A Study on Legal Aid and Official Languages in Canada

3. Findings from the jurisdictions (continued)

3.8 Saskatchewan

Currently, French is the first language of close to 20,000 people in Saskatchewan; this number represents approximately 2 percent of the total population. Francophones are dispersed across the province but are concentrated in two regions, around the village of Batoche and the city of Prince Albert, and around Gravelbourg in south-central Saskatchewan .

Only one-third of all francophones in Saskatchewan live in the urban centres of Saskatoon and Regina; most live in rural areas.

The francophone population has dropped since 1951, when it represented 4.4 percent of the population (36,815 people). The number of people who can speak French has risen only slightly in the past 15 years to 1996, when the Census reportedthat 50,000 people in the province knew French (5.2 percent of the total population). [63]

The Association des juristes d'expression française de la Saskatchewan was established in 1987. The Association now has between 40 and 50 members. The objectives of the Association are to promote and make French legal services accessible, and to study and develop French legal documentation[64].

3.8.1 Services

Founded in 1974, the Saskatchewan Legal Aid Commission administers the provision of legal aid services in Saskatchewan[65]. The Commission has 11 board members and reports to the Minister of Justice. It is responsible for the 13 offices providing legal aid services in criminal and family law across the province. The Commission operates a staff model delivery system.

Table 15 summarizes the key services currently offered by the Commission

Table 15: Legal aid services in Saskatchewan
Formal representation The coverage provided in criminal matters applies to adults charged with federal indictable offences. Legal aid services are also available for summary conviction and provincial offences, but only when there is a likelihood of imprisonment or loss of livelihood.

The program provides assistance for youths involved in any proceedings under the Young Offenders Act.

Legal aid in civil matters is generally limited to family law.
Duty counsel Bilingual duty counsel services can be arranged in some provincial courts for those meeting the financial eligibility criteria.
Brydges representation During business hours, the Commission provides Brydges services. After hours, the Commission contracts a private law firm to provide this service.

3.8.2 Policies and practices relating to bilingual legal aid services

The Language Act

Section 11 of The Language Act establishes[66] the right to use both English and French before the courts of Saskatchewan:

"(1) Any person may use English or French in proceedings before the courts entitled as:

  • (a) the Court of Appeal
  • (b) the Provincial Court of Saskatchewan
  • (c) Her Majesty's Court of Queen's Bench for Saskatchewan
  • (d) the Surrogate Court for Saskatchewan
  • (e) the Traffic Safety Court of Saskatchewan; or
  • (f) the Unified Family Court for Saskatchewan."

The province of Saskatchewan does not have legislation or formal policies that deal specifically with the provision of French legal aid services. However, the Commission acknowledges its responsibility to accommodate requests for French services.

Reception and intake services

The Commission offers primarily English-language services in its 13 regional offices. There is no active offer of French services, but, if required, the Commission will arrange to provide them. In addition, the Commission can provide its correspondence in French. [67]

Formal representation

If a client asks to be represented in French, the Commission will offer the service either through the bilingual staff lawyer or through a contractual arrangement with a bilingual private lawyer.

Brydges representation

The services are provided in English unless French is required.

3.8.3 Capacity to deliver bilingual legal aid services

The Commission's capacity to deliver services in French depends on the skill and experience required. The bilingual staff lawyer would be able to provide summary advice but would not be comfortable conducting a trial in French, and very few bilingual private lawyers do legal aid work. Key informants emphasized that finding the right mix of experience and French-language capacity is difficult.

The main deficiency in delivering bilingual legal aid service is in conducting trials. Key informants said that training staff lawyers to speak French is not practical because the volume of cases requiring French is too low for them to become proficient.

The Commission recently entered into a partnership with Legal Aid Manitoba to use one of their certificate (farm-out) lawyers for a francophone accused from Manitoba. Since the accused was facing a lengthy sentence, it was important not only to have French-language skills but also to have someone with experience in criminal law. There are French-speaking lawyers in Saskatchewan who could conduct a trial, but they do not have the requisite criminal experience.

