A Study on Legal Aid and Official Languages in Canada

3. Findings from the jurisdictions (continued)

3.5 Quebec

The 1996 Census reported English is the first language of approximately 660,000 individuals in Québec, [41] which represents 9.4 percent of the Québec population. According to the Census, 72.5 percent of all anglophones in Québec reside in Montréal, where they represent 14.5 percent of the total population. More than three million individuals residing in Québec, however, report that they speak English; English is a second language for most.

3.5.1 Services

The first legal aid services emerged in Québec in the early 1950s as an initiative of the Bar Section of Québec City. During the following years, the Québec government and the Bar of the Province of Québec signed agreements relating to the provision of legal aid services. In 1972, the Québec Legislature passed the Legal Aid Act[42], which in turn, established the Legal Services Commission. [43]

The Commission operates at arm's length from government. It has the authority to establish legal aid centres and may make regulations addressing a range of issues such as the information required from applicants, the forms to be used for applications, and other matters related to the implementation of the Act. Currently, 11 regional and two local centres oversee the delivery of services in 128 Legal Aid offices (25 of which are open part-time). Each regional and local centre is governed by its own Board of Directors, whose members are nominated by the Commission.

Table 9 summarizes the key services currently offered by the Commission.

Table 9: Legal aid services in Québec
Services Description
Representation at trial The Commission operates a mixed judicare-staff model. Clients have a right to be represented by the private lawyer of their choice. Otherwise, they are represented by staff lawyers. The current caseload is equally divided between staff and private lawyers. [44] Legal aid is provided for a range of civil and criminal cases, including criminal charges involving an indictable offence, family cases, youth protection, young offenders, and income security matters.
Duty counsel Staff lawyers provide duty counsel representation at all criminal, administrative, and family court locations across the province. Only summary legal assistance is provided through duty counsel representation.
Brydges representation The Commission has centralized this service and established a toll-free number that may be used 24 hours a day, seven days a week. Legal aid staff lawyers provide the service.
Increased legal aid rates Key informants indicated that in order to encourage lawyers to accept legal aid certificates, Legal Aid must increase the rates paid to lawyers. It was suggested that bonuses could be offered as an incentive to bilingual lawyers who take on legal aid cases.

3.5.2 Policies and practices relating to bilingual legal aid services

While not directly applicable to legal aid services, some of the provisions of the Constitution Act, 1867 and the Charter of the French Language constitute relevant contextual information.

The Constitution Act, 1867

Section 133 of the Constitution Act, 1867 states: "[e]ither the English or the French Language (…) may be used by any Person or in any Pleading or Process in or issuing from any Court of Canada established under this Act, and in or from all or any of the Courts of Québec."

Historically, both English and French have been used in the Québec courts. While not creating a direct right to legal aid services in both languages, this provision has created a tradition of offering these services in both languages.

The Charter of the French Language

Section 7 of the Charter of the French Language states: "French is the language of the legislature and the courts in Québec, subject to the following: (…) either French or English may be used by any person in, or in any pleading and process issuing from, any courts in Québec." [45]

Section 9 adds: "[e]very judgment rendered by a court of justice and every decision rendered by a body discharging quasi-judicial functions shall, at the request of one of the parties, be translated into French or English, as the case may be, by the civil administration bound to bear the cost of operating such court or body."

The Commission's policy is to offer all of its services in both French and English. Upon a request made by a client to receive services in English, Legal Aid offices will attempt to provide the service immediately. The Commission noted during our consultation that, in larger centres and in smaller communities with a significant English-speaking population, the Commission is generally in a position to offer its services in English without significant delays. In other communities, it is possible that some delays will occur as a result of having an employee travel from another location. The Commission never uses interpreters to provide its services in English.

Reception and intake services
The Commission's policy is to provide its reception and intake services in both French and English. There is no active offering of English services, except through automated phone services, where clients may press a number to receive information in English. Otherwise, clients must indicate their desire to be served in English. The Commission attempts to have at least one bilingual staff person in each local office. In larger centres and in communities with a significant English-speaking community, employees are expected to be able to communicate in English.
Formal representation
The Commission offers its services in both French and English to clients who elect to be represented by a staff lawyer. In the larger centres and in communities with a significant English-speaking population, staff lawyers are expected to be able to communicate in English. Other Legal Aid offices attempt to have at least one staff lawyer who is bilingual. Clients who elect to be represented by a private lawyer are responsible for finding a lawyer who can speak English.
Duty counsel
The same principles as those described above for "Formal representation" apply to duty counsel services.
Brydges representation
With a centralized service available through a toll-free number, the Commission is in a position to offer Brydges representation in both French and English. Bilingualism is a prerequisite for any lawyer contracted to provide this service.

3.5.3 Capacity to deliver bilingual legal aid services

Our consultations indicate that the Commission's capacity to provide services in English is significant, particularly in Montréal and other communities with large anglophone populations, such as Gatineau, Sherbrooke, Québec City, and the Gaspésie.

  • Brydges representation is provided through a centralized toll-free service, managed by the Commission. According to key informants, this service delivery structure facilitates the delivery of English services since all lawyers who are assigned to provide Brydges representation must be able to communicate in English.
  • Legal aid staff lawyers provide both duty counsel and full representation. Our consultations indicate that, generally, these services are provided by individuals who are able to communicate in English.

Many key informants noted that, for the vast majority of Legal Aid staff lawyers, English is a second language. Few anglophones work as Legal Aid staff lawyers. In this context, the proficiency of staff lawyers to proceed in English varies. While some staff lawyers are bilingual and may proceed entirely in English, including the closing arguments, others will have a more limited capacity and may communicate in English with a client but address the court in French. This observation also applies to private lawyers who do legal aid work.

A number of key informants noted that legal proceedings, particularly criminal ones, are rarely conducted entirely in one language. While the client and his or her lawyer may proceed in English, it is possible that some of the witnesses or the judge may require the services of an interpreter. However, interpreters are never used by the Commission to provide services in English to a client.

Key informants from both legal aid and other groups emphasized that it is practically impossible to provide all services in English, at all Legal Aid offices, without any delay.

As emphasized by some of the key informants, the provision of legal aid services in English is particularly critical for some of the more vulnerable groups, such as seniors or individuals who have recently moved to Québec and have little or no capacity to understand or speak French.

3.5.4 Strategies to improve bilingual legal aid services

Many key informants (from all groups consulted) noted that there is little need to improve access to legal aid services in English. However, since the vast majority of staff Legal Aid lawyers have English as a second language, it may be helpful to offer language training to upgrade or maintain their capacity to communicate in English.

Key informants mentioned that each Legal Aid office has a specific territory assigned to it. Legal aid clients have no choice but to consult the office assigned to the community in which they reside. In larger centres where anglophones constitute a small portion of the population, not all administrative employees and staff lawyers can be expected to be fully bilingual. In these cases, the Commission could designate one office that would offer all of its services in both languages at all times. All community organizations and clients in the surrounding areas could then turn to this office instead of having to enquire about English capacity each time they contact a Legal Aid office.

3.6 Ontario

French is the first language of approximately 500,000 people in Ontario (4.7 percent of the total population). Francophones are located in all parts of Ontario, but most live in Eastern Ontario (Ottawa, Prescott-Russell, and Stormont, Dundas and Glengarry). Significant concentrations of francophones also live in Northern Ontario (150,000 people) and in the Greater Toronto Area (110,000).

From 1951 to 1971, the number of Ontarians with French as a mother tongue increased, but has remained relatively stable since. Although the number of people who can speak French continues to grow - in 1996, more than 1,280,000 people could speak French, representing 12 percent of the total population - there has been a drop in the percentage of people whose mother tongue is French; since 1951 the proportion has decreased from 7.4 percent to 4.7 percent. [46]

The Association des juristes d'expression française de l'Ontario consists of approximately 500 members including lawyers, judges, translators, interpreters, public servants, law professors, and students. The Association aims to preserve and promote the expansion of French within the legal system and ensure the equality of both official languages within the criminal justice system. [47]

3.6.1 Services

Following a review of the Ontario Legal Aid Plan in 1997[48], the Ontario Legislature passed the Legal Aid Services Act, 1998[49]. This legislation created, as of April 1, 1999, a new entity called

Legal Aid Ontario (LAO). The organization operates at arm's length from government, but is accountable for the expenditure of public funds. Table 10 summarizes the services currently offered by LAO.

Table 10: Legal aid services in Ontario
Services Description
Formal representation Approximately 50 regional offices in Ontario deliver legal aid certificates to eligible individuals, primarily in the areas of criminal law, family law, and immigration and refugee matters.[50] Application Assessment Officers determine eligibility and issue a certificate to those who meet the established criteria.

In 2001, LAO issued approximately 32,000 certificates in criminal matters.
Duty counsel Duty counsel provide summary legal advice to individuals who appear in court without representation. In Ontario, duty counsel are assigned to every criminal court of first instance and to youth and family courts.

LAO estimates that duty counsel assisted approximately 600,000 individuals in 2001.[51]
Brydges representation Police authorities have lists of lawyers who may be contacted by arrested individuals wishing to speak to a counsel. LAO pays these lawyers on a per diem basis.

In 2001, approximately 40,000 individuals sought Brydges representation services.
Advice lawyers Once or twice a week for two or three hours, legal aid advice lawyers provide summary legal advice in more than 80 communities throughout Ontario.
Clinic law and student legal aid services societies Seventy community legal clinics across Ontario provide legal assistance in matters related to poverty law areas. In addition, six university-based legal societies provide assistance in a range of legal matters including poverty law, criminal law, or immigration and refugee matters.
Others LAO is testing various service delivery strategies through a number of pilot projects including the establishment of three family law offices and three expanded family duty counsel offices.

LAO maintains a Web site (www.legalaid.on.ca) that provides information on services and eligibility criteria.

3.6.2 Policies and practices relating to bilingual legal aid services

The Courts of Justice Act

The Courts of Justice Act states: "the official languages of the courts of Ontario are English and French."[52] Section 126 of the Act states:

  • "A party to a proceeding who speaks French has the right to require that it be conducted as a bilingual proceeding.
  • The hearing that the party specifies shall be presided over by a judge or officer who speaks English and French."
The French Language Services Act

The French Language Services Act commits the Government of Ontario to ensure that some of its services are provided in French, in accordance with the provisions contained in the Act.

Section 5 of the Act enunciates the right to be served in French:

"A person has the right in accordance with this Act to communicate in French with, and to receive available services in French from, any head or central office of a government agency or institution of the Legislature, and has the same right in respect of any other office of such agency or institution that is located in or serves an area designated in the Schedule.[53]" (Twenty-three areas of Ontario have been designated.)

Section 1 of the Act defines what is included as a "government agency" and confirms that LAO must offer its services in French at its central office in Toronto and at certain designated offices.

Shortly after its establishment in 1999, LAO prepared an implementation plan detailing its strategy to comply with the provisions of the French Language Services Act. In accordance with the Act, LAO intends to offer, to the extent possible, services in French at its provincial office and regional offices located in the 23 designated areas of Ontario. This plan covers issues relating to the designation of current and future positions, the hiring of new staff, training, computer equipment, signage, publications, and other means of communication with the public.

In close collaboration with Area Directors, LAO's Communications and Public Affairs branch coordinates the activities of the organization in relation to French services. The provision of French services extends to all key services offered by LAO.

Reception and intake services

LAO's policy is to ensure that clients who visit a regional office located in a designated area will be served in French by the administrative support staff and the Application Assessment Officer. In smaller offices, LAO ensures that at least one position is designated bilingual. All signage and publications must be in both English and French.

If a request for services in French is made in a non-designated area, one of the offices with bilingual capacity will be contacted. The intake process will be completed over the telephone, and any information will be provided in this manner.

Formal representation

In Ontario, representation in criminal matters is provided through legal aid certificates. Therefore, it is the responsibility of legal aid clients to find lawyers who do legal aid work. In the event that a client requires assistance finding a lawyer, Application Assessment Officers provide a list of private lawyers located in the community who do legal aid work. Regional offices located in designated areas are expected to provide lists that identify the linguistic capacity of these lawyers[54].

In non-designated areas, attempts will be made to find a French-speaking lawyer in that community.

Duty counsel

Duty counsel services are provided through a mix of staff duty counsel and private lawyers who perform duty counsel functions on a per diem basis. LAO ensures that at least one of the staff duty counsel working in a designated area is bilingual. To the extent that bilingual private lawyers can be identified, LAO offers additional duty counsel services in French.

The capacity of Legal Aid Ontario to provide this service in French within non-designated areas largely depends on its ability to find a bilingual lawyer. In the event of a request for French services, attempts will be made to locate a French-speaking lawyer within that community.

Brydges representation

LAO has contracted a private firm to administer a toll-free line that arrested individuals may use to receive immediate legal advice. The contractor maintains a panel of lawyers available to respond to these calls. The contract between LAO and the private firm specifies that services must be offered in both English and French. [55]

Advice lawyer

Regional offices offer advice lawyer services by contracting private lawyers on a per diem basis.

To the extent that bilingual lawyers can be identified, regional offices are expected to offer services in French.

Other services

LAO publishes material available to the clients (including certificates) and the public in both English and French. LAO's Web site is bilingual.

3.6.3 Capacity to deliver bilingual legal aid services

In a province as diverse as Ontario, the capacity to deliver French services varies significantly. Even within the 23 areas designated under the French Language Services Act, linguistic profiles range from small communities that are predominantly francophone (such as Prescott) to large centres such as Toronto or Hamilton, where the francophone population constitutes a relatively small group.

The particular structure of legal aid services in Ontario must also be considered when assessing LAO's capacity to deliver French services. Clients retain the primary responsibility of finding a lawyer who will accept legal aid work. LAO may provide some assistance in that regard, such as providing lists of lawyers who have elected to do legal aid work, but it is ultimately the client who contacts and finds his or her lawyer.

As some of the key informants noted, the portion of the service delivery process over which LAO has more direct control (intake and assessment of eligibility) is not necessarily that which clients consider most important. These key informants noted that the true measure of success in delivering French legal aid services largely rests on the capacity of clients to be represented by counsel who are able to communicate in French. The extent to which this objective is met includes considerations over which LAO has little control, such as the willingness of bilingual lawyers to do legal aid work.

The majority of key informants pointed to challenges that affect LAO's overall capacity to offer services and that, in turn, have a direct impact on the provision of French services.

  • According to key informants, the current tariff structure does not make legal aid work particularly attractive. Bilingual lawyers will typically be offered employment opportunities that are more lucrative. Staff duty counsel (employees of LAO), have salary ranges that are significantly lower than provincial prosecutors. As a result, many duty counsel, particularly the bilingual ones, attempt to move to prosecutor positions.

    Therefore, bilingual lawyers who are new to the profession may decide to do legal aid work, but this will often represent a transition toward other employment. As a result, some communities have no bilingual private lawyers who accept legal aid work.

  • In areas where the pool of bilingual lawyers is greater, key informants have noted that LAO is generally in a position to offer French for the entire range of services (reception, intake, Brydges, duty counsel, and full representation). These key informants noted that while the capacity is greater, it does not mean that services are systematically offered in the two official languages. Clients may still need to ask to be served in French.
  • Some of the key informants noted that police authorities play a central role in providing Brydges representation in French by ensuring that accused are informed of the availability of bilingual service.

The capacity of the entire justice system to function in French also affects LAO's capacity to provide its own services in French. Some key informants pointed to the fact that a trial in French can possibly involve significant delays, particularly in communities such as Toronto where francophones are a relatively small group. When timeliness is essential, as is typically the case in criminal matters, considerations other than language preference may predominate.

In order to improve the capacity of some of its regional offices to deliver services in French, LAO established a process by which regional offices collaborate. If, for whatever reason, an office cannot serve a client in French, another office with bilingual staff may provide the service for the client.

3.6.4 Strategies to improve bilingual legal aid services

Effective strategies to improve French legal aid services will require the efforts of a broad range of stakeholders and may require adjustments to some of the basic structures of legal aid in Ontario. Table 11 summarizes key informants' suggestions for improving bilingual services.

Table 11: Suggestions for improving bilingual legal aid services
Recruitment of bilingual lawyers One of the most often cited suggestions to improve access to French legal aid services is to make this field of work more attractive for bilingual lawyers. A greater willingness on their part to take on legal aid work would have a positive impact on the availability of French-language services in the areas of Brydges representation, duty counsel, and representation at trial.

A number of avenues may be explored to attract bilingual lawyers. The following have been suggested by key informants:
  • The Association des juristes d'expression française de l'Ontario could assist LAO in promoting legal aid work and in identifying bilingual lawyers.
  • LAO could intensify the promotion of employment opportunities in the Ontario legal aid system among students of bilingual law programs in Canada (McGill, University of Ottawa, Université Moncton).
  • The tariff system could be reviewed to better reflect the actual work required to serve dispersed communities (such as francophone communities). Certain costs, such as travel, are not adequately covered in the current structure.
  • More fundamentally, key informants suggested that an increase in the tariffs paid to individuals providing legal aid services (Brydges, duty counsel, or full service) would have a positive impact on the availability of French services.
Training Many key informants noted that the legal terminology in French is difficult to acquire and maintain. LAO has already initiated a training program that allows LAO employees to receive one-on-one, over-the-phone training in French. This course contains 14 one-hour sessions, followed by homework. Providing the lessons over the phone allows greater flexibility in delivery.

This type of training could be extended to a broader range of employees and, possibly, to private lawyers who do legal aid work.
Resources Resources such as legal dictionaries, French computer programs, and one-day refresher workshops could assist Legal Aid staff and private lawyers involved in legal aid to acquire greater French capacity and to maintain their current capacity.
Data collection LAO's current case management system does not systematically collect data on the use of French legal aid services. LAO is currently developing a new system that could collect this information and have it available for planning.

Key informants were very hesitant to provide an estimate of resources needed to improve the delivery of French services. A change to the tariff structure would involve a significant investment. More modest expenditures could address training, the availability of French-language resources for lawyers, and data collection for resource planning. These might enhance LAO's capacity to offer legal aid services in French but would not remove the more systemic barriers that limit the provision of these services.

3.7 Manitoba

According to 1996 Census data, French was the first language of approximately 49,000 people living in Manitoba (4.5 percent of the total population). The francophone population is dispersed across the province, but the largest contingent is in Winnipeg, mostly in Saint Boniface.

Between 1991 and 1996, the francophone population of Manitoba has fallen from 50,775 to 49,100. The proportion of francophones in the population has also decreased from 7 percent to 4.5 percent. As in most of the other provinces, the number of people who can speak French has increased in the past 50 years. Now almost 10 percent of the Manitoba population (104,000) knows French.[56]

There is anAssociation des juristes d'expression française in Manitoba, with approximately 100 members. Its mandate includes the promotion of French-language services throughout the justice system and increasing the public's awareness of the importance of linguistic rights. [57]

3.7.1 Services

Established in 1972, the Legal Aid Services Society of Manitoba (also referred to as Legal Aid Manitoba) is responsible for the administration of legal aid services in the province[58]. It is a corporate entity governed by an independent Board of Directors, whose members are appointed by the provincial government.

Eleven Legal Aid offices are distributed in four geographical areas:

  • Winnipeg: Four offices are at the Portage Avenue location (Administrative and Winnipeg Area Office, the Child Protection Law Office, the Public Interest Law Centre, and the Family Law Office). The Winnipeg area also includes one Aboriginal Centre Law Office, one Criminal Law Office, and the University of Manitoba Law Centre.
  • Brandon: The area has one office, the Westman Community Law Centre.
  • Dauphin: The area has one office, the Parkland Community Law Centre.
  • The Pas/Thompson: The area includes the Northlands Community Law Centre and the Thompson Community Law Centre.

Table 12 summarizes the services currently offered by Legal Aid Manitoba.

Table 12: Legal aid services in Manitoba
Services Description
Formal representation Through a mixed system (staff lawyers and certificates), Legal Aid Manitoba provides formal representation in the areas of criminal, family, and poverty laws. Legal Aid Manitoba also represents groups in cases of public interest.
Duty counsel Legal Aid Manitoba provides legal advice to individuals who appear in court but do not have a lawyer acting for them. This service is available in criminal, youth, and some child welfare courts. Legal Aid offers duty counsel services in approximately 50 communities in Manitoba; 95 percent of these services are provided by staff lawyers.
Brydges representation Staff lawyers, private lawyers mandated by Legal Aid Manitoba, or paralegals provide legal advice to individuals who are arrested after regular hours. The service is typically provided over the phone and is available from 4:30 p.m. to 8:00 a.m.
Drop-in advice and information On Tuesdays, Wednesdays, and Thursdays, from 1:30 p.m. to 8:00 p.m., the general public can meet a lawyer or a supervised paralegal at the Administrative and Winnipeg Area Office to discuss any legal problem or to apply for legal aid representation.
Other Legal Aid Manitoba maintains a Web site (www.legalaid.mb.ca) that provides information on services and eligibility criteria.

3.7.2 Policies and practices relating to bilingual legal aid services

The Manitoba Act, 1870

Section 23 of the Manitoba Act, 1870 states that either French or English _may be used by any person, or in any Pleading or Process, in or issuing from any Court of Canada established under the Constitution Act, 1867, or in or from all or any of the Courts of the Province._ Without relating specifically to legal aid services, this provision creates a legal context in which Legal Aid Manitoba must operate.

The French Language Services Policy

Having a more direct application to Legal Aid Manitoba is the French Language Services Policy of the Government of Manitoba. [59] As its title indicates, this is government policy and, as such, does not create linguistic rights that are enforceable by the courts.

The purpose of this policy is _to allow this community and the institutions serving it to access comparable government services in the language of the laws of Manitoba._ It applies, to the extent possible, to all government departments and to a number of public institutions including Legal Aid Manitoba. The policy identifies a number of objectives in relation to French services, including the following:

  • French services should be actively offered, which means"that services in French, whether provided by oral, written or electronic methods, are evident, readily available and easily accessible to the general public, and of comparable quality to those offered in English."
  • All correspondence with individuals or groups should be in the official language preferred by the recipient.
  • All forms, identity documents, and certificates intended for the general public should be in a bilingual format.
  • Signage, general information, and Web sites should be in both official languages.

As an organization covered by the French Language Services Policy, Legal Aid Manitoba has developed several internal practices relating to services in French.

Reception and intake services

An attempt is made to maintain some capacity on site to serve clients in both official languages. In cases where the service is not available on site, arrangements may be made to provide the service in French.

Formal representation

Any legal aid client who is involved in a French-language trial will have representation in French, either by a staff lawyer or a private lawyer operating with a certificate. This may include the translation of material and the services of an interpreter. An exclusively French-language court is available for trials in Saint Boniface, a francophone neighbourhood of Winnipeg.

Duty counsel

An attempt is made to provide some French-speaking duty counsel services, but it is not guaranteed that these services will be available in the 50 communities where duty counsel services are offered. The current focus is to provide some French capacity in the Winnipeg area.

Brydges representation

An attempt is made to provide some French services for Brydges representation by including bilingual staff lawyers, private lawyers, and paralegals on the list of counsel available on the phone from 4:30 p.m. to 8:00 a.m.

Drop-in centre

An attempt is made to provide bilingual services at Legal Aid Manitoba's drop-in centre. If no bilingual lawyer or paralegal is available, arrangements may be made to ensure that French services are provided within 24 hours.

Other services

Published material is available to the public in both French and English. The Web site is available in English.

3.7.3 Capacity to deliver bilingual legal aid services

There is a distinction between services that allow for some advanced planning, such as representation at trials, and high-volume services that must be provided on the spot, such as duty counsel and Brydges. Our consultations indicate that Legal Aid Manitoba has a capacity to offer French services of the first type, but experiences difficulties offering Brydges services.

  • Legal Aid Manitoba does provide formal representation in French, using certificates issued to bilingual private lawyers. While a number of staff lawyers have some French capacity, they do not conduct trials in French. Key informants noted that the number of bilingual private lawyers who accept legal aid work is limited, and their area of expertise may not always coincide with the area of law for which French language is required.
  • The availability of French-language resources is limited in duty counsel and Brydges representation. Key informants emphasized that the primary purpose of these services, which is to provide limited but immediate assistance, makes it difficult to plan.

Some key informants noted that it is usually up to the client to signal that he or she wishes to be served in French. As previously mentioned, there is some French capacity at the reception and intake process, but this does not necessarily mean that the services are actively offered in French. This is also true for duty counsel and Brydges representation. Unless the client emphasizes that he or she wishes to be served in French, these services will most probably proceed in English.

Key informants pointed to a number of consequences of not providing services in French:

  • In many cases, a failure to provide French services in the early stages of legal proceedings will have a direct impact on the capacity of legal aid clients to benefit from services offered in French during full representation at trial. Some key informants noted that referrals done in the context of Brydges representation or duty counsel do not necessarily include linguistic considerations. While clients may still request that a bilingual counsel represents them, three key informants suggested that some clients might not feel at ease doing so.
     
  • Key informants emphasized the pivotal role of duty counsel. Legal Aid Manitoba estimates that approximately 34,000 individuals benefited from duty counsel services in 2001, which illustrates the need for this service. The function of duty counsel is to assist an individual who, typically, has little knowledge of court proceedings and, in the case of criminal charges, may not understand all the consequences of his or her early decisions. Key informants noted that the quality of the communication between the client and duty counsel is critical.
     
  • As for full representation at trial, key informants indicated that the current approach in Manitoba, which consists of issuing legal aid certificates to bilingual private lawyers, assures the availability of these services.

3.7.4 Barriers to obtaining bilingual legal aid services

A number of barriers may prevent the provision or expansion of bilingual legal aid services in Manitoba. While Legal Aid Manitoba has control over some of these barriers, there are others over which the organization has little influence. Table 13 summarizes the main barriers identified by key informants.

Table 13: Barriers to the provision or expansion of bilingual legal aid services
Availability of bilingual lawyers According to key informants, there are few incentives for lawyers to do legal aid work. The current tariffs are considered low, and the administrative burden that comes with these certificates is significant.

It is difficult to find and retain bilingual lawyers. Provincial or federal prosecutions and private practice often attract bilingual lawyers after they have obtained experience as staff lawyers for Legal Aid Manitoba. It should be noted, however, that the salary ranges for Legal Aid staff lawyers and provincial prosecutors are fairly similar.

Key informants noted that few bilingual lawyers in Manitoba do criminal law, and a smaller number do legal aid work. Key informants estimated that less than five bilingual criminal lawyers in the province will accept legal aid work.
Low level of demand Key informants often referred to the low level of demand for French legal aid services. A number of factors were identified in that regard:
  • Many key informants noted that there appears to be a low level of reported criminal activity among the Franco-Manitoban community.
  • Because of their capacity to communicate in English, many Franco-Manitobans may be willing to proceed in English for other perceived benefits (avoid delays, greater selection of criminal lawyers, etc).
  • Some Franco-Manitobans choose to proceed in English in the hope of maintaining a greater degree of anonymity.
  • Some Franco-Manitobans are more at ease with written documents and the legal vocabulary in English. Trials in French may involve delays and additional appearances.
  • As a result, some lawyers will recommend to their French-speaking clients that they proceed in English.
Structure of legal aid services As previously mentioned, the structure of legal aid services can be a barrier to the provision of services in French. Legal aid clients come into the system through a variety of access points (Brydges representation at arrest, duty counsel, referrals, etc). The capacity to deliver French services depends on the availability of bilingual staff and the cooperation of other parties such as bilingual lawyers and the police.
Drop-in advice and information On Tuesdays, Wednesdays, and Thursdays, from 1:30 p.m. to 8:00 p.m., the general public can meet a lawyer or a supervised paralegal at the Administrative and Winnipeg Area Office to discuss any legal problem or to apply for legal aid representation.
Other Legal Aid Manitoba maintains a Web site (www.legalaid.mb.ca) that provides information on services and eligibility criteria.

3.7.5 Strategies to improve bilingual legal aid services

A study completed in 1988 on French-language services for the Government of Manitoba provides recommendations to improve services, including legal aid services[60]. Also known as the Chartier Report, this study recommends the creation of a bilingual court. In order to implement this bilingual court, the Report recommends, among other things, that:

  • The Attorney General ensure that at least three of the sixty Crown attorneys be bilingual;_ and
  • Legal aid ensure that at least two of its criminal lawyers be bilingual.[61]

The Government of Manitoba, the Government of Canada, the RCMP, the Commissioner of Official Languages, and community organizations are collaborating to implement, in 2002, a bilingual court pilot project in the community of Saint-Pierre-Jolys. This court (judges, prosecutors, court clerks, administrative personnel, etc), which will serve six surrounding communities including Winnipeg, will provide all its services in the two official languages. The purpose of this project is to centralize bilingual services and to ensure that all of these services are actively offered in both English and French. As part of this project, Legal Aid Manitoba is to provide duty counsel services and representation at trial in both official languages.

One important resource available to French-speaking lawyers in Manitoba as well as in other jurisdictions _ is the Institut Joseph-Dubuc (IJD).[62] Established in 1984 and now an integrated part of the Coll_ universitaire Saint-Boniface, the IJD offers translation services and acts as a resource centre:

  • The IJD has developed a series of French template documents that lawyers may use in preparing legal documentation and correspondences. These documents can be downloaded, in WordPerfect format, directly from the IJD's Web site, free of charge. They cover a wide range of issues, including civil procedure, family law, and criminal law.
     
  • A lexicon is available to lawyers for assistance in the use of the proper French legal terms in written or oral communications. Any individual can go to the IJD's Web site and consult the lexicon. As an illustration, a user of the lexicon would learn that the French equivalent of "Affidavit of Petitioner's Evidence" should be "Affidavit de la preuve du requ_nt."
     
  • The IJD organizes training sessions for lawyers who are interested in improving their French capacity. Typically, these training sessions coincide with annual general meetings of the various Associations des juristes d'expression française. While these training sessions may be provided in any province, the IJD has historically focused its activities in the western provinces. The IJD also provides tailored sessions on demand. For instance, the IJD has recently delivered three short sessions (each Friday for three weeks) to provincial Crown Attorneys.
     
  • The IJD publishes Point(s) de langue.These one- or two-page documents offer linguistic advice and tips on the proper use of French in Common Law. The publications are available on the IJDs Web site.

The IJD receives grants from the Department of Justice Canada (the National Program for the Integration of Both Official Languages in the Administration of Justice) and Canadian Heritage. As a result, most of its activities are offered at no or minimal costs.

Finally, key informants identified other initiatives that could improve the delivery of French services. Table 14 summarizes.

Table 14: Suggestions for improving bilingual legal aid services
Training Many key informants emphasized that having a conversation in French and conducting an entire trial in French requires different skills. Because there is little demand for French-language services, lawyers need ongoing training to maintain their skills.
Hiring of new staff Legal Aid Manitoba requires new bilingual staff to provide French services. The list of required bilingual positions includes four-to-six administrative staff, a bilingual paralegal and a bilingual staff lawyer, to provide duty counsel and full representation at trial.
French resources and equipment French computers and software programs

French legal resources
Revision of tariff structure Lawyers who do legal aid work based on a certificate are compensated on a flat tariff basis. Preparing procedures in French typically requires more time. An incentive could be built into the tariff structure to recognize the additional work required for providing French services.

Key informants estimated that an annual budgetary increase of approximately $250,000 would allow Legal Aid Manitoba to improve its capacity to deliver French services. It was emphasized that any additional resources to improve French services should be clearly earmarked for this purpose since competing interests and demands could take precedence over French services.


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