Environmental Scan: Access to Justice in Both Official Languages

Chapter 12: Saskatchewan

Structure of the Judicial System

Judicature

Superior Courts

The Saskatchewan Court of Appeal Act[90] establishes a superior court of record called the Court of Appeal for Saskatchewan, which sits in Regina and Saskatoon.

The Saskatchewan Queen's Bench Act[91] establishes a superior court of record called the Court of Queen's Bench for Saskatchewan, which sits in various municipalities in the province.

As well, the Queen's Bench Act also creates a division called the Family Law Division. The judges of the Court of Queen's Bench are ex officio judges of the Family Law Division.

Provincial Courts

The Saskatchewan Provincial Court Act[92] establishes the Provincial Court of Saskatchewan to which is essentially conveyed the criminal and quasi-criminal jurisdiction of the province. The Provincial Court also has jurisdiction to hear cases under the Young Offenders Act.[93]

Outside Prince Albert, Regina and Saskatoon, the Provincial Court can also hear some family law matters (support and maintenance, paternity, child welfare).[94]

Under the Small Claims Act,[95] a claim for an amount that does not exceed $5,000[96] may be heard by a judge of the Provincial Court of Saskatchewan. An appeal lies to the Court of Queen's Bench and ultimately to the Court of Appeal.

Constitutional Obligations

There is no constitutional obligation to provide services in French in Saskatchewan.

Provincial Legislation

In 1988, the Supreme Court of Canada held that there was still a right to use French or English in the Saskatchewan courts under section 110 of the North-West Territories Act,[97] which was in force when that province joined Confederation in 1905.[98] However, the Government of Saskatchewan exercised its legislative power, which the Supreme Court had recognized, and enacted the Act respecting the Use of the English and French Languages in Saskatchewan.[99] That Act repeals the former provisions of the North-West Territories Act as they related to provincial quasi-criminal and civil proceedings, and granted more limited language rights that apply to the judicial system. Subsection 11(1) of that Act allows the use of French and English in the designated courts.

Profile of the Francophone Community[100]

Demographics

As far as language goes, the residents of Saskatchewan are relatively homogeneous. Of a population of 976,615, 84.6% have English as their mother tongue. Francophones make up 2% of the total population.

The population whose mother tongue is French has gone from 36,815 in 1951 to 19,901 in 1996, with the greatest decline after 1961. This is attributed to the decline in birth rates among francophones. During only the past five years, the French language community in Saskatchewan has decreased by more than 1,800 people.

Geography

French speaking people can be found in all parts of the province. They are, however, concentrated in two regions. The first francophone community grew up along the banks of the North and South Saskatchewan Rivers at the end of the 19th century. It was centred around the Metis village of Batoche and the city of Prince Albert. The second settlement, founded at the beginning of the 20th century, was in a village called Gravelbourg, in a semi-arid area of south-central Saskatchewan suitable mostly for raising cattle. Census Division 3 is the only one of eighteen census divisions to have more than 10 percent francophones. French, however, is the majority language in certain rural settlements: the town of Ponteix in the south end of the province, the rural municipality of Saint-Louis, the village of Domrémy in the centre, and the village of Zenon Park in the east.

The francophone population of the main urban centres of the province has grown considerably as a result of francophones migrating from the villages. Today, there are more than 3,500 francophones in Saskatoon, approximately 2,500 in Regina, and 1,350 in Prince Albert. Compared to the other Canadian provinces, however, francophones in Saskatchewan live in predominantly rural settings.

Economy

There is a Coopérative de développement économique in Bellevue and Zenon Park. As well, the communities of Ponteix, Willow Bunch and Gravelbourg formed an association for developing francophone tourism in southern Saskatchewan. The Conseil de la coopération de la Saskatchewan has the following projects: planning, development and promotion of tourism in Fransaskois communities, organization of an annual economic forum in February, development of young entrepreneurs, and a directory of French services in Saskatchewan.

Education

The Division scolaire francophone (DSF) manages nine francophone school districts with 12 Saskatchewan francophone schools, each of which has a kindergarten.

Each district consists of francophone groups exercising their right to have their children taught in French.

At the secondary level, the Collège Mathieu was founded in 1918. Its mandate is to provide French Catholic education. There is also the Service fransaskois de l'éducation des adultes (SFEA), which coordinates adult education for Fransaskois.

Voluntary Sector

The Assemblée communautaire franskaskoise (ACF), a representative organization founded in 1912, speaks for the francophone community in all matters of community development. It is made up of 12 regional associations and works to improve French services in all sectors. True to its mandate to promote and defend the rights and aspirations of the francophone community, ACF makes a concerted effort to support the various sectors of the community in their development efforts. Also, Saskatchewan does have an AJEF.

Profile of Respondents

We secured the participation of various actors in the Saskatchewan judicial system. In addition to surveying lawyers who belong to the Saskatchewan AJEF, we questioned a judge, prosecutors, administrators and court clerks.

Of the 41 members of the Saskatchewan AJEF, 14 responded to the survey, either on line or by telephone. The response rate for this province was 34%. Of those respondents, 13 are lawyers in private practice, and they accounted for 93% of respondents. The lawyers who responded to the survey represent 72% of the lawyers who belong to the AJEF.

Of those lawyers, 62% have French as their mother tongue and 38% have English as their mother tongue. The language of work of 77% of the lawyers who participated in the survey (10 lawyers out of 13) is English, while 15% of the lawyers surveyed practise in English and French. Only one lawyer reports working in French. These figures suggest that there will be a very low demand for judicial and legal services in French in Saskatchewan.

A very large majority of those lawyers, 11 out of 13, or 85%, studied law in English. Only two of the respondents (15%) studied in French and English. These lawyers practise in various regions of the province, including the capital, Regina, and Saskatoon, Prince Albert, Swift Current, North Battleford and Estevan.

Supply of and Demand for Services in French

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

The proportion of these lawyers' clients who are French-speaking is relatively low: on average, 15%, and only 17% of those francophone clients, on average, request services in French. This data reinforce the impression that emerged earlier, that the demand for judicial and legal services in French in this province is low.

Views of Other Actors in the Judicial System

According to some other actors, the level of demand for services in French is so low that it is unrealistic to attempt to provide those services. We are told that, when the occasional situation arises, ad hoc measures must be taken to address it.

In the view of more critical participants, the low demand for services in French is a result of the system's inability to deliver those services properly. In the view of that category of participants, the judicial system's capacity to function in French must first be increased before raising awareness among the public of their entitlement to request services in French. They ask what point there would be in making francophones appearing in the courts aware of a service that does not exist or is ineffective. From that standpoint, supply must precede demand since demand can be expected to result if supply is more suited to the need.

Perception of Impact of Proceeding in French

In the consultation, we were told that whether or not a person appearing in the courts decided to proceed in French depends on his or her perception of the impact of making that request. Table 12.1 sets out the lawyers' perceptions on that subject.

Of the lawyers, 63% believe that their francophone clients are afraid of the negative impacts of proceeding in French. The same proportion, 62%, believe that delays in the provision of services have an impact on the decision as to whether or not to proceed in French. On the question of costs, 68% believe that this factor has an impact on the decision as to whether or not to proceed in French. That opinion as to additional time and costs incurred is also expressed by the other actors in the judicial system.

A large proportion of lawyers, 46%, do not believe that the possibility of an unfavourable judgment has an impact on the decision as to whether to proceed in French. However, a relatively high proportion of lawyers, 38%, express no opinion, and 15% believe that this factor may have an impact.

On the question of the possibility of appealing, 31% of the lawyers believe that this factor has an impact on the decision as to whether to proceed in French while the same proportion believe that it does not, and 38% of the lawyers express no opinion.

Awareness and Application of Section 530 of the Criminal Code

The lawyers who belong to the AJEF are generally familiar with section 530 of the Criminal Code, and 100% say that they know the points when a language choice may be made (see Table 12.2). However, 84% of the lawyers do not believe that judges inform accused persons who are not represented by counsel of the possibility of making a language choice, while only 17% say that the judges do so. These figures are of particular concern in that this measure is set out in section 530 of the Criminal Code.

