A Study on Legal Aid and Official Languages in Canada

2. The linguistic dimensions of legal aid

The linguistic dimensions of legal aid services relate to the principles of natural justice and, in the case of the two official languages, a general commitment to support official language minorities and promote the equal status of English and French. This section briefly reviews these contextual elements.

2.1 Legislative context

2.1.1 Canadian Charter of Rights and Freedoms

The right to counsel upon arrest and detention often represents the first contact of an accused with legal aid services and requires close collaboration of police departments.

A fair trial requires that the accused be able to understand the language of the proceedings. Interpretive services must be available for all languages.

English and French have equality of status before any court established by Parliament.

The Charter establishes two legal rights that are particularly relevant for this study. Section 10 states:

"Everyone has the right on arrest or detention (…)

b) to retain and instruct counsel without delay and to be informed of that right. "

The Supreme Court of Canada has stated that the purpose of the right to counsel is to allow the detainee not only to be informed of his rights and obligations under the law but, equally if not more important, to obtain advice as to how to exercise those rights. [4] The latter point includes an obligation to inform an accused of the availability of legal aid services. In practical terms, this means that the very first contacts with legal aid services may require the close collaboration of police authorities.

On the issue of language, section 14 of the Charter states:

"A party or witness in any proceedings who does not understand or speak the language in which the proceedings are conducted or who is deaf has the right to the assistance of an interpreter."

The Supreme Court of Canada has confirmed that section 14 reflects the requirements of natural justice and, therefore, all languages, regardless of their official status, must be accommodated to the extent required to ensure a fair trial. The Court has noted that the right to a fair trial is universal and cannot be greater for members of official language communities than for persons speaking other languages."[5]

Section 16(1) establishes that English and French are the official languages of Canada, while section 19(1) states 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 Parliament.

2.1.2 The Criminal Code

Section 530 of the Criminal Code creates an absolute right to a trial in either official language regardless of the person's ability to speak and understand the official language of the majority.

Section 530 of the Criminal Code deals specifically with the issue of languages in the context of criminal proceedings. According to the Supreme Court of Canada, this provision

"creates an absolute right of the accused to equal access to designated courts in the official language that he or she considers to be his or her own. The courts called upon to deal with criminal matters are therefore required to be institutionally bilingual in order to provide for the equal use of the two official languages of Canada." [6]

The Supreme Court of Canada emphasizes the requirement of maintaining a proper institutional infrastructure:

"In the context of institutional bilingualism, an application for service in the language of the official minority language group must not be treated as though there was one primary official language and a duty to accommodate with regard to the use of the other official language. The governing principle is that of the equality of both official languages."[7]

The Court adds that the ability of a person to speak the language of the majority is irrelevant because the choice of language is not meant to support the legal right to a fair trial, but to assist the accused in gaining equal access to a public service that is responsive to his linguistic and cultural identity."[8]

2.1.3 Impact of linguistic rights on legal aid

Legal aid plans are governed by provincial legislation; therefore, federal provisions can only create an incentive to offer services in both official languages.

Legal aid services fall under provincial jurisdiction and, as such, are not covered by federal provisions such as the Official Languages Act[9]. However, the complimentary functions of the federal and provincial governments are illustrated in the area of criminal law. While the provinces have the constitutional responsibility for the administration of justice - including the constitution, maintenance, and organization of criminal courts - the federal government has jurisdiction over Criminal Law and procedure in criminal matters[10]. It is under this latter area of federal jurisdiction that the federal government has adopted section 530 of the Criminal Code, establishing a right to have criminal proceedings in either one of the two official languages.

Thus, even when linguistic provisions are not directed specifically toward legal aid services, they nonetheless could have an impact on how services will be structured. If, for instance, a legal aid client elects to have his or her criminal trial in the official language of the minority, it creates an incentive for legal aid to provide counsel that speaks the language of the minority[11]. Along the same logic, the work of governments toward achieving institutional bilingualism in criminal courts, as required under section 530 of the Criminal Code, may motivate legal aid plans to consider, at a minimum, the provision of duty counsel services in both official languages.

2.2 Delivering services in the official language of the minority

Legal aid plans are governed by provincial legislation; therefore, federal provisions can only create an incentive to offer services in both official languages.

In assessing policies and practices as they relate to official languages, one must consider a number of service delivery principles. These principles constitute what is generally recognized in Canada as good practice in the field of official languages service delivery.[12]

  • Active offer of service

    The active offer of service may have a determining impact on clients from official language minority groups. According to a recent study, one cannot underestimate the importance of and need for an active offer in both official languages when service is provided. Needless to say, an office that greets its clients bilingually will increase demand for service in the language of the minority, whose members will feel at ease in continuing in their language.[13]

    Typically, an active offer of service must include an audible greeting in the two official languages, both on the telephone and in person, to inform the public that service is available in English and French. [14]

  • Availability and linguistic quality

    Innovative service delivery approaches, new technologies, and increasing expectations that services are to be client-focused create particular linguistic challenges. The assessment of service availability in the two official languages must consider the various delivery methods used and determine the linguistic quality of these different services.

  • Institutional capacity

    Language is a consideration that relates to the entire service delivery process (from initial contact with the client to the completion of service). To assess the overall institutional capacity of an organization to offer services in the two

    official languages requires an understanding of the recruitment of staff, and of the types of training and other professional development opportunities offered to employees.

2.3 Legal aid services

The relationship between lawyer and client is grounded on effective communication. A client makes decisions based on understanding of the law and legal proceedings.

The relationship between lawyer and client is grounded on effective communication. A client makes decisions based on understanding of the law and legal proceedings.

In an adversarial system of justice, legal aid ensures that defendants are not disadvantaged by having to face an experienced prosecutor without representation.

In an adversarial justice system, communication between lawyer and client is paramount. Due to the complex nature of the law and of legal proceedings, a lawyer is required to act as an intermediary between the justice system and the client and to ensure that the client has an adequate understanding of all available options. Furthermore, a lawyer must act as an advocate of the client and represent his or her interests. As stated in the Canadian Bar Association's Code of Professional Conduct (1991): When acting as an advocate, the lawyer, while treating the tribunal with courtesy and respect, must represent the client resolutely and honourably within the limits of the law.[15]

Throughout all levels of service provided by legal aid (Brydges, duty counsel, court and trial representation), the lawyer must interpret the law and ensure that the client understands the consequences of any decision he or she makes. The ability of an accused person to instruct counsel rests on his or her comprehension of the issues at hand.

There can be several barriers to effective client-attorney communication. Among these are the literacy level and language skills of the client. The Canadian Bar Association has identified literacy as an important and common barrier to effective communication between lawyer and client. Even a person with a relatively high level of education may have difficulty understanding the law. A number of services initiated by the British Columbia Branch of the Canadian Bar Association hope to assist lawyers in improving communications and facilitating the development of a connection with clients.[16]

In establishing literacy as an important consideration in effective communication between lawyer and client, the Canadian Bar Association draws particular attention to clients whose first language is not English. These individuals experience increased difficulties in understanding written documentation.[17] The ability of a lawyer to communicate verbally with the client thus becomes a primary concern. Furthermore, the literature demonstrates that a person may have the necessary skills to communicate in a language at a conversational level, yet not be sufficiently fluent to comprehend the complex elements of the law. [18]

The importance of legal aid services in an adversarial system of justice rests upon the necessity to balance the expertise of the Crown prosecutor and that of the defendant.[19] Without adequate representation, a client's position within the justice system is compromised. As such, the attainment of"equality before the law" is the main impetus behind legal aid policy and includes the overall goal of working toward a "just society." In principle, regardless of one's social and economic standing in society, access to justice and equal representation is available.[20] Legal aid ensures protection before the law for those who cannot afford legal representation.

2.3.1 Brydges representation

Brydges representation refers to free legal advice immediately upon arrest or detention by police.

Decisions made by an accused upon arrest and detention can have significant impacts on the case. Effective communication between a lawyer and client is imperative.

The immediacy of service required by Brydges representation imposes particular challenges on legal aid plans.

As previously mentioned, the decision of the Supreme Court of Canada in R. v. Brydges established the right of an accused to access free and immediate counsel upon arrest and detention by the police. In the event that a detainee cannot afford his or her own attorney, legal aid must provide one. This means that legal representation must be available 24 hours a day, seven days a week.

In 1990, following this landmark case, all legal aid plans across the country instituted the necessary mechanisms to respond to the requirements of this decision. Although the methods of delivering this particular service may vary across Canadian jurisdictions, the basis remains the same: all detainees can contact a lawyer and obtain free legal advice "on the spot." In general, the advice is provided over the phone, and it is only in unusual circumstances or where the accused is facing serious charges that the lawyer may be required to attend to the accused in person.

The significance of Brydges representation lies in the immediacy of the service. As soon as an individual is arrested and detained by police, a number of crucial decisions, with very real impacts on the case, must be made - the decision to provide a statement to the police, the decision of whether or not to provide any information whatsoever, etc. The consequences of being misinformed with regard to these issues can very well jeopardize the person's defence, hence the importance of effective communication at this initial stage of the legal process. A lawyer is capable of advising the accused of his or her rights and thereby protecting the interests of the client. In accordance with the principle of "equality before the law," this decision allows for the "effective balancing of the rights of citizens and the law enforcement interests of the state."[21]

The immediate nature ofBrydges representation renders the provision of this service in the official language of the minority particularly challenging. Whereas legal aid can respond to a general request for a lawyer who speaks the official language of the minority on an ad hoc basis (by certificate in the private bar in the case of a judicare delivery model, or where a staff lawyer with the required linguistic capacity is not available), this type of response is more challenging in the case of Brydges representation.

The obligation imposed by the Supreme Court of Canada on police officers was subsequently interpreted in various ways by the lower courts. The debate that ensued in Ontario involved the necessity for police officers to make specific reference to the toll-free number for accessing free and immediate legal advice.[22] One of the arguments advanced in favour of this requirement was that the justice system and its various components are intimidating to most individuals. If police officers are not required to inform the accused of this right, as well as to provide the means for obtaining the free and immediate advice, many detainees will not request a lawyer. Most wish to appear cooperative and non-confrontational, and, therefore, may often unknowingly waive their basic rights.[23] Considering the vulnerable position in which members of linguistic minorities in need of such services may find themselves, a similar argument may be made when debating whether it is mandatory for police to offer Brydges representation in both official languages.

2.3.2 Duty counsel

Duty counsel services are available to those individuals who do not have representation at their first appearance.

Duty counsel is considered one of the most important services provided by legal aid.

Lawyers providing duty counsel services must respond to an exceptionally high volume of cases. The capacity to communicate effectively is crucial.

Duty counsel is a service provided by legal aid in which a lawyer is available to represent an accused at his or her first appearance in court. In most jurisdictions, duty counsel services are available to any unrepresented accused regardless of financial circumstances. However, some jurisdictions' legal aid plans provide duty counsel services only to those individuals who are in custody, whereas others provide this service to any individual who is making a first appearance in court, regardless of whether he or she is in custody. According to the service delivery model adopted by a province, lawyers acting as duty counsel may be either Legal Aid staff lawyers or members of the private bar.

The legal aid literature and our consultations within the various jurisdictions indicate that duty counsel may very well represent the most important aspect of legal aid services provided. Indeed, the first appearance has lasting effects on a person's right to life, liberty, and security.

  • At the first hearing, the accused person pleads guilty or not guilty to the charges against him or her. If the accused pleads guilty, he or she may request to be released until the time of sentencing. If the accused pleads not guilty, he or she may request to be released until the time of trial. If a judge deems an accused unsuitable for release, he or she may remain in prison for a period of anywhere from a few days to six months, or more. Pre-trial detention can have grave consequences on the outcome of the trial. According to a number of studies conducted in Canada, the United Kingdom, and the United States, individuals who are detained pending trial are more likely to be found guilty and more likely to be sentenced to imprisonment than individuals who obtain a judicial interim release. [24] A number of explanations for these findings have been advanced:
    • Detention before trial is generally an order of last resort; therefore, a detained accused will be negatively labelled. Judges and other criminal justice professionals may perceive the accused, for whom bail has been denied, in a negative light.
    • An accused person who is detained in jail has a more difficult time obtaining a lawyer, communicating with counsel, and searching for witnesses for a defence. Furthermore, taking the necessary steps to make a good impression on the court, such as obtaining employment, is not possible.
    • The detained accused is under increased pressure to plead guilty because of the possibility of spending weeks or months in jail before trial, particularly if the person is charged with a minor first offence that would normally result in a relatively lenient sentence. Even if an accused is innocent, not wanting to lose income or employment as a result of being in jail is an incentive to plead guilty. [25]
  • The choice of plea requires extensive legal expertise as it largely depends on the existence of a valid defence. The decision must be an informed one because entering the wrong plea can have damaging consequences. Pleading guilty when a valid defence is available leads to an unnecessary criminal record for the accused. A plea of not guilty in the absence of a valid defence can have equally devastating effects:
    • A judge, resenting the unnecessary trial, may deliver a more severe sentence.
    • It is more difficult for the accused to express remorse and regret when witnesses testifying at trial present him or her negatively. This can, in turn, lead to a more severe sentence.
    • The accused may be convicted of a more serious offence when they make an early guilty plea because plea bargaining on the charge is no longer an option.[26]

Duty counsel have no control over the number of unrepresented individuals that may present themselves for a first appearance on any given day. Consequently, they must often deal with an exceptionally high volume of cases, and they are required to work with limited preparation time. Duty counsel will generally meet the accused person on the morning of his or her court appearance to get a brief synopsis of the facts. There is very limited time to offer assistance and advice, and the stakes can be high.

As with Brydges representation, the immediacy of the required service may pose significant barriers to the provision of this legal aid service in the official language of the minority. In addition to the immediate nature of duty counsel, the assistance that is required must be delivered within an extremely restricted time frame. As illustrated above, the magnitude of the consequences that the first appearance may have on the accused highlights the importance of being able to communicate effectively and efficiently with duty counsel.

2.3.3 Trial representation

A lawyer's capacity to speak and understand a client's language improves the effectiveness of representation.

Unlike Brydges representation and duty counsel services, trial representation in the official language of choice does not include the element of immediacy.

The challenge is to locate a lawyer capable of conducting a trial in the official language of the minority.

A person who does not have the financial means to obtain his or her own attorney for trial may be eligible for legal aid representation. Depending on the delivery model adopted by the province, a legal aid client may be assigned a staff lawyer or may choose a lawyer in the private bar who is willing to accept a legal aid certificate.

The value of trial representation, as with other services provided by legal aid, is in the capacity of the lawyer to interpret the law for the accused, represent the interests of the accused, and present the accused with all available options. The complex nature of the law and of legal proceedings can make it difficult for an accused person to adequately present a case, as well as a valid defence, to the court without the assistance of legal counsel. [27] Aside from official language considerations, it is imperative that the lawyer and client are able to communicate. In order for a client to effectively instruct counsel, he or she must have an absolute understanding of the options and of the consequences of any decision made.

An accused person who must go before the court for trial is in a particularly vulnerable situation. The official nature of legal proceedings is very intimidating to an accused. Through the enactment of section 530 of the Criminal Code, Parliament has extended the official status of English and French to criminal proceedings. This enables the accused to proceed in the official language in which he or she is most comfortable. As previously noted in Section 2.1.3, although there is no obligation for legal aid to provide a lawyer who speaks the official language of the client, the right of an individual to proceed before designated courts in his or her own official language creates an incentive for legal aid systems to follow suit.

Unlike Brydges and duty counsel representation, trial representation can be more easily organized on an ad hoc basis. However, there are some key issues to consider when examining the issue of trial representation and official languages:

  • Clients may be unaware of their right to trial in their official language of choice, much less of the availability of Legal Aid lawyers who speak the language of the minority.
  • A lawyer's capacity to conduct a trial in the official language of the minority requires facility in technical and specialized terminology.
  • The capacity of legal aid to provide lawyers capable of representing clients at trial in the official language of the minority depends largely on the availability of lawyers who speak the language, who practise criminal law, and who are willing to accept legal aid certificates or work as staff lawyers.
  • Although a client may not wish to proceed with his or her trial in the official language of the minority, he or she may wish to obtain a lawyer who can communicate well in both languages.

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