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

Executive Summary

This report presents the findings of the Canada-wide analysis of official language training needs in the area of justice undertaken by the Department of Justice Canada in September 2008. The analysis follows directly from the five-year, $20-million investment announced by the federal government in the context of the Roadmap for Canada's Linguistic Duality 2008-2013. The purpose of this investment is to provide training for individuals currently employed in the justice system, and to train and recruit young bilingual Canadians interested in a career in the justice system. The particular focus of this study is criminal law.

The methodology of this study consists of document and literature reviews, an analysis of socioprofessional data, interviews with training and justice stakeholders in every province and territory, four case studies and a panel of experts.

Obligations to offer services in both official languages

As jurisdiction for enacting legislation governing criminal procedure rests with the Parliament of Canada, it is Parliament that grants all Canadians the right to use English or French in proceedings related to a criminal offence. Under Part XVII of the Criminal Code (sections 530 to 533.1), the provinces and territories must establish criminal courts that are institutionally bilingual and reflect true equality of English and French. Moreover, a dereliction of the duty enshrined in the Criminal Code is to be deemed a substantial wrong, not a minor irregularity.

Training needs

This needs study was conducted in a context in which a significant proportion of justice stakeholders have a basic ability to communicate in both official languages. In all jurisdictions except Quebec, no less than 29% of judges and 25% of lawyers state that they are able to conduct a conversation in both official languages. In Quebec, no fewer than 9 out of 10 judges and more than 8 out of 10 lawyers state that they are able to converse in both official languages. The level of ability to communicate in both official languages is not as high, however, in the support functions, such as clerks and bailiffs.

The ability to conduct a conversation in both official languages does not necessarily indicate a command of the legal vocabulary needed to function in an institutionally bilingual court. Rather, the ability to conduct a conversation in both official languages is the first step towards achieving such an outcome. The second step is for justice stakeholders to become proficient in the legal vocabulary of their area of employment. The third and final step is the appropriation of legal discourse in both official languages, that is, the ability to properly apply the acquired legal vocabulary.

The basic training provided in preparation for the various justice occupations only partially increases the ability of courts to operate in a way that is institutionally bilingual. As very few programs of study offer instruction in both official languages, on-the-job training is extremely important. 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. To date, professional associations, some government agencies and Canada's jurilinguistic centres offer some on-the-job training. The current supply of training activities does not, however, meet the demand. Bilingual tools and reference material on legal practice do exist but in limited supply, and stakeholders are still in great need of such resources.

Priority strategies

The proposed actions presented in this report are based on four guiding principles. First, it is important to recognize that the federal investment alone cannot meet all the training needs; this investment must therefore be well targeted if it is to help achieve the desired outcomes. Second, it must be recognized that official language training activities in the area of justice can bring about a systemic correction to meet an intermittent need in the minority official language. Third, the federal government's action should systematically target stakeholders who are already functional in both official languages. Finally, it seems essential to link intensive learning activities and regular learning activities since, for the individual, the success of one largely determines the success of the other.

Legal training

One area deserving particular attention is the legal training that is currently available. Law schools could be asked to play a much more active role in training law students in the application of both official languages to the practice of law. This expanded role would also more truly reflect the language profile of the young Canadians who enrol in law schools, a growing number of whom are already able to communicate in both official languages.

Proposed strategy 1: The country's law schools should consider offering courses specifically in the practice of law in both official languages. Partnerships between law schools would seem entirely appropriate in the circumstances.

Legal translators and court interpreters

There seem to be no major problems in accessing quality legal translation services. Several jurisdictions in the country rely on private companies for the translation of legal documents, while others employ full-time translators. Court interpreters are an entirely different matter. The difficulties that some Canadian jurisdictions have accessing qualified interpreters are significant, if not disturbing. Access to qualified interpreters in some regions is uncertain, and the ability of a general interpreter (no specialization in law) to function effectively during a trial is questionable. Since interpreters are systematically used in bilingual proceedings, this problem merits the attention of stakeholders.

Proposed strategy 2: Access to qualified court interpreters in every region of the country should be the focus of a joint strategy of justice stakeholders (especially court administrators) and interpreters associations, including the Canadian Translators, Terminologists and Interpreters Council.

The issue of support functions

A number of court support functions require no particular basic training. It is largely up to the individual employer to determine the qualifications needed for the positions, which include clerks, court reporters and registry officers. However, programs that specifically target these occupations are beginning to emerge; at present, none are offered in French.

Given the pivotal role of these various occupations, it is important to address this issue, while recognizing that the main objective of the initiative is to train individuals to be able to work in both official languages. While the establishment of programs in the minority language may be one avenue worth exploring, it is not the only one open to consideration. The inclusion of modules on bilingual court proceedings within existing majority language programs could also be considered.

Proposed strategy 3: It would be worthwhile including modules specifically on bilingual court proceedings in the training programs for clerks, court reporters and registry officers.

Bilingual instruction for legal assistants

Legal assistants are, in some respects, a special class of support staff, since in Quebec they are employed predominantly in law firms and notary offices. Their role, which is to prepare various documents and maintain regular contact with clients, is a vital one. Their capacity to work in both official languages can determine the ability of the lawyer or notary who employs them to take on bilingual cases.

The training programs for legal assistants currently offered at Cité collégiale and Collège Boréal are a model in this regard. Although instruction is in French, both programs are designed to give students a bilingual command of legal vocabulary. It would be well worth expanding this model.

Proposed strategy 4: Institutions that offer training for legal assistants would do well to work in partnership with each other and directly with Cité collégiale and Collège Boréal to expand student access to training designed specifically to give them a bilingual command of legal vocabulary.

Bailiffs and probation officers

Bailiffs and probation officers currently have access to training programs, but these programs are not qualification prerequisites unless the employer makes them a condition of hiring. In the case of probation officers in particular, they consist mainly of university courses in criminology, which are available in every region of Canada.

As in the case of lawyers, bailiffs and probation officers have access to programs in either English or French. Much of the problem lies in the fact that, in both instances, these programs do not necessarily give students a better bilingual command of legal vocabulary. For example, many probation officers have difficulty preparing a pre-sentence report in their second language.

Proposed strategy 5: Criminology programs should consider offering courses specifically on professional practice in both official languages. The partnering of various universities would also avoid duplication of effort in this area.

For on-the-job training, intensive learning activities are essential. Two such activities seem especially promising: applied training, and exchange programs.

Intensive applied training

Intensive applied training is probably one of the most important strategies for increasing stakeholders' bilingual proficiency in legal vocabulary. The success of this type of training lies in its ability to offer modules tailored to each category of stakeholder while also lending itself to the recreation of scenarios involving the interaction of all stakeholders. This training, lasting several days, can combine technical training sessions tailored to each group (lawyers, clerks, registry officers, etc.) with mock trials in which the participants play their respective roles.

Obviously, the problem for some stakeholders is simply lack of access to such training. The time has come to broaden this access.

Proposed strategy 6: The model of Ontario's French Language Institute for Professional Development should be extended to make it accessible across Canada. it seems imperative to adapt the modules to the needs of both lawyers and support staff, either by broadening the terms of reference of the current Institute in Ontario, or by replicating the model in other regions.

Exchanges

While Canada has a long tradition of exchanges in education and on-the-job training, the application of this model to the field of justice has so far been limited. Federal judges are virtually the only ones who have used this model regularly to improve their bilingual proficiency in legal vocabulary. It seems important at this time to offer such a program to other stakeholders.

Proposed strategy 7: Key stakeholders in the area of criminal law would benefit from exchanges allowing them to improve their bilingual command of criminal law vocabulary.

The implementation of such initiatives would undoubtedly require the partnering of a number of stakeholders. An entity should therefore be created that would be given responsibility for managing the exchanges (taking applications, assigning exchanges, preparing activity reports, etc.). The provincial and territorial governments should also be directly involved in managing such a program. The costs of exchange activities should be clearly defined. The federal investment could thus support the coordination and organization of exchanges, but participants would continue to be paid by their respective employer.

Again with regard to on-the-job training, regular activities play an important role by enabling stakeholders to maintain and improve their bilingual proficiency in legal vocabulary.

Targeted training sessions

Targeted training sessions, lasting from half a day to two days, have proven effective but their availability is limited. Broader access to such training would therefore seem to be a priority.

Proposed strategy 8: The various relevant stakeholders should develop a joint strategy for broadening access to targeted training sessions.

A number of stakeholders have been offering this type of training for some years. It is therefore obvious that the supply of such workshops does not meet the demand. In particular, there is a need for more trainers to meet this demand. However, the recruitment of qualified trainers poses a problem that needs to be addressed.

Proposed strategy 9: The recruitment and training of qualified trainers to teach targeted sessions should receive special attention.

Like intensive training activities, targeted training sessions should cover court support functions. Traditionally, these sessions have targeted prosecutors and lawyers in private practice. While these groups remain a target clientele, it is equally important to provide training in bilingual legal vocabulary to clerks, probation officers, bailiffs and legal assistants, to mention only the main support functions.

The training sessions currently offered make limited use of new information technologies. The integration of new information technologies could prove helpful, even essential, to expanding this type of training.

Proposed strategy 10: Training stakeholders should consider increasing the IT content of their targeted training sessions.

Learning tools

Tools for learning bilingual legal vocabulary are virtually non-existent. At present, justice stakeholders have access to a few bilingual reference tools on legal vocabulary. While these tools have an important role to play, they are not learning tools in the pedagogical sense.

Proposed strategy 11: Training stakeholders should consider developing learning tools that could be used independently of formal training sessions.

The distinctive feature of the tools contemplated here is that they should be useable independently of any structured training. In other words, the goal would be to develop tools that justice stakeholders could continually consult to improve their bilingual legal vocabulary.

The hiring criteria of certain positions

The hiring process is especially important for ensuring that new hirees are at least functional in both official languages. Once hired, these employees can, if necessary, participate in training activities to improve their command of legal vocabulary in both official languages. The language criterion is increasingly used in recruiting new stakeholders. Even for positions not formally designated as bilingual, it seems desirable to target individuals with at least a functional knowledge of both official languages.

The role of promoting services offered in both official languages

Along with training activities, stakeholders should continue activities for promoting access to justice in both official languages. Some organizations, such as the associations of French-speaking jurists, have introduced promotional activities in recent years. It would seem desirable to expand the range of stakeholders active in this area to involve certain groups, such as the judiciary, more directly. If persons appearing before the courts are still reluctant to ask to be served in their language, it is primarily because they fear retaliation from the justice system on the grounds that such a request is bothersome and unreasonable coming from someone who is proficient in both official languages. This study found, on the contrary, that there is a desire at the highest levels of the judicial system, in every region of the country, to give full effect to the official language provisions of the Criminal Code. In fact, it is necessary to avoid the pitfall of stepping up training activities and thereby increasing the capacity to operate in both official languages, without dispelling this view on the part of some persons appearing before the courts that proceeding in the minority language is a “problem”. The judiciary could therefore play a more active role in informing citizens of their language rights at law, without compromising their judicial independence. For example, if the chief judge of a provincial court were to publicly encourage the parties to a proceeding to assert their language rights, this could have a significant impact.

The management structure

The five-year, $20-million federal training investment should have the proper administrative oversight. It therefore seems desirable for the Department to establish a training advisory committee with the principal mandate of validating and guiding the Department's training activities. The role of the advisory committee would be to assist existing committees in managing the Access to Justice in Both Official Languages Support Fund. The advisory committee should be composed of a few individuals with recognized training expertise and applied knowledge of the institutional network in this area.

Still regarding management, the fund allocation criteria should favour partnerships between various stakeholder groups and between groups working in minority language communities and those working in majority language communities. In many ways, bilingualism is the issue, and it is therefore important for all stakeholders to work closely with one another to exchange practices, share expertise and, above all, avoid duplication of effort.