survey. Of the lawyers practising outside Montreal, 75% have English as their mother tongue, 20% have French as their mother tongue and 5% have a language other than French or English as their mother tongue.
Of the survey respondents, 87% work in both French and English, while 7% work exclusively in French and 6% work exclusively in English.
Of the lawyers who have English as their mother tongue, 85% practise in French and English, 7% practise in English and 8% practise in French.
These figures show that the context in which a large majority of these lawyers practise law is bilingual.
Language of Legal Studies
The proportion of our respondents who studied law in English was 28% (15 out of 32), 44% (23 out of 52) studied law in French, and 27% (14 out of 52) studied law in French and English.
Demand for and Supply of Services in English
Proportion of Clients who are English-Speaking and Demand for Services in English
As shown in Table 11.1, the lawyers report that, on average, 58% of their clients are English-speaking clients, and 77% of those clients, on average, request services in English.
In Montreal, the lawyers report that 62% of their clients are anglophone, and 85% of those clients request services in English. Outside Montreal, the proportion of our respondents' clients who are anglophone is 50%, and 64% of those clients request services in their own language.
Views of Other Actors in the Judicial System
The other actors in the system also report that demand for services in English is relatively high in certain judicial districts. For instance, one respondent estimates that in the Court of Quebec in the judicial district of Montreal, 35% of trials are held in English. In the judicial district of Bedford (Cowansville), 30% or 35% of the applications for hearings or trials are estimated to be in English. On the North Shore, in the judicial district of Baie Comeau (Tadoussac to Rivière Pentecôte, Baie Trinité), few hearings or trials are held in English. Our respondent estimated that two trials were held in English in five years, and added that the demand for services in Aboriginal languages was higher than the demand for services in English in that region. In the judicial district of Gaspé-Bonaventure, demand is reported to be higher in Bonaventure than in Gaspé County. There are reported to be five or six hearings or trials a year in English in the Magdalen Islands, about 10 in Gaspé and about 100 in Bonaventure.
Perception of Impact of proceeding in English
In Quebec, it seems that the proportion of lawyers who perceive a negative impact from proceeding in English is lower than the corresponding proportion in jurisdictions outside Quebec for proceeding in French.
Table 11.2 shows that additional time and costs and the possibility of appealing are not perceived as factors that have an impact on the decision as to whether or not to proceed in English, according to 79% of the respondents in the first case, 74% in the second and 76% in the third. On the other hand, a smaller proportion of the lawyers, 58%, do not see the possibility of an unfavourable judgment as a factor that has an impact on the decision as to whether to proceed in English; 39% think that it has an impact, and 2% have no opinion. This concern on the part of the lawyers, that the outcome of the proceeding might be affected by proceeding in English, is expressed by a relatively high proportion of lawyers, and should be brought to the attention of the judicial authorities.
A relatively high proportion of the lawyers, 52%, also perceive a fear of negative impact on the part of their clients if they proceed in English. This could explain certain information that we received from other categories of actors in the judicial system, who said that anglophones appearing in the courts decide to proceed in French even though, theoretically, the system has the capacity to hear cases and proceed in English. It should be noted that this comment applies to the judicial districts outside Montreal where the judicial environment is even more distinctly francophone than in Montreal.
We reproduce below a few excerpts from the responses given by the lawyers to the open questions in the survey concerning the impact they or their clients perceive of proceeding in English in Quebec.
"If you proceed in French, you are more readily understood."
"There is no difference whether you proceed in French or English. However, when I address the Court, I almost always do it in French."
"I want to be sure that the francophone judges understand my case and my argument. [...] They are not always bilingual. I have the feeling that the unwritten rule, particularly outside Montreal, is that you should not risk making argument in English, for fear that the judges will think that you are trying to take advantage of their inability to understand English. That should not be how it is, but from my point of view that is the reality. I should say that I have never made argument in English outside Montreal, even though it is my absolute right to do so."
"The judicial and legal services that the clients request relate to the lawyer-client relationship. Judicial and legal services are available in English in Montreal, generally without difficulty."
"Outside Montreal, in the province of Quebec, it is nearly impossible to proceed in English, because the other party does not speak English and because the court personnel cannot handle it properly."
"The atmosphere in court, where the environment is francophone, has a negative impact on anglophones appearing there.
The qualitative content of the survey in Quebec, in terms of the perception of the negative impact of proceeding in English, illustrates the attitudes of the minority group in a system that functions mainly in French. Those attitudes are different, however, depending on whether the respondent is in the judicial district of Montreal or elsewhere in Quebec.
Other actors in the system expressed similar views, saying that judicial and legal services are essentially francophone, and that this may sometimes discourage anglophones appearing in the courts from requesting services in English.
Awareness and Application of Section 530 of the Criminal Code
It should be noted that only a small number of lawyers responded to the questions relating to access to judicial and legal services under the Criminal Code in English. This represents the number of respondents who have direct knowledge of the question, since they practise criminal law. These figures should be interpreted very cautiously, because the number of responses (7) is relatively low.
On the question of awareness of section 530 of the Criminal Code, five out of seven lawyers (71%) say that they are aware of that section. The other actors in the judicial system, Crown counsel and court officers, also say that they are aware of the section. The same proportion of lawyers are aware of the points at which the client has an opportunity to make a language choice. The lawyers inform their clients of the opportunity to choose the language 83% of the time.
On the question of whether judges inform accused persons of their right to make a language choice, three out of five lawyers believe that they do, while one has no opinion and the other believes that they do not. According to one actor in the judicial system, a Crown counsel, judges do not inform accused persons of their right under section 530.
Section 530 of the Criminal Code requires an active offer of service, but it does not always seem to be made.
The lawyers' opinions are relatively divided on the question of the availability of bilingual forms. However, prosecutors and court officers say that all forms are available in English. Those actors also tell us that when an accused has exercised a choice as to language, the forms and portions of forms that are specific to each case are available in the language chosen by the accused. Crown counsel file pleadings in the language chosen by the accused. We would note that because the number of respondents on this point is quite small, we report these comments subject to that caution. It is impossible for us to say that the practice experienced by some respondents represents practice throughout Quebec.
Active Offer of Service in English
Apart from Quebec's constitutional obligations and the firmly rooted judicial practices and traditions relating to access to justice in English, there does not seem to be a real policy for the active offer of services in English in Quebec. This is what one of our respondents had to say, which seems to reflect the situation:
"There is no policy for the active offer of judicial and legal services in both official languages in the province. The judicial system is essentially unilingual francophone. There are no bilingual signs in the courthouses that might inform persons appearing in the courts of their language rights. Services at counters in the courthouses are practically unilingual francophone. Bilingual leaflets referring to the rights of persons appearing in the courts to have access to justice in both official languages are made available, however."
The lawyers provided us with qualitative information concerning what might be done to inform persons appearing in the courts of their language rights:
"All judges in the criminal courts have always been open to the idea of judicial and legal services in English or French. Outside Montreal, interpretation services are provided at public expense, if the judge has difficulty in understanding English."
"The burden of requesting service in English is always on the person who wants the service. Often, the person has to wait longer."
"In my region, which is nearly 100% francophone, everything happens in French. English is used only when someone indicates that he or she wants to speak English. [...] Otherwise, everything happens in French; English is the exception in my region."
Barriers to Access to Justice in English
Overall Assessment of Satisfaction with Judicial and Legal Services in English
The survey contained 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. Table 11.4 shows the questions and the answers obtained. In general, the lawyers say that they are very satisfied with judicial and legal services in English in the three areas under federal jurisdiction in question, with the rate of satisfaction ranging from 87% to 100%, depending on the area of law.
The consultation with the lawyers identified only one factor in addition to the information available in Table 11.4. The satisfaction was expressed primarily in respect of the judiciary in Quebec, who are perceived as being very open to bilingualism. The point subject to reservations was the language proficiency of the other actors in the judicial system in a number of regions. The judicial districts of Montreal and Gatineau-Hull seem to be exceptions since there are enough bilingual personnel there to offer adequate services in English.
Views of Lawyers Practising Criminal Law Regarding Accessibility of services and documents in English
Table 11.5 sets out the questions and the answers of the lawyers in relation to the ease with which services in English from judges and the various court officers, and the relevant documents in criminal law, can be obtained.
The respondents perceive no difficulties in accessing judges who are capable of providing services in English: six out of six say that it is easy to obtain these services from judges. The proportion of positive responses to the other questions that is 80% or higher, with the exception of services in English from provincial prosecutors, for which 67% of responses were positive. Interpretation services seem to be generally accessible, with 80% of the lawyers saying that it is easy to access them. More difficulty is encountered in empanelling a jury capable of understanding the case in English; 50% of respondents believe that this is not easy.
On the question of documentation, there seems to be no particular difficulty with access to legislation in English, legal literature in English and pleadings in English. Access to the case law in English is reported to be more complicated: 33% believe that it is difficult to access.
Views of Lawyers Practising Bankruptcy Law Regarding Accessibility of services and documents in English
The data in Table 11.6 show that in bankruptcy law it is easier to access services in English from judges than from officers of the Superior Court: 80% of respondents believe that it is easy to access services in English from a judge, while 57% believe that it is easy to obtain services in that language from officers of the Superior Court. It is reported to be least easy to obtain services in English in bankruptcy law matters from courthouse administrative personnel. Only 21% of the lawyers believe that those services are readily accessible.
