A Study on Legal Aid and Official Languages in Canada
Although the fundamental principles of justice do not relate specifically to "official languages," a number of constitutional and legislative provisions have considered them.
Legal aid services across Canada share a common purpose, which is to support greater access to the justice system. From the moment of arrest to full representation in courts, legal aid services are intended to be available for those who cannot afford the cost of counsel. The existence of these legal aid services supports the principles of justice by ensuring a greater level of fairness in the justice system.
The issue of language adds a complex yet fundamental dimension to legal aid. Just as poverty may constitute a barrier to fair access to the justice system, so language may impede full access to justice. As a result, there is an obligation to provide interpreters to any party or witness in any legal proceedings who does not understand or speak the language in which the proceedings are conducted. In the context of the fundamental principles of natural justice, in which every person is equal before the law, no distinctions are made between official languages and other languages.
In Canada, the presence of two official languages adds a series of rights and corresponding obligations in addition to any considerations of natural justice. Constitutional and legislative provisions have addressed the equality of English and French throughout Canada. An example of one of these provisions is section 530 of the Criminal Code, which provides for the right to access criminal courts in either official language.
The ability to obtain legal representation in his or her own official language may affect a person's ability to fully exercise his or her linguistic rights-and, as a potential consequence, any of his or her other legal rights-as they relate to criminal court proceedings. Therefore, the provision of bilingual services by legal aid may represent an important bridge between low-income clients and their access to justice.
Policies and practices across the various legal aid systems in Canada differ substantially. This study explores the experience of these legal aid organizations in providing services in the two official languages.
Since legal aid plans fall under provincial jurisdiction, such federal provisions do not create a strict obligation for legal aid plans to offer services in both official languages. However, this provision and, just as importantly, the interpretation given to it by the Supreme Court of Canada create external pressures on legal aid plans to provide legal aid services in the two official languages.
There are several service delivery principles to consider in the development of policies and practices relating to official languages. Extensive research in the field has led to the general acceptance of the following principles as constituting good practice in the field of official languages service delivery:
- Informing the public that services are available in both official languages, through an active offer of services.
- Ensuring that quality services are available in both official languages throughout the various service delivery methods (e.g., Internet, information line, written material).
- determine, if necessary, the increased levels of service required to meet adequate standards of service as well as the cost of the increased level of service.
- Taking into account issues of recruitment of staff, training, and professional development opportunities for employees in the consideration of the overall capacity of an organization to offer services in the two official languages.
The Department of Justice has identified three specific research objectives in relation to legal aid services and official language groups:
The complex nature of the law and the adversarial system in which the Canadian justice system operates requires effective communication between a lawyer and client at all stages of the process. An individual must be clear on procedures, processes, and the law itself. The ability of a person to instruct counsel rests on his or her comprehension of the issues at hand, thereby making effective communication an essential component of all interactions between legal professionals and clients.
- To identify the policies and practices in effect within legal aid plans to ensure that French or English speakers have access to service in the language of their choice.
- To identify any difficulties that French and English speakers have in accessing legal aid services.
- To determine, if necessary, the increased levels of service required to meet adequate standards of service, and the cost of those increased levels of service.
To assist in addressing these research objectives, the Department developed a series of questions, which are included in Table 1.
|What policies do legal aid plans have in place relating to servicing inquiries and applications, and providing service in the official language of choice?|
|To what aspects of service do the policies apply? (Frontline reception, duty counsel for in-custody and non-custody clients, advice and assistance, representation at trial?)|
|Are there other services (information line, Internet) offered in the official language of choice?|
|To what extent are official language groups unable to access various legal aid services in their language of choice?|
|What steps do they need to take to obtain service in the language of their choice?|
|What are the possible consequences of not providing services in the language of choice?|
|What are the key barriers that may prevent the provision or expansion of legal aid services in the language of choice?|
|Which service areas (e.g., Brydges representation, duty counsel) should be targeted for an expansion of services offered to linguistic minorities?|
|Based on the legal aid delivery model in place (judicare, staff lawyers, or mixed model), what unique challenges exist in order to provide an expansion of legal aid services offered in the language of the minority?|
|What is the cost estimate of implementing new legal aid services in the language of the minority?|
The scope of this study is limited to legal aid services in the ten provinces and does not include the three territories, whose legal aid services are the object of a separate study.While this study predominantly addresses legal aid services related to criminal law, it also includes family and other civil matters.
Table 2 summarizes the methodology adopted to complete this study.
|Literature review ||Prairie Research Associates (PRA) Inc. reviewed documentation describing the legal aid services offered in each province of Canada and documents describing linguistic profiles within each province. In addition, we consulted primary sources such as provincial Legal Aid Acts, provincial linguistic legislation, the Canadian Charter of Rights and Freedoms and the Criminal Code.
PRA consulted jurisprudence and literature pertaining to legal aid services and linguistic rights in Canada. (See bibliography for complete list of documents.)
|Site visits||PRA visited six sites and conducted in-person and telephone interviews. Key informants included legal aid directors and staff, private lawyers, Crown, judiciary, community organizations, court services, and child and family services. Site visits included:
|Key informant interviews||In the four provinces we did not visit, we conducted telephone interviews with legal aid directors and staff, private lawyers, Crown, judiciary, and community organizations:
|Interviews with legal aid clients||PRA had originally planned to conduct interviews with legal aid clients during the site visits. This method did not prove feasible as we encountered difficulties recruiting clients for the interviews. As an alternative approach, we conducted a random telephone survey within each province visited (Nova Scotia, New Brunswick, Québec , Ontario, Manitoba, Alberta). Those areas with an important concentration of people who speak the official language of the minority were targeted.
A total 125 surveys were completed between April 18, 2002 and April 23, 2002; 24 in Québec and 101 in the remaining five provinces.
Our report has five sections, including the introduction (Section 1). Section 2 introduces a number of linguistic considerations that set the broader context in which legal aid services operate. We briefly review the relevant legislative provisions, explore some of the characteristics of service delivery in the language of the minority, and discuss some linguistic dimensions specific to legal aid services. Section 3 presents the findings from each province, and Section 4 summarizes the findings from the client and potential client telephone survey. Section 5 provides a summary of all findings including key issues and considerations.
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