In Saskatchewan, 71 percent of legal aid clients are Aboriginal, so the Saskatchewan government has established a Cree-speaking Court, and the Commission has designated a Cree-speaking lawyer. In comparison, key informants estimated that the Commission receives only two or three requests annually for French-language services.

3.8.4 Strategies to improve bilingual legal aid services

Key informants noted that flexibility is required when assessing possible avenues to improve French-language services. The Commission must be able to respond to the specific circumstances relating to a request for French services.

One of the recommendations that emerged from our consultations was for the Commission to have a contractual arrangement with a private lawyer on a retainer to provide services in French. Another recommendation was to initiate a pilot project where the Association des juristes d'expression française would have a formal agreement with the Commission to provide services in French.

3.9 Alberta

French is the first language of approximately 55,000 people in Alberta, but this comprises only 2 percent of the total population. More than half of the province's francophones live in Calgary and Edmonton. Other significant concentrations are found in Rivière la Paix, Bonnyville, Saint Paul, Plamondon, and Lac La Biche.

The francophone population has been slowly decreasing and, from 1951 to 1996, the percentage of people whose mother tongue is French has dropped from 3.6 percent to 2 percent. Nevertheless, the number of people who speak French has grown considerably since 1951; in 1996, more than 180,000 people (6.7 percent of the total population) spoke French. [68]

The Association des juristes d'expression française de l'Alberta has approximately 35 members and works to promote French legal services, increase their accessibility, and develop reference materials in French. [69]

3.9.1 Services

An agreement between the Law Society of Alberta and the provincial Attorney General, signed in 1970, gives the Law Society authority over the establishment, maintenance, and operation of a legal aid plan. There is no formal legal aid legislation in the province. Incorporated in 1973, the Legal Aid Society is responsible for the administration of the legal aid plan on behalf of the Law Society[70].

The province is divided into eleven regions and grouped into a northern and a southern district. Legal aid services are delivered through a primarily judicare model. However, staff lawyers in Edmonton, Calgary, Red Deer, and Siksika Nation provide a variety of services (duty counsel and other).

Table 16 summarizes the services provided by the Legal Aid Society of Alberta.

Table 16: Legal aid services in Alberta
Services Description
Formal representation Coverage is provided for adults convicted of indictable offences and summary offences where there is likelihood of imprisonment. Crown-initiated appeals are covered for indictable offences and defence-initiated appeals are covered if the case has merit. Family and civil matters are also eligible for coverage.
Duty counsel Criminal duty counsel is provided at all courts, primarily to individuals in custody. Duty counsel may also assist individuals who are not in custody but are appearing in court for a first time. Staff lawyers provide duty counsel services in Red Deer (criminal and civil), Edmonton, and Calgary. Duty counsel services are also provided for appearances before the Mental Health Review Panel.
Brydges representation The Legal Aid Society distributes to the police rosters of lawyers who are available to take Brydges calls.
Family Law Office This office was created in 2001 as part of a pilot project. Salaried staff lawyers in Edmonton and Calgary assist individuals who have been referred by the Legal Aid Society with family law matters. In cases of conflict, legal aid certificates are issued to members of the private bar.
Youth Criminal Defence Office Since 1993, staff lawyers at the Youth Criminal Defence Office have provided legal aid services in Edmonton and Calgary. Staff lawyers provide duty counsel services, Brydges representation, and full representation to youth charged with criminal offences under the Young Offenders Act. In the event of conflict, legal aid certificates are issued to members of the private bar.

3.9.2 Policies and practices relating to bilingual legal aid services

The province of Alberta does not have any constitutional obligations to provide services in French; however, section 4(1) of the Alberta Languages Act establishes the right to use English and French before the courts as follows:

"Any person may use English or French in oral communication in proceedings before the following courts:

  • (a) the Court of Appeal of Alberta;
  • (b) the Court of Queen's Bench of Alberta;
  • (c) repealed RSA 2000 c16 (Supp) s50;
  • (d) the Provincial Court of Alberta."

Although this does not apply to government organizations or legal aid services, it creates an incentive for the Legal Aid Society to provide services in both official languages, as does s. 530 of the Criminal Code.

There are currently no formal policies or practices within the Legal Aid Society of Alberta for the provision of legal aid services in French. When required, French legal aid services will be provided by members of the private bar, acting on certificates, or through interpreters. Requests for services in French are handled in the same way as requests for services in any language other than English.

Reception and intake services

Throughout the province, there are three regional offices with limited French capacity. If available staff cannot respond to a request for French-language services, the Legal Aid Society will require that the unilingual French-speaking person obtain an interpreter.

Formal representation

The Family Law Office and the Youth Criminal Defence Office do not have any French-speaking lawyers on staff. Lawyers in private practice who accept legal aid certificates are identified by language. Attempts will be made to assign a French-speaking lawyer to a client who makes the request for one.

Duty counsel

There is no policy on the provision of duty counsel services in French. These services are provided in English.

Brydges representation

There are no policies regarding the provision of Brydges representation in French. Essentially, services are provided in English.

3.9.3 Capacity to deliver bilingual legal aid services

The Legal Aid Society has no legislative or policy obligations to provide services in French. In light of this, our assessment focuses on documenting the current capacity of the organization to provide such services and determining whether this capacity adequately meets the needs of the minority official language group.

The Legal Aid Society does not currently employ any French-speaking staff lawyers, and only a limited number of front-end staff have French capability. In assessing the level of services provided in French by the Legal Aid Society, key informants highlighted a number of considerations:

  • The demand for French legal aid services is very low. There are requests for services in languages other than English, but these requests are usually not for French.
  • Francophones in Alberta do not try to get services in French because they are used to being served in English only. Actively offering legal aid services in French might uncover whether the need is actually greater than perceived.
  • Franco-Albertans often wish to speak to a lawyer who is fluent in French, but they do not necessarily want to proceed before the courts in French. The reason is that while they are more comfortable in their first language, many are not familiar with legal terms in French.
  • A lawyer's capacity to speak and understand French does not translate into a lawyer's capacity to conduct a trial in French.

3.9.4 Strategies to improve bilingual legal aid services

In light of the very low demand for French legal aid services, there is no perceived gap or perceived pressing need to improve service delivery in French. Some key informants did indicate, however, that front-end services should be improved, particularly where immigration matters are concerned, since a number of individuals requiring assistance with immigration matters originate from francophone countries. Other priorities identified by key informants are Brydges representation and duty counsel services.

Recommended strategies for improving the capacity to provide legal aid services in French include French-language training for lawyers and staff, and designated bilingual positions. Key informants noted, however, that there are important systemic barriers to improving the delivery of French legal aid services:

  • The French language is not treated as a priority by the province or by the legal aid system. It is just one of many other languages that must be accommodated.
  • The justice system functions in English only. It is very difficult for lawyers to provide legal aid services in French when the system does not support it.

3.10 British Columbia

According to 1996 Census data, there are 56,755 people in British Columbia with French as a mother tongue (1.5 percent of the total population). Francophone communities are dispersed throughout the province, and nowhere in the province do they represent a significant proportion of the population. The majority of francophones are located in Vancouver and Victoria, yet they constitute less than 2 percent of the total population in each of these urban centres.

Although the proportion of British Columbia residents with French as a mother tongue has decreased from 1.7 percent in 1951 to 1.5 percent in 1996, the actual numbers indicate an increase of people in British Columbia with French as a mother tongue (43,415 in 1981 compared to 56,755 in 1996). Additionally, the number of people who know French has grown; 6.8 percent of the population (250,000 people) say that they can speak French.[71]

In January 2001, the Fédération des francophones de la Colombie-Britannique (FFCB) announced the creation of the Association des juristes d'expression française de la Colombie-Britannique. The Association consists of approximately 35 members including lawyers, judges, and translators. Its mandate is:

  • To develop and implement legal services in French in British Columbia and ensure the respect of linguistic rights.
  • To contribute to the professional development of French-speaking lawyers and facilitate the practice of law in French as well as the access of its services to francophones in the province.
  • To examine issues relating to linguistic rights and advise on the steps to be taken for the development of these rights[72].

3.10.1 Services

The Legal Services Society Act was passed in 1979, thereby establishing the Legal Services Society (hereafter the Society) as a corporation independent of both the legal profession and the provincial government. The objectives of the Society include ensuring the provision of legal services to individuals without the financial means to procure their own lawyer and the provision of education, advice, and information about the law to British Columbians.

Services are provided through a mixed delivery model. There are currently 44 offices across the province, a number of branch offices, community law offices, and Native community law offices. The branch offices employ Legal Services Society personnel, while community law offices and Native community law offices are governed by their own boards of directors.

The Society's Board of Directors is comprised of 15 members. The Board elects an executive committee and may also appoint a Chief Executive Officer responsible for supervising, managing, and administering the legal aid plan. Pursuant to the Act, the Lieutenant Governor in Council can appoint a trustee to replace the Board of Directors in conducting the affairs of the Society if it is perceived as being in the public's interest and necessary to ensuring continued and effective service delivery[73].

Table 17 describes the services currently provided by the Legal Services Society.

Table 17: Legal Aid Services in British Columbia
Services Description
Formal representation Criminal matters: Legal aid is provided to individuals who are charged with provincial and federal offences where there is a likelihood of imprisonment. Most locations used a mixed model delivery system.

Immigration matters: In April 1991, an immigration tariff was created, and in January 1995, the Society established a staffed Immigration and Refugee Law Clinic in Vancouver.

Civil matters: Legal aid service is provided by staff lawyers only and does not cover personal injuries cases. The BC Human Rights Commission funds a tariff applicable to matters recognized by the Commission.

Family matters: Legal aid is available when financially eligible people have serious family problems (risk of abuse) or may be imprisoned as a result of the legal issue. If the legal problem affects livelihood or ability to protect and support families, services will be provided. In 1994, the Family Case Management Program (FCMP) was implemented, directing limited resources to cases that will result in immediate, tangible results to clients and/or families.
Duty counsel These services are available in most criminal courts and some youth courts. Generally, the services are not available in family court with the exception of some apprehension cases. Pre-court duty counsel is provided to individuals in custody and, time permitting, to individuals not in custody on a first appearance. These services are provided by staff and private bar lawyers.
Brydges representation Brydges representation is available on a 24-hour basis through a phone line. The service is contracted to a telephone service, and private bar lawyers provide representation.
Information services The Legal Information Services Department provides education, advice, and information about the law through three programs:

Public Legal Education (PLE): This includes workshops, booklets, and audio-visual productions. Additionally, grants are provided to community groups.

Library Program and Publishing Program: Through the operation of the Legal Resource Centre, these programs provide a research facility and telephone information service on the law and legal services. The Centre also provides reference services, funding, staff training, and library consultation.
Other services Judicial Appeals: The Appeals Department determines whether the Society will support an appeal, coordinates approved appeals, and administers appellate legal services.

Native Program: This ensures that the Society is sensitive and responsive to legal service needs of Aboriginal people. Focuses on improving Aboriginal people's access to legal programs and services.

Prisoners' Legal Services: This handles prison and parole-related legal issues and provides a range of services (summary advice to legal representation).

The Society provides partial funding to the Community Legal Assistance Society (CLAS), which does test case and law reform work in the areas of poverty law, human rights, and disability law. In addition, the Society supervises the Law Students' Legal Advice Program (LSLAP), and provides services under the Mental Health Act.

The province is presently facing severe economic challenges that have resulted in significant budget cuts to the delivery of legal aid services. The Legal Services Society is undergoing massive restructuring, and all services are affected. In February of this year, a trustee was appointed to replace the Board of Directors in order to implement the new budget and reorganize legal aid services. Legal aid funding will be cut by approximately 40 percent over three years, thereby closing 60 Legal Aid offices across the province, laying off 74 percent of the staff, eliminating public legal education grants, and terminating grants to local libraries. By September 2002, a central call centre, located in Vancouver, and seven regional offices will replace the Legal Aid offices.

As of April 1, access to legal aid services will be severely restricted. Legal representation for family law cases where violence is not involved and legal representation for poverty law cases will be gradually phased out, ending in September 2002. Services for criminal law matters, immigration, mental health cases, young offenders, and child protection matters will be maintained. Public Legal Education will consist mainly of electronic services such as the Society's Web site, a new version of LawLine, some printed documentation, and some community advocate training.

The Society has not yet determined whether services such as out-of-custody duty counsel and continued coverage of those existing referrals for family cases will continue after September 2002[74].

3.10.2 Policies and practices relating to bilingual legal aid services

The province of British Columbia has no legislation or formal policies pertaining to French legal aid services. As with any language other than English, services are provided on an ad hoc basis. Our consultations indicate that interpretive services are used when no French-speaking staff are available. The Society does not have any hiring policies based on linguistic capacities.

Reception and intake services

If a client requires assistance in French, he or she must bring an interpreter (provided at the Society's expense) unless someone in the office can speak sufficient French. The intake process includes an interview, and, therefore, the client and the intake personnel must be able to communicate effectively.

Formal representation

Our consultations indicate that many clients have their own lawyers. In the event that a client needs to obtain a lawyer, the Society will respect the client's language preference. If the Society does not have a French-speaking lawyer on staff, it will turn to the private bar in that community. If no French-speaking lawyers are available, interpretive services will be provided.

Duty counsel

The Society does not automatically offer services in French to individuals requiring duty counsel services. Interpreters are available at the courthouse.

Brydges representation

Lawyers in private practice provide Brydges representation. According to key informants, the Society does not control this service, but the contract stipulates that interpretive service must be available.

3.10.3 Capacity to deliver bilingual legal aid services

Our key informant interviews indicate that legal aid services are not easily accessible in French. Although the Society attempts to meet the needs of French-speaking clients, its capacity to offer its services in both official languages is limited. According to key informants, there is one bilingual lawyer at the Immigration and Refugee Law Clinic. The Society does not employ any family lawyers who are French-speaking. Of the 28 criminal staff lawyers, four are bilingual. Additionally, two staff lawyers who provide services in poverty law are functionally bilingual. Bilingual staff lawyers do not travel to other communities to provide French legal aid services. The Society aims to meet the standard imposed by s. 530 of the Criminal Code but does not go beyond that requirement.

The LawLine does not employ any bilingual staff. Only two staff members who take calls have any French capacity; they can answer some basic questions in French and provide very basic directions. Intake staff in Vancouver do not have any French-language capacity.

In light of the Society's limited capacity to provide services in French, interpreters are widely used and heavily depended upon. Whereas a French-speaking lawyer can be obtained from the community, intake and information services require the assistance of interpreters. Extra efforts are required in order for a client to receive services in French, and delays are inevitable. Key informants have identified a number of issues and concerns regarding the use of interpretive services:

  • The use of interpreters is not ideal because the services are not provided directly and always involve delays.
  • There are benefits to direct communication with a lawyer and other Legal Aid staff. Speaking one's own language and being understood in that language has greater impact.
  • It is difficult to transmit the exact meaning of what is being said through an interpreter. In law, information must be as factual as possible.

Key informants noted that it is important to provide legal aid services in French because French is an official language of Canada. Access to direct services in French ensures communication that is more effective, ensures a client's better understanding of the proceedings, and ensures a higher degree of confidence that miscommunications will not occur. We were told that clients feel a sense of relief when they are able to access French legal aid services because it facilitates the process. These clients are already in very difficult situations, and not being able to communicate in the language in which they are most comfortable creates additional stress. Many become more insecure when they are unsure of being fully understood.

The most important gaps in French legal aid services identified by key informants include:

  • The society's inability to provide immediate assistance and advice in French (in Brydges representation and duty counsel services). Our consultations indicate that the RCMP must sometimes act as interpreters to clients who are arrested and detained. This could potentially be a conflict of interest.
  • The lack of information and documentation in French. Documents, brochures, and pamphlets are often translated in a number of other languages, but French is usually not a priority. It is important that the francophone population of British Columbia receive at least the most basic information in their language.
  • The difficulty of receiving any type of assistance or information in French.