It seems to be fairly difficult to obtain interpretation services in bankruptcy cases: 43% of the respondents, fewer than half, say that they are accessible.
On the question of documentation, there appears to be some difficulties in terms of access to the legal literature and case law in English: 36% of the lawyers believe that they are not easily accessible. However, 86% of them believe that it is easy to access pleadings in English.
Views of Lawyers Practising the Law of Divorce and Support Regarding Accessibility of Services and Documents in French
Table 11.7 sets out the opinions of the lawyers concerning the accessibility of judicial and legal services in divorce and support cases.
All of the respondents (100%) agree that there is no difficulty in accessing services in English from judges.
However, as in the other two areas under federal jurisdiction in issue here, it is more difficult to obtain services in English from officers of the provincial court and Superior Court: 57% of the respondents believe that these services are readily accessible. Here as well services are least accessible from courthouse administrative personnel, with only 29% of respondents believing that it is easy to access services in English from that category of personnel.
Interpretation services are considered to be easily accessible by 43% of the respondents.
The legislation is generally considered to be accessible, by 86% of respondents. However, the other documents are reported to be more difficult to obtain in English; pleadings are considered to be accessible by 50% of respondents, legal literature by 43% of respondents and case law by 29% of respondents.
Views of other actors in the judicial system regarding barriers to access to justice in English
The gaps identified by the survey were also mentioned by other actors in Quebec's judicial system. For instance, we were told that some regions of Quebec have no anglophone judges assigned permanently to the Court of Quebec, and that this results in delays in the provision of judicial and legal services to anglophones living in those regions who appear in that Court. With some exceptions, there is also a shortage of personnel who have a high degree of proficiency in English in the courts' support services. Some courthouses have no bilingual personnel.
The respondents report that there are no difficulties in respect of judicial and legal services in English in the Gatineau-Hull region. The participants assume that the same is true in Montreal. In the other regions, the difficulties described are quite real.
Possible Solutions
Federal
At the federal level, the following ideas could be considered:
- Creating a system for monitoring the language proficiency of judges.
- Offering English terminology courses for judges, lawyers and law students.
- Preparing a list of lawyers who are capable of practising law in English. The English Speaking Section of the Barreau de Montréal, the Barreau du Québec or the CBA-Quebec could play a role as the federal government's partner for this purpose.
- Having the federal government propose legislative measures to ensure that the rights that are provided in criminal cases are also available in the other areas under federal jurisdiction, and specifically divorce and bankruptcy.
- Ensuring that the parties do not have to pay the costs of translation at bilingual trials.
- Funding legal aid more generously, and creating a system to provide for easy identification of bilingual legal aid lawyers. One participant proposed that the language component of legal aid come from the Department of Canadian Heritage rather than the Department of Justice of Canada.
Provincial
At the provincial level, the following ideas could be considered:
- Implementing a policy to provide signs and information to inform English-speaking individuals appearing in the courts of their constitutional right under section 133 and their rights under section 530 of the Criminal Code. That documentation should be available at the courthouses and the points at which individuals enter the system.
- Hiring bilingual personnel at courthouses and designating certain positions as bilingual.
- Ensuring that prosecutors assigned to cases in which the language of the trial is English, or cases that proceed in both languages, are capable of speaking English or both languages.
- Ensuring that police forces have members who are capable of offering services in English.
- Ensuring that provincial judges have access to the language training courses offered by the Office of the Commissioner for Federal Judicial Affairs at no additional cost to them.
Tables
| English-speaking clientele | 58% |
|---|---|
| Clients demanding services in English | 77% |
| Yes | No | Do not know | ||||
|---|---|---|---|---|---|---|
| Delays in services | 7 | (15%) | 37 | (79%) | 3 | (6%) |
| Additional costs | 11 | (23%) | 35 | (74%) | 1 | (2%) |
| Unfavourable judgment | 18 | (39%) | 27 | (59%) | 1 | (2%) |
| Possible inscription in appeal | 7 | (15%) | 35 | (76%) | 4 | (9%) |
| Perceived fear, among the clients, of a negative impact on their case | 25 | (52%) | 18 | (38%) | 5 | (10%) |
| Yes | No | Do not know | ||||
|---|---|---|---|---|---|---|
| Awareness of section 530 | 5 | (71%) | 1 | (14%) | 1 | (14%) |
| Awareness of the stages in the process where there is a possibility of making decisions on language | 5 | (71%) | 1 | (14%) | 1 | (14%) |
| Lawyers who advise their clients each time the opportunity of making a linguistic choice arises | 5 | (83%) | 1 | (17%) | 0 | (0%) |
| Judges who advise the accused of their linguistic options each time the opportunity arises | 3 | (60%) | 1 | (20%) | 1 | (20%) |
| Availability of relevant forms in English | 2 | (40%) | 1 | (20%) | 2 | (40%) |
| Satisfied | Not satisfied | |||
|---|---|---|---|---|
| Generally speaking, regarding the availability of judicial and legal services in English in criminal law, you are: | 5 | 100% | 0 | 0% |
| Generally speaking, regarding the availability of judicial and legal services in English in bankruptcy law, you are: | 13 | 87% | 2 | 13% |
| Generally speaking, regarding the availability of judicial and legal services in English in the law of divorce and support, you are: | 7 | 88% | 1 | 12% |
| Yes | No | Do not know | ||||
|---|---|---|---|---|---|---|
| From judges | 6 | (100%) | 0 | (0%) | 0 | (0%) |
| From officers of the Provincial Court | 4 | (67%) | 2 | (33%) | 0 | (0%) |
| From officers of the Superior Court | 5 | (83%) | 1 | (17%) | 0 | (0%) |
| From administrative officials at the Court House | 4 | (80%) | 0 | (0%) | 1 | (20%) |
| From federal prosecutors or legal agents of the Attorney General of Canada | 5 | (83%) | 0 | (0%) | 1 | (17%) |
| From provincial prosecutors and their substitutes | 5 | (83%) | 0 | (0%) | 1 | (17%) |
| From interpreters | 4 | (80%) | 0 | (0%) | 1 | (20%) |
| In legal proceedings in English | 5 | (83%) | 1 | (17%) | 0 | (0%) |
| To empanel a jury whose members are capable of hearing a case in English | 3 | (50%) | 0 | (0%) | 3 | (50%) |
| Of legislation in English | 6 | (100%) | 0 | (0%) | 0 | (0%) |
| Of case law, court rulings, etc. in English | 4 | (67%) | 2 | (33%) | 0 | (0%) |
| Of jurisprudence, i.e. legal sources, in English | 6 | (100%) | 0 | (0%) | 0 | (0%) |
| Yes | No | Do not know | ||||
|---|---|---|---|---|---|---|
| From judges | 12 | (80%) | 1 | (7%) | 2 | (13%) |
| From officers of the Superior Court | 8 | (57%) | 5 | (36%) | 1 | (7%) |
| From administrative officials of the Court House | 3 | (21%) | 8 | (57%) | 3 | (21%) |
| From interpreters | 6 | (43%) | 3 | (21%) | 5 | (36%) |
| In legal proceedings in English | 12 | (86%) | 2 | (14%) | 0 | (0%) |
| Of case law, court rulings, etc. in English | 9 | (64%) | 5 | (36%) | 0 | (0%) |
| Of jurisprudence, i.e. legal sources, in English | 9 | (64%) | 5 | (36%) | 0 | (0%) |
| Yes | No | Do not know | ||||
|---|---|---|---|---|---|---|
| From judges | 7 | (100%) | 0 | (0%) | 0 | (0%) |
| From officers of the Provincial Court | 4 | (57%) | 2 | (29%) | 1 | (14%) |
| From officers of the Superior Court | 4 | (57%) | 2 | (29%) | 1 | (14%) |
| From administrative officials of the Court House | 2 | (29%) | 2 | (29%) | 3 | (43%) |
| From interpreters | 3 | (43%) | 2 | (29%) | 2 | (29%) |
| In legal proceedings in English | 3 | (50%) | 3 | (50%) | 0 | (0%) |
| Of legislation in English | 6 | (86%) | 1 | (14%) | 0 | (0%) |
| Of case law, court rulings, etc. in English | 3 | (43%) | 4 | (57%) | 0 | (0%) |
| As to jurisprudence, i.e. legal sources, in English | 2 | (29%) | 5 | (71%) | 0 | (0%) |
- [80] R.S.Q. c. T-16
- [81] http://www.gouv.qc.ca/Vision/Institutions/InstitutionsJudiciaires_en.html#Legal Courts
- [82] Ibid.
- [83] R.S.Q. c. P-34.1
- [84] R.S.C. 1985, c. Y-1
- [85] R.S.Q. c. C-72.01
- [86] Charter of the City of Laval, 1965, 1st Session, c. 89
- [87] An Act to reform the municipal territorial organization of the metropolitan regions of Montréal, Québec and Outaouais, S.Q. 2000, c. 56
- [88] R.S.Q. c. J-3
- [89] Report of the ad hoc Committee on Accessibility of the Justice System in the English Language in Montreal, Barreau de Montréal, March 31, 1995
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