A Study on Legal Aid and Official Languages in Canada
5. Summary of findings
This section presents the summary of findings that emerged during the course of the study. Before addressing specific issues, we present in Table 25 an overview of some of the characteristics of legal aid systems in the 10 provinces and of the policy environment in which they operate.
Table 25: Summary profile per province
|- Constitutional right to use both official languages in all courts||X||X||X|
|- Legislative right to use both official languages in all courts||X||X||X|
|- Legislative right to a criminal trial in either official language||X||X||X||X||X||X||X||X||X||X|
|- Legislative right to receive legal aid services in the official language of the minority||X||X||X|
|- Government policy concerning the provision of legal aid services in the language of the minority||X|
|- Legal aid systems with a predominantly staff model||X||X||X||X||X|
|- Legal aid systems with a predominantly judicare model||X||X|
|- Legal aid systems with a mixed model||X||X||X|
|- Centralized toll-free number for Brydges representation||X||X||X||X||X|
|- Bilingual Web site||X||X|
|- Provinces with an Association des juristes d'expression française||X||X||X||X||X||X||X|
Our consultations indicate that the provision of legal aid services in the official language of the minority is influenced by two types of legislative provisions:
- General linguistic provisions: A number of constitutional and legislative provisions give Canadians the right to use both English and French before some courts. Typically, these provisions do not directly apply to legal aid services and, therefore, do not create an obligation for legal aid to provide its services in the two official languages. However, these provisions create an incentive for legal aid plans to offer some services in the language of the minority.
- Provisions specific to legal aid: In some jurisdictions (PEI, New Brunswick, Ontario, and Manitoba), legislation or policies have been established to govern the provision of government services in the official language of the minority. In all cases, the parameters of the legislation/policy are such that legal aid services are included.
Generally, legal aid plans across Canada have policies, formal or informal, regarding the provision of services in the official language of the minority.
- Legal aid plans do attempt to provide full representation in the language of the minority when a client makes a request to this effect. In a judicare model, this service is provided by a private lawyer who speaks the official language of the minority. In a staff model, the service is sometimes provided by a bilingual staff lawyer, but is more often provided by a bilingual private lawyer with a legal aid certificate.
- Legal aid plans also attempt to provide some duty counsel services and Brydges representation in the official language of the minority. However, these two areas are challenging, and, often, the provision of bilingual services is non-existent.
Key informants pointed to several barriers that may prevent the provision of legal aid services in the official language of the minority.
From the client's perspective, a lack of awareness of what services are available in both official languages, combined with the fact that there is typically no active offering of services in the official language of the minority, may limit the actual demand for such services. In this regard, survey findings indicate that respondents consider it important to have a lawyer speak to them in their first language; this is particularly so for anglophone respondents. Furthermore, francophones were more likely to contact an English-speaking lawyer when faced with long delays in obtaining a French-speaking lawyer than anglophones were to contact a French-speaking lawyer when faced with delays in obtaining an English-speaking lawyer; anglophone respondents were also more likely to agree to the use of interpretive services.
Additionally, legal aid clients may be intimidated by court proceedings and do not feel at ease requesting services in the official language of the minority. Some key informants were of the opinion that the justice system as a whole does not encourage the use of the official language of the minority. This is an important consideration because, as demonstrated by the survey of clients and potential clients, nearly all anglophone respondents indicate a preference for a trial in English. Francophone respondents were less adamant about the language of the trial; they were almost equally likely to want the trial to be held in English as in French. However, about half of both groups indicated a willingness to proceed in court in the official language of the majority as long as their lawyer had the capacity to communicate with them in their first language.
From the perspective of legal aid plans, they face several organizational barriers in attempting to offer their services in the two official languages:
- In a judicare model, legal aid plans rely on the willingness of bilingual private lawyers to do legal aid work. However, many of the bilingual lawyers tend not to do legal aid work or may not work in fields such as criminal law where the need for bilingual services may be particularly significant.
- In a staff model, it may be difficult for legal aid plans to recruit and keep bilingual lawyers. These lawyers tend to move toward more lucrative positions in the private sector or in other government departments.
- While lawyers may have some capacity to communicate in the official language of the minority, they often feel uncomfortable proceeding through an entire trial in that language. The level of language skills required in formal court proceedings may be difficult to maintain if used rarely.
- Duty counsel services are not only high volume in nature but also, generally, provided in all criminal court locations (some jurisdictions offering the service in family and youth court as well). In this respect, organizing the provision of services in the official language of the minority can be difficult. One approach taken in some jurisdictions is to focus the provision of these services in areas where official minority language groups are more prominent.
