Environmental Scan: Access to Justice in Both Official Languages
Background and Terms of Reference
The Environmental Scan: Access to Justice in Both Official Languages was commissioned by the Department of Justice of Canada to track recent developments in language law.
As part of this project, PGF/GTA Research was selected to prepare a description of access to judicial and legal services in both minority official languages, and to identify needs that are specific to each province and territory. The purpose of this exercise was to facilitate the adoption of measures to improve access to justice in both official languages in areas that are under federal jurisdiction.
Profile of Respondents
The research team consulted 358 people in carrying out its terms of reference. The individuals consulted included 280 members of the legal profession: 243 lawyers in private practice, 14 federally or provincially appointed judges, 13 federal or provincial prosecutors, 37 court officers, seven provincial representatives, and the presidents of seven associations of French-speaking legal professionals (Association des juristes d'expression française - AJEF).
One of the primary tools used in this study was a survey sent to members of the legal profession. That questionnaire consisted mainly of closed questions that were amenable to quantitative analysis. In addition to the data collected using that method, we conducted telephone interviews that included more semi-open and open questions with other respondents across Canada, including court officers, prosecutors, judges, representatives of provincial ministries and the presidents of the various AJEFs. As well, we organized two focus groups consisting of four lawyers who practise law in English in Quebec and 11 members of the AJEFs in the seven provinces where those organizations have been established.
Analysis of the Data
Overall Evaluation of Judicial and Legal Services in the Minority Language
On the whole, the survey demonstrates that, in the 12 provinces and territories where French is the minority language, there is dissatisfaction with a number of aspects of judicial and legal services in French. There is a feeling shared by a number of the people who work within the justice system - including both lawyers in private practice and people who work in the judicial system in other capacities - that French-speaking individuals are at a disadvantage in that system.
The proportions of lawyers outside Quebec who expressed dissatisfaction with judicial and legal services in French in different areas of the law are as follows: 50% for criminal law, 58% for bankruptcy law and 45% for the law of divorce and support. This reflects a relatively high level of dissatisfaction with the availability of judicial and legal services in French. However, that finding was not uniform from one province, territory or judicial division to another.
For instance, the rates of satisfaction in New Brunswick were 92% for criminal law, 50% for bankruptcy law and 100% for the law of divorce and support. Despite these high rates of satisfaction, and although French-speaking individuals generally have access to justice in French, there are some predominantly English-speaking regions where it remains difficult to access judicial and legal services in French.
In Ontario, the rate of satisfaction was 65% (criminal law), 55% (bankruptcy law) and 53% (law of divorce and support). It was pointed out to us that there has been a constant increase in the number of trials held in French in that province since 1997.
In the other jurisdictions outside Quebec, the rate of satisfaction was generally below the average. For example, it was 0% in Manitoba and Saskatchewan for criminal law, while in Nova Scotia it was 25% for the law of divorce and support and 0% for bankruptcy law.
Generally speaking, and unlike the lawyers in the 12 other provinces and territories, lawyers in Quebec report that they are very satisfied with judicial and legal services in the minority language (English) in all three areas under federal jurisdiction, their rate of satisfaction in the three areas in question varying from 87% to 100%.
Perception of the Impact of Proceeding in the Minority Official Language
The evaluation of the impact of proceeding in French outside Quebec indicates that there is a problem, in that time and cost are factors that influence the decision as to whether or not to proceed in French. For instance, 54% of lawyers outside Quebec believe that the additional time required for procedures in French has an impact on that decision, and 39% of those lawyers believe that additional costs have the same impact.
On the other hand, a relatively low number of lawyers believe that the possibility of an unfavourable judgment or of a necessary appeal has an impact on the decision as to whether or not to proceed in French.
In Quebec, the opinions expressed by lawyers indicate that the proportion of lawyers who believe that these factors have an impact on the decision to proceed in English is generally lower than is the case in jurisdictions outside Quebec in relation to the decision to proceed in French: 15% of lawyers are of the opinion that time is a factor that affects the decision to proceed in English, and 23% believe that additional costs have the same impact.
Awareness and Application of Section 530 of the Criminal Code
Outside Quebec, 79% of members of the legal profession report that they are aware of section 530 and of the implications of that section. However, 40% of them believe that judges inform accused individuals who are not represented by counsel of their language rights. In Quebec, 71% of the lawyers questioned say that they are aware of section 530, and 60% think that judges inform of their language rights the accused persons who are not represented by counsel.
At the national level, with the exception of a few provinces, active offer of services in the minority official language is not always made, and the components of what might be expected in a genuine policy are present only in somewhat limited fashion.
Barriers: Criminal Law (outside Quebec)
Nearly half of lawyers, 49%, believe that it is easy to obtain services in French from judges in criminal cases. Slightly less than half -46%- believe that it is easy to obtain services in French from prosecutors (both provincial and federal). A little more than one third (from 35% to 37%) say that it is easy to obtain services in French both from officers of the provincial and superior courts and from support staff at courthouses.
To varying degrees, the data reflect problems in access to documentation in French:
- 29% believe that it is easy to access legal literature
- 41% believe that it is easy to access case law
- 54% believe that it is easy to access pleadings
- 78% believe that it is easy to access legislation
For interpretation services, 64% of lawyers believe that they are easy to access. Assembling a jury that is able to understand the case in French is problematic in some regions of the country. The lower the concentration of francophones in a region, the more difficult it is to assemble this kind of jury.
Barriers: Criminal Law (Quebec)
All of the lawyers questioned (100%) believe that it is easy to obtain services in English from judges. The judiciary in Quebec is generally perceived as being very open to bilingualism, according to these respondents. However, they express reservations regarding the level of bilingualism among the other actors in the judicial system in nearly all regions outside Montreal.
Some difficulties are encountered in assembling a jury who can understand the case in English; 50% of respondents believe that this is not easily done.
In terms of documentation - access to legislation in English, case law in English and pleadings in English - there does not seem to be any particular difficulty. However, according to 33% of the lawyers questioned, access to case law in English is more complicated.
Barriers: Bankruptcy Law (outside Quebec)
According to 43% of lawyers, it is easy to obtain services in French from judges in bankruptcy cases; 38% believe that it is easy to obtain services in French from officers of the Superior Court and 31% believe that it is easy to obtain services in French from the support staff at the courthouse.
Access to documentation and services in this field is problematic: only 21% of lawyers have ready access to legal literature in French in bankruptcy law, and 29% have ready access to case law in this field. On the other hand, 51% have ready access to pleadings in the field of bankruptcy.
Barriers: Bankruptcy Law (Quebec)
In bankruptcy cases, it is easier to access services in English from judges (80%) than to access services in English from officers of the Superior Court (57%) or courthouse support staff (21%). Of the lawyers questioned, 43% believe that it is easy to obtain interpretation services.
On the question of documentation, some difficulties were reported regarding access to legal literature and case law in English: 36% of lawyers believe that it is not easy to access them. On the other hand, 86% of lawyers believe that it is easy to access pleadings in English.
Barriers: Law of Divorce and Support (outside Quebec)
According to 56% of lawyers, it is easy to obtain services in French from judges in this area of federal jurisdiction; 43% believe that it is easy to access these services from officers of the superior court, and 35% think the same thing with respect to the availability of services in French from officers of the provincial court.
A high proportion of lawyers in this field (73%) believe that it is easy to access legislation in French, and 63% find it easy to access pleadings in French. For the case law and legal literature in French, 37% and 22%, respectively, find them to be easy to access.
Barriers: Law of Divorce and Support (Quebec)
All of the lawyers questioned (100%) agree that there is no difficulty in accessing services in English from judges. However, as in the other two areas under federal jurisdiction, it is more difficult to obtain services in English from officers of the Provincial Court and Superior Court: 57% of respondents believe that it is easy to access the services of officers of the court, and 29% say the same thing about the support staff at the courthouse.
The legislation is generally considered, by 80% of lawyers, to be easy to access, while other documents are more difficult to obtain in English: pleadings (50%), legal literature (43%) and case law (29%).
The situation as it relates to access to justice in both official languages evidently varies from one province, territory or judicial division to another. For one thing, the three territories have a less highly developed judicial infrastructure. In those three jurisdictions, borrowing services from other provinces appears to offer a temporary solution while waiting for resident bilingual judges to be appointed.
Next come the provinces where work has yet to begin: Newfoundland and Labrador, and British Columbia. In both those cases, a minimum set of remedial measures could be considered, which would include a census of bilingual lawyers, and appointment of bilingual prosecutors and at least one bilingual judge. To supplement those measures, inter-provincial loans of services should continue.
Then, we have the provinces where progress toward better access to justice in the minority official language is in its infancy: Alberta, Saskatchewan, Manitoba, Nova Scotia and Prince Edward Island. In those cases, more francophone judges need to be appointed, bilingual court staff positions created, and innovative approaches adopted, including single-window service, itinerant courts and computerization.
The three central provinces (Ontario, Quebec and New Brunswick) have their own problems, but those problems are not as serious or as widespread. For these provinces, services in both official languages need to be made available and easily accessible throughout the entire province, an active offer policy needs to be developed and implemented, measures need to be taken to ensure that judicial personnel are able to serve the public in the language of their choice, and use of the minority language needs to be standard practice in order to overcome the idea that proceeding in the minority language puts an individual at a disadvantage or increases the costs and time involved.
- Date modified: