Environmental Scan: Access to Justice in Both Official Languages

Chapter 14: Northwest Territories

Structure of the Judicial System

Judicature

Superior Courts

The Northwest Territories Judicature Act[108] establishes a superior court of record called the Court of Appeal for the Northwest Territories. The Court of Appeal is composed of judges appointed by the Governor in Council from the judges and supernumerary judges of the Court of Appeal of Alberta, the judges of the Saskatchewan Court of Appeal, and the ex officio judges of the Supreme Court of the Northwest Territories. The Court of Appeal may sit in the Territories or in the province of Alberta.

The Judicature Act also establishes a superior court of record called the Supreme Court of the Northwest Territories. The judges of the Supreme Court are ex officio judges of the Territorial Court and justices of the peace.

Territorial Courts

The Northwest Territories Territorial Court Act[109] establishes a court of record called the Territorial Court of the Northwest Territories, to which the criminal and quasi-criminal jurisdiction of the Territories are conveyed.

The Territorial Court is designated as the youth court for the purposes of the Young Offenders Act[110] and the Young Offenders Act (Canada). The youth court is also a court of record.

The Territorial Court has jurisdiction in civil matters for claims for amounts not exceeding $5,000. Appeals from its decisions lie to the Supreme Court and, ultimately, the Court of Appeal.

Constitutional Obligations

The first version of section 110 was enacted in 1877.[111] It provided that every person could use French or English in the courts. The later version of that section was enacted in 1886.[112] In addition to the fact that it reiterated the free choice of 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 Legislature.

Profile of the Francophone Community[113]

Demographics

The great majority of the people of the Northwest Territories are anglophone. Out of the 40,030 inhabitants, 75% have English as their mother tongue. Francophones make up 2.5% of the total population (1,010 according to the 1996 census).

The number of people with French as a mother tongue in the Northwest Territories (pre-1999 borders) almost tripled between 1951 and 1996. The increase was particularly significant from 1951 to 1961 due to the rapid expansion of the mining industry around Yellowknife. Oil drilling and large infrastructure projects continued to attract large numbers of people from the South, including many francophones, until the early 1990s. The francophone population stabilized between 1991 and 1996.

Geography

Francophones are present in several villages and towns in the Northwest Territories. By far, the greatest concentration of francophones is found in the census subdivision covering the Yellowknife urban area: more than 650 francophones (67% of the total Franco-Tenois population).

However, nowhere do Franco-Tenois represent a significant percentage of the population: 2.7% in the Fort Smith area and 1.4% around Inuvik in the North. They represent only 3.8% of the population of Yellowknife, which is just slightly more than their proportion of the territories' population as a whole.

Economy

Franco-Tenois are a people in motion. Coming mainly from Quebec and Acadian communities, they normally remain in the Northwest Territories for two or three years. They hold two records: that of the most educated minority and that of the highest average salary in Canada. The main sources of income for Franco-Tenois are mining (gold and diamonds), government services, and business, particularly in the areas of construction and high technology.

Education

Education is the key to the vitality of the Franco-Ténois community. This vitality comes in part from the fact that a large percentage of francophones have a post-secondary education: 260 of them have a university education and, in addition, some 330 Franco-Tenois finished college or other studies. Their contribution to francophone development in the territories is immeasurable.

The Territories have a French first language educational program in Yellowknife and another one in Hay River. There is also a francization program for Yellowknife, Hay River and Fort Smith and an all-French school: the École Alain-St-Cyr, in Yellowknife. However, there are no French high schools and no educational or learning programs in French for adults.

Voluntary Sector

The Fédération Franco-Ténoise (FFT) is the organization that speaks for the francophone community in the Northwest Territories. In addition to political lobbying, program management and community development, the FFT is increasingly concerned with providing its members with a wide range of services. There is no association of French-speaking lawyers in the Northwest Territories.

Profile of Respondents

Since there is no association of French-speaking lawyers in the Northwest Territories, efforts were made to identify lawyers capable of practising in French. Those efforts identified three people who could respond to the questionnaire, only one of whom is a lawyer in private practice and whose mother tongue is English. As well, other actors in the judicial system were interviewed for the study. Despite the very low number of respondents, it is still important to consider their views. In total, four people were interviewed for the study in respect of judicial and legal services in French in the Northwest Territories.

Supply of and Demand for Services in French

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

In view of the small number of francophones in the Northwest Territories, the demand for judicial and legal services in French is not high. According to the responses obtained from our various study participants, there are virtually no requests to proceed in French or in both official languages. If the situation does arise, it is extremely rare. In fact, there has been no request made in the last three years.

This virtual absence of 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. Another factor to be considered in explaining this situation could be the lack of francophone lawyers who are capable of representing a client in French.

Perception of Impact of Proceeding in French

Factors identified as having an impact on the decision as to whether to proceed in French include the additional costs and delays in providing services.

Awareness and Application of Section 530 of the Criminal Code

In criminal law, according to the information collected, there is no active offer of services in French in this territory. In addition, it seems that judges do not always advise accused persons who are representing themselves of their right to make a choice of language under section 530 of the Criminal Code.

Barriers to Access to Justice in French

Francophones living in the Northwest Territories who appear before the courts are at a disadvantage because of their language. The fact that francophone judicial and legal services have to be imported from Alberta, the delays in the provision of judicial and legal services in French, the time needed being longer than for individuals appearing in the other official languages and the fact that they have to appear in court with the use of translators are all major disadvantages.

Because there are no francophone lawyers residing in the territory, there is virtually no private practice of law in French, and this is a major barrier to access to justice in French.

There are a few francophone police officers, and the number of francophones in Yellowknife is high enough to be able to empanel a francophone jury.

Section 110 of the North-West Territories Act (1886) provides that French and English may be used in the courts. Section 43.1 of Part II.1 of the Northwest Territories Act (1985) provides that French and English are the official languages of the Northwest Territories. Accordingly, there is no legal barrier to access to justice in both official languages. We note that the Northwest Territories recognizes eight official languages because of the presence of the Aboriginal languages.

Because there are no constitutional or legislative barriers to the use of French, the problems of access to justice in both official languages relate to the implementation of that right. Judicial and legal services in French are imported in their entirety from Alberta, and include a translation service. There is little demand for judicial and legal services in French.

Judges have access to some documentation in French at the courthouse library. There are a number of francophone peace officers but legal aid is not provided in French.

Individuals appearing in the courts have access to statutes in both official languages.

Legal services in French are imported from Alberta and are, in theory, sufficiently complete to meet the demand. However, the situation that appears to exist may be somewhat perplexing. We find it hard to understand that a minority language group does not exercise its rights to judicial and legal services in its own language when those rights are recognized both constitutionally and legislatively, given that the territorial government has an agreement with the Government of Alberta to provide judicial and legal services in French. Perhaps a lack of awareness on the part of francophones appearing in the courts or the fact that there are no francophone lawyers in private practice can explain this phenomenon.

Possible Solutions

The low population density and small number of francophones in this territory make it difficult to find permanent solutions on site.

However, some suggestions may be made. The federal government could consider: