Canada-Wide Analysis of Official Language Training Needs in the Area of Justice

4.0 The training needs

This section of the report presents the findings on the official language training needs of justice stakeholders. It begins by providing the context of public interaction with the judicial system and the current language profile of justice stakeholders; it then looks at proficiency in legal vocabulary, and finally at basic language training and further training on the job.

4.1 Public interaction with the judicial system

Owing to the very nature of its mandate, the judicial system is inherently intimidating to persons appearing before the courts, and they may be reluctant to exercise their right to proceed in the official language of their choice. Given the growing number of contact points between these individuals and the judicial system, one can easily think of circumstances in which these rights will simply be overlooked. What follows is an exploration of these findings.

As the focus of this study is criminal law, the importance of the matters dealt with in this branch of the judicial system cannot be minimized. A criminal offence can leave many scars. For the victim of the crime, it is an extremely unpleasant experience and, at worst, shattering, even traumatic. For the accused, a conviction can lead to incarceration and systematically damages his reputation, leaving him with a criminal record. From the time of the indictment—possibly involving an arrest—and all throughout the proceedings leading to the verdict and, if applicable, the sentence, the accused and all stakeholders are involved in a highly procedural and complex process. The judicial system is not designed to be warm and friendly. On the contrary, the formalities that surround it are a reminder of the seriousness of the matters dealt with.

Since there are many possible scenarios for the processing of an indictment, the points of contact between the person appearing before the courts and the judicial system are numerous. This interaction may involve the police officer who laid the charge, the correctional service officer if the accused is in detention, the defence lawyer (who may or may not be from legal aid), the registry office, the Crown prosecutor, the clerk, the judge and possibly the probation officer, to mention only the main contact points. The process may begin with an appearance before a justice of the peace, and then continue before a provincial or superior court judge; and then there is the appeal process to consider.

In this very specific context, the active offer is of great importance. The concept of the active offer refers essentially to the obligation of the person providing a service to systematically inform the person receiving it that he has the option of being served in either official language. In a context of institutional bilingualism, no assumption can be made about an individual's preferred language of service, nor can an individual be required to make additional or exceptional arrangements in order to be served in his chosen official language. In many respects, the active offer is therefore the foundation of institutional bilingualism. The importance of this principle becomes apparent in a minority language community. As Ontario's French Language Services Commissioner recently recalled, “Generally, in a majority language community, if there is a demand, it is met. In the case of French-language services, these services first have to be offered in order for the demand for them to emerge. Thus, instead of just a sign that reads 'English/French', service providers need to be able to effectively offer high-quality French-language services.[19]

The active offer becomes particularly important in view of the power imbalance that is characteristic of the court system. Leaving aside language considerations, the accused or, more generally, any person appearing before the courts is vulnerable before a judicial system that holds exceptional powers and authority in our society. To avoid any further disadvantage, the accused or the party to a proceeding will naturally avoid making any demands on the authority to which he is answerable. To demand service in one official language presupposes, at the very least, a relationship of equality, or even of superiority, vis-à-vis the service provider. For example, a citizen probably would not hesitate to demand service in the official language of his choice from a national organization seeking a cash donation. A person subject to the jurisdiction of the courts would be far more reluctant to demand such a service from an approaching police officer. In the area of justice, it is therefore the responsibility of the relevant authority to make an active offer of service, and this issue should be addressed not at the time the charge is laid, but rather institutionally.

The knowledge that justice stakeholders have of applicable language rights varies greatly, as does that of citizens. With over two million Criminal Code offences reported and 370,000 cases brought before the courts each year, the capacity of courts to be institutionally bilingual is far from consistent across the country and presents a major challenge in minority language communities. Many times during the study consultations, stakeholders reminded us that cases heard in the minority official language often account for less than five percent of all cases heard. In this context, it is understandable that considerable care must be taken to ensure that language rights do not become lost in the sheer volume of cases.

4.2 Language proficiency of the stakeholders

Since this study focuses on official language training in the area of justice, it is important to know, as far as possible, what is the current ability of stakeholders to work in both official languages. We would point out that there is no one definitive answer to this question. However, a number of indicators suggest that the basic level of proficiency in both official languages is fairly high among the various justice stakeholders, and that this level is expected to increase in future. This subsection of the report presents some of the data that support this observation.

The ability to conduct a conversation in both official languages

The data used in this study give us a better understanding of justice stakeholders' perception of their ability to communicate in both official languages. Data from the most recent Census, conducted in 2006, directly address the issue of proficiency in both official languages. Specifically, Statistics Canada asked Canadians if they knew English and French “well enough to conduct a conversation”. It is important to be clear about the significance of the answers to this question:

Once the individuals had assessed their ability to conduct a conversation in both official languages, they were grouped by occupation[20] and by the industry in which they were employed. [21] This aggregation gives us a better understanding of the language ability of justice stakeholders. As with any classification, however, the definitions used can pose problems. The following points regarding the data used in this report deserve special mention:

N.B.: For the sake of conciseness in this subsection, the term “bilingual” is applied to individuals who, at the time of the Census, stated they had a sufficient knowledge of both English and French to conduct a conversation in either language.

The language profile of stakeholders in Canada, excluding Quebec

This analysis begins with a profile of the language ability of stakeholders working in Canada, excluding Quebec (which was analysed separately).

The number of bilingual stakeholders in jurisdictions other than Quebec is not negligible. As Table 5 shows, between 9% and 29% of stakeholders in the various occupational categories stated that they are bilingual. Judges and lawyers have the highest rates of bilingualism (29% and 25% respectively). No fewer than 540 judges and nearly 13,700 lawyers stated that they are bilingual.

For the majority of bilingual stakeholders, French is not their first official language spoken. For example, of the 13,685 bilingual lawyers, only 1,860 have French as their first official language spoken. Therefore, for the most part, they are anglophones who have learned sufficient French to conduct a conversation in that language. It is conceivable—but this is only speculation at this stage—that a number of these stakeholders attended French immersion schools.

The bilingual ability of stakeholders is somewhat lower in support functions, such as clerks, bailiffs and probation officers. This tendency may present major challenges if one considers their contribution to the smooth conduct of criminal hearings.

Table 5: Language profile of stakeholders – Canada, excluding Quebec (2006)
Occupations Total FOLS – French a Knowledge of OL b
Number % Number %
Judges 1,890 145 8% 540 29%
Justices of the peace 3,440 245 7% 535 16%
Lawyers 55,505 1,860 3% 13,685 25%
Registry officers (clerks) 2,685 165 6% 355 13%
Bailiffs (sheriffs) 1,910 45 2% 165 9%
Law clerks (assistants) 30,935 910 3% 3,565 12%
Probation officers 4,770 245 5% 670 14%
Total 101,135 3,615 4% 19,515 19%


Source: Statistics Canada, Census 2006.

The language profile of stakeholders in Quebec

In Quebec, the level of bilingualism among all stakeholders is high. As Table 6 shows, no fewer than 9 in 10 judges and more than 8 in 10 lawyers consider themselves bilingual. As elsewhere in Canada, of the total number of bilingual stakeholders, only a small proportion reported the minority language (English, in Quebec) as their first official language spoken. In the Quebec context, it is therefore mainly francophones working in various justice occupations who populate the ranks of bilingual personnel.

While bilingualism rates are therefore generally high, they are still lower in support functions, such as clerks and probation officers.

Table 6: Language profile of stakeholders – Quebec (2006)
Occupations Total FOLS – Englishc Knowledge of OLd
Number % Number %
Judges 710 25 4% 630 89%
Justices of the peace 1,080 20 2% 595 55%
Lawyers 18,445 2,090 11% 15,215 82%
Registry officers (clerks) 640 35 5% 350 55%
Bailiffs (sheriffs) 695 35 5% 440 63%
Law clerks (assistants) 4,495 585 13% 2,980 66%
Probation officers 850 20 2% 505 59%
Total 26,915 2,810 10% 20,715 77%


Source: Statistics Canada, Census 2006

Language profile by province or territory

A closer look at the language profile of some stakeholders by province or territory shows fairly predictable trends, while others are more surprising.

Thus, similar to Quebec, the level of bilingualism among New Brunswick stakeholders is high. As Table 7 shows, all New Brunswick judges stated that they are bilingual. In the other occupations, at least half of stakeholders stated that they are bilingual, with the exception of law clerks, who have the lowest level of bilingualism (29%).

The data we found of particular interest included the following:

Table 7: Language ability of stakeholders in Canada (2006)
Stakeholders Knowledge of official languages (number and percentagee)
Judges 30 75 630 235 30 20 75 80 0
19% 100% 89% 31% 16% 18% 35% 21% 0%
Justices of the peace 15 40 595 370 20 0 30 60 10
6% 53% 55% 18% 13% 0% 12% 14% 13%
Lawyers 510 570 15,215 8,945 310 190 1,280 1,830 65
19% 48% 82% 29% 16% 13% 17% 18% 26%
Registry officers (clerks) 15 10 350 230 15 0 40 45 0
13% 67% 55% 17% 12% 0% 7% 11% 0%
Bailiffs (sheriffs) 0 30 440 60 0 0 30 35 0
0% 50% 63% 13% 0% 0% 9% 5% 0%
Law clerks (assistants) 125 105 2,980 2,370 95 0 440 420 10
8% 29% 66% 14% 9% 0% 8% 9% 11%
Probation officers 25 95 505 370 25 10 30 105 0
10% 49% 59% 17% 9% 2% 6% 12% 0%


e Percentage of the total number of individuals practising the profession.

Source: Statistics Canada, Census 2006.

Differences according to age group

The level of bilingualism of justice stakeholders is expected to increase. Thus, an analysis of census data by age groups shows that a much higher proportion of young lawyers versus older lawyers stated that they are bilingual. For example, Figure 2 presents the data for lawyers working in Ontario. While 40% of those ages 25 to 34 stated that they are bilingual, this rate is systematically lower among older lawyers, reaching only 16% for lawyers ages 65 or older. This same trend is seen systematically in all stakeholder groups.

Figure 2: Percentage of lawyers in Ontario able to conduct a conversation in both OL, by age group

Percentage of lawyers in Ontario able to conduct a conversation in both OL, by age group

(Source: Statistics Canada, Census 2006)


4.3 A command of legal vocabulary

For a court to truly be institutionally bilingual it is essential for stakeholders to have a command of legal vocabulary in both official languages. Obviously, this is not the only determinant, since the administrative infrastructure of courts must also allow for the efficient planning and management of the services provided in either official language.

Needless to say, a command of legal vocabulary is much more than the ability to conduct a conversation in both official languages. The ability to conduct a conversation in both official languages is the first stage in a logical progression. The second stage is a command of the legal vocabulary appropriate to the area of justice in which the stakeholder works. The third and final stage is the appropriation of legal discourse in both official languages, that is, the ability to properly apply the legal vocabulary that has been learned. In other words, it is the ability to combine knowledge of a specialized vocabulary with standard practice of a given occupation: the stakeholder is not only familiar with the legal vocabulary, but is also able to use it daily in his contacts with other stakeholders and the public.

A command of the vocabulary specific to various areas of law presupposes that such a vocabulary exists, and in Canada this has not always been the case. As common law developed first in English and civil law in French, Canada found itself in a unique situation, in which bijuralism existed alongside institutional bilingualism. The aim is therefore to create a legal discourse that reflects both systems of law and both official languages. With criminal law as its main focus, this study found that a relatively consistent, standardized vocabulary has emerged, based on the Criminal Code. It is continually evolving, however, and must continue to do so as criminal law is amended and changed.

Language proficiency refers to both written and spoken proficiency. In criminal law, oral communication predominates, although written pleadings are regularly filed in court. In addition to any orders issued, the judge's decision may be handed down orally to the accused and entered in the record, or be rendered in writing and published, in which case it must be made available in the language of the accused. While most communication is oral, it must be recognized that the ability to draft legal documents in both official languages is essential to the notion of the institutionally bilingual court.

The need for proficiency in legal vocabulary applies equally to stakeholders from minority language communities and to those from majority language communities. An important determinant of this proficiency is the language in which the stakeholder received his professional training. Thus, a francophone lawyer from Manitoba who attended law school at the University of Manitoba may be more reluctant to proceed in French than an anglophone who graduated from an immersion program and studied law in the French common law section of University of Ottawa or at Université de Moncton. Even a francophone who attended school in French but seldom works in that language will need further training to maintain his ability to proceed in French. Training needs are therefore not confined to one language group rather than another.

Finally, a justice stakeholder will learn to function in both official languages through his basic training and on-the-job training. The following subsections will therefore look at both these areas, and at the tools and reference material available to stakeholders.

4.4 Basic training

The basic training offered in the various areas of justice only partially improves the capacity of courts to be institutionally bilingual. Following is a description of the training available to each of the main groups considered in this study.

Occupation: Lawyer
Basic training: yes
Basic training in the minority language: yes
      x x x              

Basic legal training is of course offered in every region of the country. This training is the same, whether the graduate goes on to private practice or becomes a Crown prosecutor or a legal aid lawyer and, from there, perhaps a judge. Moreover, because of Canada's legal duality, there are programs in both common law (mainly outside Quebec) and civil law (mainly within Quebec).

Some Canadian universities offer law programs in the second official language:

Laurentian University, in Sudbury, offers a bachelor of law and justice program in French. These general studies can prepare students for studies in law.

Law schools in majority language communities could play a greater role in their students' language training. Aside from those mentioned above, law schools provide essentially no opportunities for their students to learn and develop the proficiency in legal vocabulary they will need in their second official language. This situation, often deplored during the study consultations, also poorly reflects the language profile of the students who attend these schools. As Figure 3 shows, a significant proportion of young anglophone lawyers in every region of the country (outside Quebec) stated that they are able to conduct a conversation in both of Canada's official languages. This skill was obviously acquired before they entered law school or as a sideline while studying law. However, only the law faculties at Moncton, McGill and Ottawa (French program) universities give students an opportunity to improve their command of legal vocabulary in both official languages. One solution, proposed during the consultations,would be to offer courses that specifically address the issue of legal vocabulary in both official languages (rather than a series of courses in the second language). Another solution would be to offer common law courses on-line, in partnership with the law schools that already offer such courses.

Figure 3: Percentage of Anglophone lawyers age 25 to 34 able to conduct a conversation in both OL, for selected provinces

Percentage of Anglophone lawyers age 25 to 34 able to conduct a conversation in both OL, for selected provinces

(Source: Statistics Canada, Census 2006)


Occupation: Justice of the peace
Basic training: no
Basic training in the minority language: no

No formal law school training is required to be a justice of the peace. In fact, no basic training exists in either official language for this occupation. The education and experience profile of a justice of the peace is therefore quite varied, and justices of the peace acquire the ability to function in both official languages in numerous ways. As Table 7 shows, they have some ability to communicate in both official languages, but this ability is systematically and substantially less than that of judges. Given the important role that justices of the peace play in criminal law, especially at the first court appearance of an accused, this language profile may prove problematic.

It is not expected that a basic training program will be introduced for justices of the peace. During the study consultations, no such request was made. Justices of the peace will therefore have to receive their training, especially their language training, through continuing education.

Occupation: Clerks
Basic training: yes
Basic training in the minority language: no

Like the justice of the peace, the position of clerk generally requires no particular legal training, with one exception: New Brunswick requires its clerks to be lawyers. Durham College, in Ontario, also offers training specifically for clerks (Legal Administration/Law Clerk Program),[22] but it is offered in English only and includes no training in bilingual legal vocabulary.

The level of education of clerks is rising. As Figure 4 shows, 40% of clerks ages 24 to 34 have a university-level certificate or diploma, nearly twice the proportion of clerks ages 55 to 64.[23] In most regions of the country, a person can be hired to a clerk position based on their experience. Whether or not a clerk is able to function in both official languages will therefore depend on numerous possible scenarios related to their education and work experience.

Figure 4: Percentage of clerks working in provincial and territorial governments who have a certificate or diploma, by level of education and age group

Percentage of clerks working in provincial and territorial governments who have a certificate or diploma, by level of education and age group

(Source: Statistics Canada, Census 2006)


Occupation: Court reporter, registry officer
Basic training: yes
Basic training in the minority language: no

The positions of court reporter and registry officer do not require any particular basic training. Here too, we would point out that Durham College, in Ontario, offers basic training specifically for court reporters and registry officers (Court Support Services Program) in English. An individual's work experience tends to be the hiring criterion for these positions. Often, registry officers and court reporters have worked first in a law firm as a legal assistant.

We would point out that court reporters assigned to the courtroom no longer need to be proficient in stenography since courtroom proceedings are now recorded and digitized. Many jurisdictions rely on private companies to transcribe the tapes when this is necessary.

Occupation: Bailiff
Basic training: yes
Basic training in the minority language: yes
      x x x              

The position of bailiff requires no particular basic training. As Figure 5 shows, just over half of the bailiffs working for a provincial or territorial government have a certificate or diploma from a high school or vocational school. It can be seen that 45% of bailiffs have a post-secondary certificate or diploma.

Figure 5: Percentage of bailiffs working in provincial and territorial governments who have a certificate or diploma, by level of education

Percentage of bailiffs working in provincial and territorial governments who have a certificate or diploma, by level of education

(Source: Statistics Canada, Census 2006)


There are a number of programs in correctional studies that may provide relevant training in bailiff duties. As for programs offered in the minority language, Collège communautaire du Nouveau-Brunswick (Dieppe), Cité collégiale (Ottawa) and Collège Boréal (Sudbury) offer programs in correctional studies in French, and John Abbott College (Montreal) offers one in English.

Occupation: Interpreter, translator
Basic training: yes
Basic training in the minority language: yes (translation)
      x   x x            

There are a number of training programs for interpreters and translators in Canada, including several geared specifically to working in a courtroom setting:

For interpreters, general training is available at the college level, and more specialized training courses are offered by Canadian associations of translators and interpreters. We would point out that the Canadian Translators, terminologists and Interpreters Council offers certification in court interpretation.[24]

The availability of interpreters who are comfortable working in a courtroom setting is a problem in some regions of the country. Many stakeholders consulted during this study stated that the lack of technical knowledge on the part of some of their interpreters posed major problems that could adversely affect the smooth conduct of a hearing. The lack of skilled interpreters also forces some jurisdictions to bring in interpreters from other parts of the country, adding to costs.

Occupation: Probation officer
Basic training: yes
Basic training in the minority language: yes
        x x              

Of the academic paths that may lead to the occupation of probation officer, one of the most common is criminology studies. A number of universities and colleges offer study programs in criminology. The following can be found in minority language communities:

Occupation: Legal secretary, law clerk
Basic training: yes
Basic training in the minority language: yes

At present, secretaries and law clerks (a category that includes, but is not limited to, paralegals) work essentially in the private sector, usually at law firms and notary offices. In fact, 90% of legal secretaries and 85% of law clerks are employed in the private sector.[25]

The position of paralegal is going through major changes. In Ontario, the Law Society of Upper Canada has regulated the paralegal profession since 2004, and it is therefore formally recognized and certified. Seven colleges in Ontario offer training for paralegals that is certified by the Law Society of Upper Canada.[26] None of these programs, however, are offered in French. At the time of writing this report, no other province or territory has regulated the paralegal profession.

There is basic training in French for the position of legal assistant. Both Cité collégiale and Collège Boréal in Ontario offer a program for legal assistants that teaches legal vocabulary in both official languages.

4.5 On-the-job training

Since the number of curricula that offer training in both official languages is limited, on-the-job training becomes of significant importance. For some stakeholders, on-the-job training, be it formal or informal, is the only means available to them to develop a sufficient command of the legal discourse of their particular profession in both official languages.

There are a number of models of formal on-the-job training. For the purposes of this study, we have classified them according to whether they are offered by professional associations, by government bodies or by jurilinguistic centres.

Training offered by professional associations

By virtue of their mandate, professional associations systematically offer their members professional training. In the area of justice, there is a wide range of professional associations that cover most of the relevant occupations. The main issue for this study is therefore whether these associations systematically offer training to develop bilingual proficiency in legal vocabulary. From the information we gathered, we identified the following initiatives:

Commissioner for Federal Judicial Affairs:
Among the initiatives of the Office of the Commissioner for Federal Judicial Affairs is the provision of language training to develop proficiency in both official languages. The Office offers a French continuing education program to francophone judges working outside Quebec. It also offers French immersion sessions for anglophone judges (beginner, intermediate and advanced levels). These initiatives are made available mainly to federal judges, but are also open to provincial and territorial judges.
Provincial and territorial law societies:
The information gathered for this study indicates that basically law societies do not systematically offer language training. They may occasionally offer some training courses in French and English, but these are not designed specifically to develop a bilingual proficiency in legal vocabulary.
Associations of French-speaking jurists:
The associations of French-speaking jurists offer some language refresher training. There are seven associations of French-speaking jurists in Canada, all in common law provinces. While their language training activities vary somewhat depending on the region, they often take the form of one-or two-day training sessions on specific subjects.

Training offered by government bodies

The most significant official language training initiative of a government body is unquestionably the French Language Institute for Professional Development, in Ontario. The Ontario Ministry of the Attorney General runs this institute, established in 2005.

Its main clientele consists of justice professionals in Ontario, including Crown prosecutors, police officers and court employees (clerks, officers, etc.). The Institute usually reserves a minimum of five places in every week-long training session for Crown prosecutors from other regions of the country. A number of federal Crown prosecutors have also participated in its activities.

Participation in the activities of the Institute is conditional on the result of a language evaluation: only individuals with “intermediate+” proficiency in spoken French are eligible to participate. This level of French proficiency is considered necessary to benefit from the training activities.

The training extends over a period of five consecutive days. The format includes presentations (on legislation and case law, for example), practical workshops (on the use of Antidote software, for example) and mock trials (conditional release hearing, preliminary hearing or guilty plea).

Training provided by jurilinguistic centres

There are four jurilinguistic centres in Canada:

These centres offer specialized training workshops on bilingual legal terminology. The centre most active in this area is Institut Joseph-Dubuc. Its workshops are given on request, are tailored to the clientele and usually take place over one or two days. Lawyers were the clientele initially targeted by the institute, although participants have also included individuals holding other positions within the judicial system. At the time of writing this report, the institute was in the process of developing training activities designed specifically for support functions in the judicial system, including clerks.

The supply does not meet the demand

The quality of the on-the-job training provided has largely been established. During the study consultations, the stakeholders consulted were unanimous in emphasizing the quality of these training activities. There is no question that stakeholders are learning new skills in their second language.

However, the number of available training activities clearly does not meet the demand. It is evident that only a fraction of justice stakeholders currently have access to the training activities on offer. And that access is generally limited, in that these stakeholders are able to participate in only a few activities, often months or even years apart. This poses a problem. Not only are some stakeholders left to fend for themselves, but even those who do benefit from the available activities risk losing the skills they have learned because there are no opportunities to use and strengthen them.

4.6 Access to tools and reference material

Tools and reference material for the bilingual practice of law do exist but are limited, and stakeholders still have a great need for them.

Three of the country's jurilinguistic centres have developed reference material, including:

While these are important tools for all justice stakeholders, they are used primarily by legal translators and writers. The other stakeholders (members of the judiciary, lawyers and clerks) may consult them as needed, but do not use them regularly.

For some stakeholders, the most pressing need is for model instruments. In the normal course of a criminal trial, certain documents on specific subjects, such as the release on bail, the record of the proceeding, Court orders and the judge's decisions, are used. Since the focus of this study is criminal law, which is national in scope, the content of these documents is relatively consistent. However, during the study consultations, a number of stakeholders stressed the lack of readily available model instruments.

Stakeholders who use their second official language only occasionally also need tools to maintain their skills or improve knowledge of their second language. Clearly, access to on-line tools alone, for example, is not a solution to the challenge these stakeholders face. But such tools can be used after more intensive training for self-directed learning or to maintain skills.

It seems reasonable to conclude that the development of tools applicable to the field of criminal law in both official languages is still in the early stages. The study consultations clearly suggest that in many respects, there is still much to do in this regard.