Active Offer of Service

As shown in Table 12.3, a majority of lawyers believe that there is no real active offer of services in French in Saskatchewan. The other actors in the judicial system share that opinion.

Barriers to Access to Justice in French

Overall Level of Satisfaction with Judicial and Legal Services in French

As shown in Table 12.4, the level of dissatisfaction with judicial and legal services in French in the three areas under federal jurisdiction that were examined is very high, ranging from 67% for bankruptcy law and divorce law to 100% for criminal law. The following section and the three tables that it includes will help to explain the reasons for this virtually universal dissatisfaction.

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

Table 12.5 illustrates that, in criminal law, it is generally difficult to access services in French. High proportions of the respondents say that it is not easy to access services from judges (83%), from officers of the provincial court (83%), from officers of the superior court (83%), from courthouse administrative personnel (100%), from federal prosecutors (83%), and from interpreters (67%).

Views of Other Actors in the Judicial System

There is no provincial language-training program for judges or judicial personnel in Saskatchewan. We are told that there is a francophone court clerk in Prince Albert, and the provincial Department of Justice is trying to recruit bilingual court clerks for towns where there is a certain concentration of francophones. However, we are told that it is very difficult to recruit bilingual personnel for this position.

Views of lawyers Practising Bankruptcy Law Regarding Accessibility of services and documents in French

Table 12.6 shows that there is just as much difficulty in accessing services in French in bankruptcy law. However, it seems that, apart from the legal literature, documents in French are generally more easily accessible.

Views of lawyers Practising the Law of Divorce and Support Regarding Accessibility of services and documents in French

Table 12.7 illustrates that the situation regarding divorce law is similar to the situation for the other two areas of law under federal jurisdiction.

These three tables indicate that the Saskatchewan judicial system has a limited capacity to respond in French to the needs of francophones appearing in the courts. The comments received from other actors in the system enable us to explore the issue in a little more depth.

Views of Other Actors in the Judicial System

In the opinion of one of our respondents, francophones appearing in the courts in this province are at a disadvantage if they wish to speak their own language in proceedings that fall within the areas of federal jurisdiction. They do not have access to trials or hearings of cases in French, only to bilingual proceedings with translation.

One of the main reasons why asking to proceed in French creates this disadvantage is that there are unilingual anglophone lawyers who do not understand French and cannot function in that language.

In the opinion of a number of actors in the system, the provincial government sees no need to promote access to justice in the official language of the minority because demand is not sufficient. It seems that some people use supply and demand as an argument to justify the fact that the judicial system has no capacity to provide services in French. Then, because the demand is low, the argument is that it does not justify greater supply. If a different approach was taken, and this was regarded as a matter of law, the issue would be addressed differently. It would then be easier to comply with the recent decisions of the Supreme Court in respect of language rights.

There is a shortage of francophone or bilingual judges at all levels of the courts in the province. This is also true for all other categories of personnel in various positions in the judicial system.

The decisions of the courts of the province are not translated into French. Only about twenty provincial statutes have been translated into French, and the provincial statutes are being translated at a rate of two per year.

It is very difficult to empanel a bilingual jury in a majority of the judicial divisions in the province, with the exception of Saskatoon. Translation and interpretation services are inadequate, except in Saskatoon where the quality is satisfactory.

Initiatives

We have been informed of two recent initiatives that were announced by the Saskatchewan Minister of Justice at the last annual banquet/conference of the Association des juristes d'expression française de la Saskatchewan. The Minister expressed his openness to appointing another bilingual judge to the Provincial Court. He also announced that the Department, in cooperation with the Association des juristes d'expression française de la Saskatchewan and the Assemblée communautaire fransaskoise, would be developing a policy on the delivery of judicial and legal services in French. The committee is currently working on this, but it has not yet reported its proposals.

Possible Solutions

The possible solutions that we propose are taken from the survey responses, interviews and questionnaires, and from the focus group of French-speaking lawyers. They are divided according to whether they relate to the federal or provincial governments or other bodies.

Federal

The following are some of the possible solutions that were suggested in the course of our consultations with respondents and other actors in the judicial system in Saskatchewan. The federal government could consider:

Provincial

At the provincial level, the following possible solutions were identified:

Tables

Table 12.1: Perception of the Impacts of Proceeding in French
  Yes No Do not know
Delays in services 8 (62%) 3 (23%) 2 (15%)
Additional costs 9 (69%) 3 (23%) 1 (8%)
Unfavourable judgment 2 (15%) 6 (46%) 5 (38%)
Possible inscription in appeal 4 (31%) 4 (31%) 5 (38%)
Perceived fear, among the clients, of a negative impact on their case 8 (62%) 3 (23%) 2 (15%)
Table 12.2: Awareness and Application of Section 530 of the Criminal Code
  Yes No Do not know
Awareness of section 530 5 (83%) 0 (0%) 1 (17%)
Awareness of the stages in the process where there is a possibility of making decisions on language 6 (100%) 0 (0%) 0 (0%)
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 1 (17%) 5 (83%) 0 (0%)
Availability of relevant forms in French 4 (67%) 2 (33%) 0 (0%)
Table 12.3: Active Offer of Service
  Yes No Do not know
Existence of a policy on the active offer of service in both official languages in the province 2 (33%) 4 (67%) 0 (0%)
Table 12.4: 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: 0 (0%) 6 (100%)
Generally speaking, regarding the availability of judicial and legal services in French in bankruptcy law, you are: 1 (33%) 2 (67%)
Generally speaking, regarding the availability of judicial and legal services in French in the law of divorce and support, you are: 3 (33%) 6 (67%)
Table 12.5: Availability of French Services and Documents According to Criminal Lawyers
  Yes No Do not know
From judges 1 (17%) 5 (83%) 0 (0%)
From officers of the Provincial Court 1 (17%) 5 (83%) 0 (0%)
From officers of the Superior Court 1 (17%) 5 (83%) 0 (0%)
From administrative officials at the Court House 0 (0%) 6 (100%) 0 (0%)
From federal prosecutors or legal agents of the Attorney General of Canada 0 (0%) 5 (83%) 1 (17%)
From provincial prosecutors and their substitutes 3 (50%) 3 (50%) 0 (0%)
From interpreters 2 (33%) 4 (67%) 0 (0%)
In legal proceedings in French 3 (50%) 3 (50%) 0 (0%)
To empanel a jury whose members are capable of hearing a case in French 4 (67%) 1 (17%) 1 (17%)
Of legislation in French 4 (67%) 2 (33%) 0 (0%)
Of case law, court rulings, etc. in French 2 (33%) 4 (67%) 0 (0%)
Of jurisprudence, i.e. legal sources, in French 3 (50%) 2 (33%) 1 (17%)
Table 12.6: Availability of French Documents and Services According to Lawyers in Bankruptcy Law
  Yes No Do not know
From judges 1 (33%) 2 (67%) 0 (0%)
From officers of the Superior Court 1 (33%) 2 (67%) 0 (0%)
From administrative officials of the Court House 0 (0%) 2 (100%) 0 (0%)
From interpreters 1 (33%) 1 (33%) 1 (33%)
In legal proceedings in French 2 (67%) 1 (33%) 0 (0%)
Of case law, court rulings, etc. in French 2 (67%) 1 (33%) 0 (0%)
Of jurisprudence, i.e. legal sources, in French 1 (33%) 2 (67%) 0 (0%)

Table 12.7: Availability of French Documents and Services According to Lawyers in Law of Divorce and Support
  Yes No Do not know
From judges 4 (44%) 5 (56%) 0 (0%)
From officers of the Provincial Court 2 (22%) 5 (56%) 2 (22%)
From officers of the Superior Court 1 (11%) 7 (78%) 1 (11%)
From administrative officials of the Court House 0 (0%) 7 (78%) 2 (22%)
From interpreters 2 (22%) 7 (78%) 0 (0%)
In legal proceedings in French 4 (44%) 4 (44%) 1 (11%)
Of legislation in French 4 (44%) 3 (33%) 2 (22%)
Of case law, court rulings, etc. in French 2 (22%) 5 (56%) 2 (22%)
As to jurisprudence, i.e. legal sources, in French 2 (25%) 5 (63%) 1 (13%)