Considering the current political and economic context of the province, French-language services are certainly not a priority. It was noted that a number of other gaping holes in legal aid services must be addressed before the issue of language can be considered. The Society is currently struggling with budget cuts and attempting to maintain a minimum level of service. Key informants identified several other key issues and barriers to consider in the expansion of legal aid services in British Columbia:

  • There is very little demand for services in French. The cultural and ethnic composition of British Columbia is diverse, and other languages are often much more in demand (Asian and South Asian languages, Spanish, Hindi, Punjabi). Some key informants indicate that an active offering of services in the official language of the minority might have an impact on the demand for such services; if people do not know that services are available in French, they will not ask for them.
  • There is a lack of French-speaking lawyers. Many lawyers and staff speak other languages, but it is difficult to locate and hire French-speaking lawyers. The linguistic profile of the population is currently shifting because of increased popularity of French immersion programs. However, this difference will probably not be felt for another 15 years.
  • In addition to a lack of lawyers who speak the official language of the minority, there is also a lack of paralegals, secretaries, and other support staff who speak French. It is difficult for lawyers to practise law in French if they do not have the adequate and necessary support.
  • Most senior lawyers speak English only. Some French-speaking lawyers lack the expertise, specialization, or experience to conduct a trial in French. This could potentially influence a French-speaking client's choice of lawyer.
  • The Legal Services Society does not offer French training to lawyers and other Legal Aid staff.
  • British Columbia has always had a problem with unrepresented accused. The reductions in resources provided to Legal Aid have aggravated this problem. In response, many community organizations have set up pro bono legal clinics. These clinics, however, cannot guarantee legal services in French.

3.10.4 Strategies to improve bilingual legal aid services

Key informants identified various strategies for improving the delivery of French legal aid services. According to our consultations, one of the priorities appears to be the development of a policy within the Society for the provision of legal aid services in both official languages. Many key informants believe that an active offer of the services is necessary and that the offer must be done systematically and consistently. This suggestion assumes that services are indeed available in the official language of the minority.

Table 18 summarizes the suggested avenues to be taken.

Table 18: Suggestions for improving bilingual legal aid services
Systematic offering of French legal aid services Policies should be developed to ensure the provision of French legal aid services. Different ways of offering the services and making people aware of the existence of services include:
  • Upon arrest, police could inform the accused that he or she can request French legal aid services.
  • Interpreters at the courthouse should be consistent in offering legal aid services in French.
  • Intake and reception staff should offer the services.
  • The Society should hire a certain number of lawyers and other staff with French capacity.
Sensitizing the population to the importance of French legal aid services The general population should be made aware that they can ask for services in French; services should be increasingly visible. In addition to sensitizing the general population, interpreters, criminal justice workers, Legal Aid staff, and others need to be aware of the importance of providing legal aid services in both official languages.
Use of the francophone network The francophone community network can be used to disseminate information on French legal aid services. Basic information about legal aid services needs to be available in French.

The Association des juristes d'expression française de la Colombie-Britannique should collaborate with the Society to identify French-speaking lawyers. They act as the point of contact for many francophones requiring legal services in French.
Training French training should be made available for Legal Aid lawyers, private bar lawyers, and other Legal Aid staff. Some lawyers and staff members have some knowledge of French and would only need to upgrade their skills. Training in the form of workshops would be very helpful.

Key informants identified the Institut Joseph-Dubuc[75] as a possible source of training. In addition, Éducacentre currently provides French-language training to lawyers and other professionals in the justice system. Éducacentre currently provides training to a number of government departments and to a few private law firms. According to our consultations, the organization charges approximately $45 per hour for this type of training (group or tutorial).

It appears important that the Legal Services Society first recognize French as an official language of Canada. Basic information on legal aid services should be available to the French population of the province. The francophone community network, including the Association des juristes d'expression française, appears to be an important resource for the dissemination of information and for the improvement of legal aid services in the official language of the minority.

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