- Brydges representation presents many of the same challenges as those associated with duty counsel. Brydges representation is typically provided over the phone and involves a rotation of available lawyers. Again, bilingual services depend on the willingness of bilingual lawyers to be put on the list. Police authorities also play a pivotal role in assuring that clients requesting the service are made aware of the availability of bilingual lawyers.
- More generally, legal aid services in the official language of the minority may be competing with other demands, including services in other minority languages. Funding constraints faced by legal aid systems across the country make it difficult for legal aid plans to consider the provision of services in both official languages as a priority.
As illustrated in the previous sections, many factors influence the provision of legal aid services in the official language of the minority. While legal aid plans have control over some of these factors, others are more difficult to address. For instance, a legal aid plan may decide to actively offer its services in the official language of the minority, but may not be able to find bilingual lawyers willing to do legal aid work.
Based on the obstacles identified by key informants, a number of strategies can be developed to improve or expand the provision of legal aid services in the official language of the minority. The following strategies are aimed at issues that have a direct impact on clients:
- Public information materials being available in the official language of the minority (publications, brochures, posters, etc) so that official language minority groups are able to obtain basic information on legal aid services, regardless of the capacity of provincial plans to provide services in both official languages.
- Key players in the criminal justice system who first encounter accused, and who may have a significant impact on their access to justice, understanding the language needs of official language minorities.
- Criminal justice professionals throughout the system (police, lawyers, Crown, judiciary, and Legal Aid staff) being sensitized to the importance of services being made available in both official languages.
Additional avenues for improvement are directed at legal aid services:
- Language training provided to lawyers who may have a basic knowledge of the minority official language but are unfamiliar with the legal terminology required to provide services in that language _ both oral and written.
- Language training for paralegals, legal secretaries, and others who support lawyers in their work.
- Appropriate resources and tools made available to legal aid plans generally, and lawyers specifically, to enable them to provide services in the official language of the minority _ including reference materials and publications, computer programs, software, etc.
- Recognizing the role that various Associations des juristes d_expression française can play in the expansion of French legal aid services outside Québec. These associations are currently grouped within a national Fédération des associations de juristes d'expression française de common law. Developing a solid working relationship with legal aid plans could facilitate and encourage the provision of services in French. In jurisdictions without an Association des juristes d'expression française, there are other francophone community organizations that could collaborate with legal aid plans.
Within Québec, there is a valuable network of anglophone organizations. Legal aid offices can work in collaboration with the various organizations to improve and expand on legal aid services provided in English.
Other barriers identified by key informants, while having a significant impact on the provision of legal aid services in the official language of the minority, are concerned with the legal aid system generally. Therefore, any strategies to overcome these barriers would affect the legal aid system as a whole. These include the following:
- Legal aid work, compared to other areas of law, is not financially rewarding. As a result, it can be difficult to maintain Legal Aid staff, particularly bilingual staff. Therefore, the current remuneration of staff lawyers is a potential barrier to the recruiting of bilingual candidates. As emphasized in the report, this impact varies among jurisdictions. While provincial prosecutors in Ontario benefit from higher salary ranges than staff duty counsel, many other jurisdictions offer similar salary ranges to both provincial prosecutors and staff Legal Aid lawyers. It is possible, however, that bilingual lawyers will find more lucrative positions in the private sector or in other provincial ministries or federal departments (including federal prosecutions).
- In judicare or mixed models, the tariff structure may have the same type of impact as that of salary ranges in staff legal aid models. Tariffs that are perceived as being too low may discourage lawyers, including bilingual lawyers, from doing legal aid work.
An examination of the overall findings of the research leads to the conclusion that there are a number of issues and barriers that can be addressed with additional resources. Federal funding can be targeted in two ways:
- First, funding can be targeted toward those considerations directly related to the provision of legal aid services in the official language of the minority. The federal government can support language training initiatives, publication of materials in the two official languages, and the development of legal resources and tools in both official languages. The federal government can also provide direct support to initiatives aimed at sensitizing criminal justice professionals to the needs of official language groups and at building linkages between the different organizations and associations involved in official language issues.
- Second, funding can address some of the institutional barriers that relate to the entire system and have a definite impact on the provision of services in the official language of the minority, such as the tariff structure and the remuneration of staff lawyers.
Inevitably, some impediments to the provision of legal aid services in both official languages cannot be addressed through additional funding. As previously mentioned, legal aid work is highly specialized, demanding, and challenging. Therefore, difficulties arise in finding and maintaining lawyers who speak both official languages and who are willing to work for legal aid in the area of criminal law.
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