The Standing Senate Committee on Official
has the honour to table
February 5, 2003, the Senate asked your Committee to study
the report entitled Environmental Scan:
Access to Justice in Both Official Languages (revised on July 25,
2002), which had been commissioned by Justice Canada.
Your Committee was specifically mandated to study this report with a view
to clarifying access to language rights and their exercise under the Divorce
Act, the Bankruptcy Act, the Criminal Code, the Contraventions
Act and other related acts where applicable.
Your Committee was to report on its proceedings under this Order of
Reference by than May 31, 2003.
Canada commissioned the report entitled Environmental Scan:
Access to Justice in Both Official Languages
track recent developments in language law. A revised version of the report was presented on July 26,
2002. It identifies the needs
specific to each province and territory with respect to access to justice in
both official languages in three areas under federal jurisdiction:
criminal law, bankruptcy law, and divorce and support law.
authors of the Environmental Scan found general dissatisfaction with
legal services in French in these three areas in the nine provinces and three
territories where French is the minority language.
In Quebec, it appears that access to court and legal services in the
minority language (English) in these three areas under federal jurisdiction is
Environmental Scan proposes a variety of approaches to resolving the
specific problems in each province and territory, because each is at a different
stage regarding access to justice in both official languages.
These approaches most notably involve compliance with the language
obligations in the Criminal Code, a stronger coordinating role for
Justice Canada, and the recruitment and training of bilingual legal
TO THE ENVIRONMENTAL SCAN
June 2002, the former Standing Joint Committee on Official Languages published a
report entitled The Justice System and Official Language Communities, in
which it recommended that the federal government:
the Committee by September 30, 2002, of the measures it intended to take in
following up on the Environmental Scan on access to justice in both
in cooperation with its provincial and territorial counterparts, models for
the delivery of judicial services that are most likely to meet the needs of
official language communities;
provincial and territorial governments in implementing the appropriate
institutional structures to ensure that parties to proceedings genuinely
have access to the justice system in both official languages.
November 2002, the government of Canada responded officially to the report of
the Standing Joint Committee on Official Languages.
It said that the responsible Deputy Ministers of Justice had authorised
in the summer of 2002 the creation of a federal/provincial-territorial working
group (“FPT group”), participation in which would be on a voluntary basis.
The FPT group, co-chaired by Justice Canada, was to determine the
mechanisms that should be put in place to rectify the shortcomings identified in
the Environmental Scan, while seeking to adapt the solutions to the
unique circumstances prevailing in each province and territory.
the FPT group was made up of representatives from Justice Canada, Alberta,
British Columbia, Manitoba, Ontario, New Brunswick and Yukon.
Representatives of Nunavut and Saskatchewan, and government officials
responsible for francophone affairs in these various jurisdictions have since
joined the FPT group. Prince Edward
Island has specifically asked to be kept abreast of the FPT group’s progress,
without wishing for official membership at this time. Four other governments are still not represented on the FPT
group: Newfoundland and Labrador,
Nova Scotia, Quebec and the Northwest Territories.
Justice Canada officials
who testified before your Committee on April 7, 2003, noted that the FPT group
has met twice since its creation. Its
mandate, which is for an indeterminate period, has been defined.
In the short term, the FPT group’s activities will focus on bringing
governments and the communities closer together through partnerships, and on
consolidating what has been achieved to date.
These activities will be facilitated by the introduction of a
consultation mechanism designed to bring legal personnel and parties to
proceedings closer together while formulating solutions tailored to the
situation in each region. One of the FPT group’s priorities will be to support the
full implementation of the language obligations contained in the Criminal
Committee notes that the federal Action Plan for Official Languages, released on
March 12, 2003, provides for $45.5 million over five years for access to
justice in both official languages. Of
this amount, $18.5 million will enable Justice Canada to invest in targeted
measures designed to improve access to the justice system in both official
for various projects to be carried out with the assistance of government and
non-government partners; stable funding for French-speaking lawyers’
associations and their national federation; the creation of a mechanism for
consultation with minority official language communities; and the development of
tools for training the Department of Justice legal counsels on language
Justice Canada is also preparing to fund language and legal terminology
training for Crown attorneys, provincially appointed judges and court personnel,
on an ad hoc, decentralised basis, adapted to each region.
Committee is delighted by the work that the FPT group has begun on access to
justice in both official languages to follow up on the findings of the Environmental
Scan. Your Committee also
applauds the funding recently announced in the Action Plan for Official
Languages and the projects that Justice Canada intends to launch with this new
funding. Your Committee notes,
however, that these are only the first steps in the work that needs to be done
and that the coming years will be decisive.
In particular your Committee is concerned about specific aspects of
access to justice in both official languages.
of all, your Committee believes that it is essential for bilingual judges and
court personnel to be available throughout Canada, to ensure access to justice
in the language of minority. The
government must work in collaboration with lawyers’ associations to find ways
of encouraging bilingual law graduates to return to their home regions to
your Committee considers that bilingualism should be one of the selection
criteria in assessing candidates for new appointments to the bench.
Because the lack of bilingual judges is a serious problem in a number of
regions of this country, the eligibility lists drawn up by the various
provincial committees should indicate which candidates meet the bilingualism
criterion. This would give the
Minister of Justice access to an eligibility list of functionally bilingual
lawyers by province and territory, to which he could refer when undertaking the
appointment of new judges. The Minister should definitely have the means to make better
use of the pool of bilingual candidates.
Committee is delighted by Justice Canada’s promise to fund language and legal
terminology training, to be provided on an ad hoc, decentralised basis,
adapted to each region. Language
and legal terminology training should also be made available to all judges and
to all agents who represent the Minister before a court.
Committee finds it disturbing that only between 40 and 60 per cent of judges
inform parties to proceedings, when they are not represented by a lawyer, of
their right to be heard in the official language of their choice. To ensure the application of the provisions in section 530
of the Criminal Code, which guarantee accused persons the right to be
tried in the official language of their choice, it is important to take steps to
ensure a truly proactive offer of legal and judicial services in the language of
the minority. It is important to
bear in mind that in Beaulac, the Supreme Court ruled that language
rights must be given a broad and generous interpretation by the courts.
Justice Canada must see to it that judges are made more aware of these
provisions in the Criminal Code, so that they consistently inform parties
that they have the right to be heard in the official language of their choice.
It would also be desirable that section 530 serve as a model for
extending language rights to bankruptcy, divorce and support cases.
pilot projects have been set up in recent years in Manitoba and Saskatchewan, to
improve access to judicial and legal services in both official languages.
The single-window model (Manitoba), and the launch of a travelling
provincial court staffed by bilingual personnel (Saskatchewan) have both led to
notable improvements in the quality and equality of services offered in the two
official languages. It is vital
that the government make a commitment to support these two pilot projects over
the long term, and that it investigate the possibility of introducing similar
models in other provinces and territories.
your Committee believes it is essential that all legal documentation, such as
charges, be accessible in both official languages in those regions of the
country where this is not already the case.
your Committee makes the seven following recommendations:
That the federal
government encourage representatives of the governments of Prince Edward
Island, Newfoundland and Labrador, the Northwest Territories, Nova Scotia
and Quebec to join the federal/provincial-territorial working group
co-chaired by Justice Canada, because the problem of access to justice in
both official languages also affects these jurisdictions.
federal/provincial-territorial working group develop incentives designed to
encourage bilingual law graduates to return to their home regions to
candidate’s bilingualism be one of the selection criteria in evaluating
nominations for appointments to the bench, and that an eligibility list of
functionally bilingual lawyers in each province and territory be available
for reference purposes.
That the government
offer language and legal terminology training to all judges and all agents
of Justice Canada.
That judges be
always required to inform parties to proceedings that they have the right to
be heard in the language of their choice, and that section 530 of the Criminal
Code be used as a model in extending language rights to bankruptcy,
divorce and support cases.
That the government
make a long-term commitment to support the single-window and travelling
bilingual provincial court pilot projects in Manitoba and Saskatchewan, and
that it investigate the possibility of similar models in other provinces and
That all legal
documentation be available in both official languages in all regions of the
Standing Joint Committee on Official Languages, The Justice System
and Official Language Communities, Ottawa, Parliament of Canada, June
2002, p. 6.
Andrée Duchesne, National Coordinator, POLAJ; Suzanne Poirier,
General Counsel and Coordinator, Francophonie, Justice in Official Languages
and Bijuralism; and Marc Tremblay, General Counsel and Director, Official
Languages Law Group.
Government of Canada, The Next Act: New Momentum for Canada’s Linguistic Duality.
The Action Plan for Official Languages, Ottawa, National Library
of Canada, 2003, p. 45.
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