Environmental Scan: Access to Justice in Both Official Languages

Chapter 15: Yukon

Structure of the Judicial System

Judicature

Superior Courts

The Yukon Court of Appeal Act[114] establishes a superior court of record called the Court of Appeal. Under that Act, the Court of Appeal is made up of judges of the Court of Appeal of British Columbia[115] and the Court sites either in Yukon (Whitehorse[116]) or in British Columbia (Vancouver[117]). The rules of procedure of the Court of Appeal, unless otherwise provided for by the Act, are the rules of the Court of Appeal of British Columbia.

The Yukon Supreme Court Act[118] establishes a superior court of record called the Supreme Court of the Yukon Territory, the powers of which are also defined in the Judicature Act.[119] The Supreme Court may sit in the Northwest Territories for the purpose of hearing a civil case other than a civil case where the Court sits with a jury. There are two judges from Yukon and other judges appointed at the discretion of the Governor in Council[120] (at the moment, five judges from the NWT and Nunavut and 42 deputy judges from elsewhere in Canada).

Territorial Courts

The Yukon Territorial Court Act[121] establishes a court of record called the Territorial Court of Yukon to which is essentially conveyed the criminal and quasi-criminal jurisdiction of the territory. The Territorial Court is designated as the youth court for the purposes of the Young Offenders Act.[122] It has no civil jurisdiction. A judge of the Supreme Court or the Court of Appeal may sit as a judge of the Territorial Court.

The Territorial Court Act also establishes the Justice of the Peace Court of Yukon, which has jurisdiction in certain summary conviction cases and also has jurisdiction under the Young Offenders Act.[123]

The Yukon Small Claims Court Act[124] establishes the Small Claims Court of the Yukon, which has jurisdiction to hear civil cases in which the amount in issue does not exceed $3,000.[125] The Small Claims Court is presided over by a judge of the Territorial Court. Appeals from its judgments lie to the Supreme Court (trial de novo).

Constitutional Obligations

The first version of section 110 was enacted in 1877.[126] It provided that every person could use French or English in the courts. The later version of that section was enacted in 1886.[127] In addition to the fact that it reiterated the free choice as to 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 Territorial Legislature. As well, section 5 of the Yukon 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 Legislative Assembly".

Profile of the Francophone Community[128]

Demographics

The population of Yukon is very homogeneous with respect to language. Of the territory's 30,650 inhabitants, 86.8% have English as their mother tongue. Francophones make up 3.8% of the total population (1,170 according to the 1996 census).

The number of francophones in Yukon more than tripled between 1951 and 1996. Their numbers, which grew only slightly until 1981, grew quickly during the last 15 years to exceed one thousand in 1996. Many francophones have chosen to settle in the territory following the example of other Canadians who came to Yukon from different areas to work on the great transportation networks projects that have marked its recent history.

Geography

There are francophones in several towns and villages in Yukon. By far the greatest concentration is in the census division corresponding to the urban region of Whitehorse: more than 770 francophones, or 68% of all francophones in Yukon. There are 45 in Dawson and 40 in Faro. The others are spread out in different localities linked to mining development and in outlying areas around Whitehorse.

Economy

In recent years, the Association franco-yukonaise (AFY) has developed products that showcase the contribution of francophones to Yukon society. For AFY, the sale of these products is a further step in becoming self-sufficient. In 1991, the Société des immeubles franco-yukonnais (SIFY) was formed.

In 1997, as a result of the federal government's austerity measures, the francophone community in Yukon joined forces with anglophone cultural agencies and with the First Nation, Kwanlin Dun, to create a multi-lingual economic, cultural and community development centre in downtown Whitehorse. The inaugural event was the creation of the Fondation yukonnaise pour l'Unité (FYU).

Education

The Émilie Tremblay school became a unilingual French school in 1990: in 1999, its enrolment was 110. Since then, a number of associations and partners have been established, including Alpha Yukon, the French literacy committee, and the Association des partenaires de l'école française, established in 1990 and 1997, respectively.

Voluntary Sector

The AFY, which was incorporated in 1982, is the main organization representing francophones. The AFY acts as both spokesgroup and community development agency. AFY fosters the maintenance of good relations between francophones, the First Nations, and all ethnic groups in Yukon. There is no association of French-speaking lawyers in Yukon.

Profile of Respondents

Since there is no association of French-speaking lawyers in Yukon, efforts were made to identify French-speaking lawyers and lawyers capable of practising law in French. Although we communicated with the Law Society of Yukon, those efforts were unsuccessful.

However, one francophone lawyer who practised in Yukon until quite recently was identified and contacted, and he responded to the survey. As well, other actors in the legal system were interviewed for the study. Despite the very small number of respondents, it is still important to consider the responses given by that lawyer and the other actors. In total, three people were interviewed for the study concerning judicial and legal services in French in Yukon.

Supply of and Demand for Services in French

At the outset, it must be recalled that there are about 1,200 francophone residents of Yukon, which suggests that there would be a relatively small number of requests to proceed in French there. According to the information obtained, there is at present no or virtually no demand for proceeding in French or in both official languages. However, this was not always the case.

From 1992 to 1997, there were more requests to proceed in French, and estimates are that there may have been five or six a year. According to one of the study participants, that is explained by the fact that there was a francophone lawyer in private practice in Yukon. This is a simple but salient observation: demand for judicial and legal services in French (including applications under section 530 of the Criminal Code) depends in large part on the availability of lawyers in private practice who are capable of providing services in French. The existence of a bilingual or francophone judicial infrastructure is useful only if individuals appearing before the courts can access francophone or bilingual lawyers in private practice.

There do not seem to be any fears of negative impact on the part of individuals in terms of deciding whether to proceed in French. However, the time involved in providing services seems to be a factor in the decision as to whether or not to proceed in French.

The low demand for judicial and legal services (particularly trials) in French may also be due to a lack of information concerning the language rights of persons appearing before the courts.

In criminal law, there does not seem to be any policy in Yukon for active offer of service in both official languages. An accused indeed has the right to be heard in French, but has to apply to exercise it. It is not certain that judges always advise accused persons of their language rights under section 530 of the Criminal Code.

Barriers to Access to Justice in French

Accessibility of Services and Documents in French

Not having enough responses from our respondents concerning the level of satisfaction with judicial and legal services in French, we are unable to provide many details in this regard. However, there does not seem to be too much dissatisfaction in respect of criminal law. Overall, respondents say that they have some access to judicial personnel who are capable of providing services in French. However, as noted earlier, it is more difficult to have access to lawyers in private practice who are capable of practising law in French.

We are told that judicial and legal services in French are relatively accessible, and that a person appearing in court may have access to a judge who understands French. It is apparently not always easy to empanel a jury to hear a case in French.

Possible Solutions

The low population density and small number of francophones in this territory make it difficult to find permanent solutions on site. However, the following are a few possibilities.

Federal

At the federal level, the following ideas could be considered: