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The Government Response to the Third Report of the Standing Senate Committee on Official Languages on Environmental Scan: Access To Justice In Both Official Languages

November 2003

The Government is firmly committed to promoting access to justice in both official languages. Furthermore, the Government reaffirmed this commitment in its Action Plan for Official Languages, released on March 12, 2003.

Under the Action Plan, the Department of Justice will devote financial resources of $45.5 million over a five-year period to improve access to justice in both official languages.

The Government has carefully reviewed the recommendations of the Standing Senate Committee on Official Languages and is working on implementing them.

Its response to the recommendations of the Standing Senate Committee on Official Languages takes into account the fact that the administration of justice is a shared jurisdiction. Accordingly, it is important to provide a brief overview of the constitutional and legislative framework in place in the field of administration of justice.

In fact, a series of constitutional, quasi-constitutional and legislative provisions govern the use of English and French before the courts in Canada.

At the federal level, the legal framework provides in particular that English or French may be used by any person in any pleading and process in any federal court (section 133, Constitution Act, 1867) and the obligation to enact and print the Acts of Parliament and other legislative instruments in both official languages (subsection 18(1), Canadian Charter of Rights and Freedoms). Part III of the Official Languages Act, 1988, entitled "Administration of Justice," goes beyond the constitutional obligations and sets out a series of obligations for federal courts and the Government. Furthermore, with respect to criminal proceedings, sections 530 and 530.1 of the Criminal Code, in force across the country since January 1, 1990, guarantee any person accused of a criminal offence the right to have his or her preliminary inquiry and trial before a judge, jury (if applicable) and Crown attorney who speak the same official language as the accused. In addition to the aforementioned provisions, various provincial laws also deal with the use of English and French before the courts of the province or territory.

Therefore, in close cooperation with our government and non-government partners from the provinces and territories, the Government will support the taking of measures that will allow it to contribute to improving access to justice in both official languages.

Recommendation No. 1: The Committee recommends 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.

The federal-provincial-territorial working group on access to justice in both official languages was created following the Federal-Provincial-Territorial Meeting of Deputy Ministers responsible for Justice in June 2002.

The decision whether to participate in the working group is up to each government. In a letter from the Deputy Minister of Justice to his provincial and territorial counterparts, an invitation was extended to join the working group.

New Brunswick, Ontario, Manitoba, Alberta, the Yukon, British Columbia and Nunavut have already participated in this working group during the Committee's work. Prince Edward Island also participated as an observer and Saskatchewan indicated its intention to participate and actually joined since the tabling of the Committee's report. The governments of the Northwest Territories and Nova Scotia have also recently joined.

Participation in this working group remains purely voluntary and the governments that are not already participating can become members of the working group at any time. The Government will keep encouraging the other provinces to join.

Recommendation No. 2: The Committee recommends that the federal-provincial-territorial working group develop incentives designed to encourage bilingual law graduates to return to their home regions to practise law.

The issue raised by the Committee does not fall within the mandate of the federal-provincial-territorial working group (FPT working group), as it was approved in January 2003 by the Deputy Ministers responsible for Justice. In fact, one of the primary tasks of this working group is to consider the Environmental Scan: Access to Justice in Both Official Languages, a study commissioned by the Department of Justice in 2002, with the purpose of providing an overview of access to justice in both official languages for each province and territory, and then to establish, jurisdiction by jurisdiction, a list of priorities and best practices concerning the measures that could be taken to facilitate access to justice in official language minority communities.

The measures that could be taken to encourage bilingual lawyers to return to their home regions should be a private initiative, and come from universities, local bar associations, associations of French-speaking lawyers and groups dedicated to access to justice in the minority language.

This is why the Department plans to create in a near future an advisory committee divided in two subcommittees; one of them on access to justice in both official languages. This advisory subcommittee will allow for exchanges and cooperation with stakeholders in the field, including universities, associations of French-speaking lawyers and local bar associations.

This advisory subcommittee will provide an ideal platform to deal with issues of key interest to stakeholders from various regions in Canada but which do not necessarily fall within the context of public administration, and to find solutions that respect the unique needs and demands of these stakeholders. It would, moreover, be the counterpart of the FPT working group, whose members represent government authorities.

Accordingly, the Department will benefit from a more complete overview in order to target its actions, establish its priorities and develop partnerships that are most likely to promote access to justice in both official languages.

Recommendation No. 3: The Committee recommends that a 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.

The appointment of judges to provincial and territorial superior courts, as well as courts established by the federal Parliament (the Federal Court of Canada and the Tax Court of Canada), is the responsibility of the federal government. These judicial appointments are made by the Governor General on the advice of Cabinet, based on the recommendation of the Minister of Justice.

The current Federal Judicial Appointments process establishes Advisory Committees in every province and territory. Each Committee consists of a total of seven members drawn from the bench, bar and general public. The Minister of Justice selects members to ensure that the committee composition reflects a range of factors appropriate to each jurisdiction including geography, gender, language and multi-culturalism.

The primary consideration of a candidate's qualification is professional competence and overall merit. Each Committee is provided with a list of criteria relating to professional capacity and experience, personal characteristics and social awareness. Bilingual capacity is one of the established criteria.

Advisory Committees are encouraged to actively pursue the objective of achieving a diverse judiciary whose members broadly reflect the society that they serve. Consultations with informed persons with respect to a candidate's community involvement, as well as professional experience and personal capacity, are a key part of the Committee process.

Recommendation No. 4: The Committee recommends that the Government offer language and legal terminology training to all judges and all agents of Justice Canada.

Under the Canadian Charter of Rights and Freedoms, the Official Languages Act and the Official Languages (Communications with and Services to the Public) Regulations, agents of the Attorney General of Canada, in their communications with members of the public, have the duty to communicate with and provide services to them in the language of their choice.

It should be noted that the Agent Unit, in cooperation with the Official Languages Law Group of the Department of Justice, has established conditions for the appointment of agents under which the agents are fully informed of the language requirements they need to meet under Part XVII of the Criminal Code (which deals with the language of the accused) and Part IV of the Official Languages Act (which deals with language requirements in communications with and services to the public).

The language abilities of candidates as agents of the Attorney General of Canada are part of the selection criteria that are evaluated based on the linguistic composition of the judicial districts for which an appointment is being considered. For efficiency purposes, in cases requiring specific language abilities, the Federal Prosecution Service recommends the appointment of "ad hoc" agents that possess the required language abilities.

The Department is of the opinion that, within the existing legal framework, agents can provide services in the language chosen by the party to the proceedings, provided there is a timely request made under section 530 of the Criminal Code.

With respect to civil proceedings before a federal court, it is understood that the Crown agents must use, in any oral or written pleadings, the official language chosen by the other parties, in accordance with section 18 of the Official Languages Act. When a party to civil proceedings before a provincial or territorial court where the use of either official language is allowed, it is the Department's standard policy to use the language of the other party in its pleadings, although there is no legal duty to do so. This policy applies both to Department's counsel and its agents.

Moreover, under the Action Plan for Official Languages, the Department of Justice created the Access to Justice in Both Official Languages Support Fund. In accordance with the objectives of this Support Fund, the Department will be receptive to projects involving up-to-date language training and training in legal terminology for the legal community, including provincially appointed judges. Owing to the nature and scope of the cases dealt with by the provincial courts (98 percent of criminal cases are heard by these courts), and based on the findings of the Environmental Scan, the language issue would seem to be the most problematic at the provincial court level.

Furthermore, since 1980, the federal government has been developing training and jurilinguistics tools for French-speaking lawyers practising common law through the National Program for the Integration of Both Official Languages in the Administration of Justice (POLAJ). The Program's activities will continue under the Support Fund and include the development of lexicons and dictionaries, legal literature and practitioner's guides.

Finally, the advisory subcommittee on access to justice in both official languages that will be created by the Department will provide an even more effective means of encouraging partnerships with stakeholders in the field, including the centres for jurilinguistics.

Recommendation No. 5: The Committee recommends 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.

It should be mentioned that access to justice in both official languages is one of the priorities set out in the Action Plan for Official Languages. Also, the Department plans to make the actual implementation of the language provisions in the Criminal Code one of its priorities.

In fact, a number of studies, including the Environmental Scan, revealed that parties to proceedings, their counsel and Government representatives responsible for the administration of justice in Canada are often not aware of the language rights guaranteed in sections 530 and 530.1 of the Criminal Code. As a result, they seldom exercise these rights or do not exercise them in a timely fashion. Moreover, parties to proceedings sometimes do not succeed in having these rights enforced.

The Department is considering the possibility of amending certain provisions of the Criminal Code to require judges to inform accused, whether represented by counsel or not, of their language rights. The proposed amendments will represent a good example of active offer for legal and judicial services in both official languages.

The Access to Justice in Both Official Languages Support Fund, created in the wake of the Government Action Plan, will among other things serve to make parties to proceedings and stakeholders in the justice system aware of the issues related to access to justice in both official languages.

The Department will continue to ensure that the family justice services provided by the federal government are offered in both official languages. Among these services are a toll-free information line, a bilingual Internet site and publications for parents and the legal community.

Under the terms and conditions of the contributions agreement for the Child-centred Family Justice Strategy, the provinces and territories will have to show in their project how they intend to meet the policy objective of increasing access to justice for members of official language minority communities.

The federal government will also continue the expansion of unified family courts. The participating provinces will have to make a commitment to reinvest the savings made on judicial salaries into family justice services and will have to indicate how they intend to reinvest these savings in order to increase access to justice for members of official language minority communities.

As the law now stands, divorce proceedings are under the jurisdiction of the provincial courts. These courts are subject to the language legislation of the provinces and territories, not to the Official Languages Act. This also applies to bankruptcy.

Nevertheless, other measures should be considered in order to make the language rights in the Criminal Code better known and to invite parties to proceedings to invoke their rights. In fact, our consultations have shown that cooperation between the various levels of government and the various organizations working in the administration of justice is key to the success of any efforts to increase awareness and education.

This cooperation extends to the provincial bar associations. Therefore, to mention only two examples, the Law Society of Upper Canada's convocation decided, in June 2001, to specify the obligations of Law Society members with respect to the information that they must give to their clients regarding their language rights. This specification was added to the code of ethics. The New Brunswick Bar Association recently adopted the same provisions.

Furthermore, a recent amendment to the regulation incorporating the Ontario offence scheme ensured that judges are required to inform accused individuals who are not represented by counsel of their language rights, in cases where proceedings are instituted under the Contraventions Act. For the time being, this requirement only applies in Ontario, but the Department intends to extend it to other provinces and territories whose offence schemes do not already include such a requirement.

However, the Department of Justice does not currently plan to make legislative amendments to federal civil statutes, but will continue to consult its provincial and territorial counterparts. The Department is of the opinion that the progress of language rights with respect to federal civil statutes before provincial courts should be achieved through administrative agreements between the federal, provincial and territorial governments, because any initiatives in these fields by the federal government will have a corresponding impact on the legislative jurisdiction of the provinces.

Recommendation No. 6: The Committee recommends 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 territories.

It is important to remember that the federal government does not have jurisdiction over provincial courts. However, for many years now the Department of Justice has already been supporting the government of Manitoba's efforts to establish a bilingual service centre in Saint-Pierre-Jolys.

Furthermore, the establishment of travelling provincial courts is the responsibility of the provinces. Should such a project take on, after consultation by the federal government with its government and non-government partners, a priority importance, the Department will examine methods of supporting it while taking into account the departmental resources and priorities identified by the Department to improve the administration of justice in both official languages.

The Government is firmly committed to making it a priority to meet the language requirements in the Criminal Code and to encourage projects that are submitted to it in this respect under the Support Fund.

Moreover, the Access to Justice in Both Official Languages Support Fund will be used for, among other things, entering into partnerships with government and non-government organizations for the implementation of measures to obtain lasting improvement to access to justice in both official languages.

Recommendation No. 7: The Committee recommends that all legal documentation be available in both official languages in all regions of the country.

This is a very general recommendation in that it appears to include all forms of legal documentation. The response is put within the context of the Environmental Scan, that is legislation, legal literature, pleadings and case law.

In the context of criminal law, various provisions of the Criminal Code contain language rights and obligations. For instance, paragraph 530.1(h) of the Criminal Code requires that written decisions shall be available in the official language of the accused. Furthermore, subsection 841(3) of the Criminal Code requires that pre-printed portions of a form set out in Part XXVIII of the Code, such as information and indictments, shall be printed in both official languages. This obligation exists independently of the official language of the accused or the language chosen for the trial. The Department is of the opinion that language rights are respected in this legal framework, sometimes automatically, sometimes after a timely request has been made in this respect.

Furthermore, any legal documentation from the Federal Prosecution Service, including charges to be laid against offenders, is available in either official language, depending on the language chosen by the accused.

As to the contraventions prosecuted by ticket, all the current agreements on the implementation of the Contraventions Act concluded with the six provinces in which the contraventions scheme is in place, include specific provisions dealing with the language of the pre-printed portion of forms used to prosecute contraventions. The same approach will be taken for agreements that will be concluded with the other provinces and territories.

With respect to civil proceedings before a federal court, the Official Languages Act provides that the final decisions of courts must be rendered in both official languages and requires the federal government and federal institutions to use, in any civil proceeding to which it is a party, the official language chosen by the other parties. This obligation applies to any oral or written pleadings.

For more than 20 years, POLAJ has seen to the development of legal tools in both official languages, in particular through four centres of jurilinguistics, all associated with a university or a university college: the Centre de traduction et de terminologie juridiques at Université de Moncton, the Centre for Legal Translation and Documentation at the University of Ottawa, the Institut Joseph-Dubuc, which is affiliated with the Collège universitaire de Saint-Boniface, and the Quebec Research Centre for Private and Comparative Law at McGill University. These centres are responsible for the development of tools for jurists who serve official language minority communities (lexicons, dictionaries, legal literature and practitioner's guide) and the Government provides them with some funding for this purpose. Specifically under the Access to Justice in Both Official Languages Support Fund, this funding will be slightly increased.

Moreover, the Department counts on the cooperation of jurisdictions and stakeholders to target and develop tools that will improve access to justice in both official languages. For this purpose, it will consult with the FPT working group and the advisory subcommittee.