Environmental Scan: Access to Justice in Both Official Languages
The Environmental Scan: Access to Justice in Both Official Languages reflects a very complex set of problems that vary from one jurisdiction to another. In general, members of official language minority communities who appear before the courts often encounter difficulties of one kind or another, or barriers to access to justice in their language. However, it seems that the lower the minority community's demographic weight in a jurisdiction, the more difficult it is for the members of that community to exercise their language rights in the courts.
A New Legal Framework
The recent decisions of the Supreme Court, and particularly the decisions in Beaulac and Arsenault-Cameron, mark a significant shift in the law as it relates to access to justice in both official languages.
In Beaulac, The Court went beyond the principle of formal equality and applied what was, in fact, a concept of real and substantive equality. In that decision, the highest court in the land said that in language law, the principle of equality is not a narrow one, and must be given true meaning. The Supreme Court thus held that the objective of protecting language rights is no different from the objective of protecting other fundamental rights. The State therefore has a duty to take positive measures to give effect to the language guarantees it has made and to the distinct role of those guarantees, which is
"to protect official language minorities in this country and to insure the equality of status of French and English". After disproving the argument that language rights result from a political compromise and should therefore be interpreted restrictively, the Supreme Court concluded that the rule of interpretation that must be applied in all cases is that language rights must, in all cases, be interpreted purposively, in a manner consistent with the preservation and development of official language communities in Canada.
In Arsenault-Cameron, the Court pursued and expanded this line of thought. It reiterated the principle that language rights must in all cases be interpreted purposively, in a manner consistent with the preservation and development of official language communities in Canada, and affirmed that the objective of language rights is to redress past injustices suffered by the minority community. It thus concluded, that in the exercise of their discretion, governments have an obligation to comply with the provisions of the Charter. To that end, they must
"give proper weight to the promotion and preservation of minority language culture" and
"full regard to the remedial purpose" of language rights.
These advancements by the Supreme Court provided the general background for this study, whose purpose was to do an environmental scan concerning access to justice in both official languages that would be as detailed as possible.
In its recent judgments, the Supreme Court has reminded Canadians that the right to use French and English in the courts is one of the fundamental rights recognized in our Constitution. It is one of the pillars on which Canada is founded. Not only is it the foundation of a particular conception of our society as a democratic and just society, but it is also an ideal that we aspire to attain.
The Environmental Scan: Access to Justice in Both Official Languages documents the difficulties and barriers that make it difficult, in practice, for that ideal to take root.
As a number of studies, including this one, have shown, equal access to high quality judicial and legal services in both official languages is a contributing factor in completing the plan for a society that, in this respect, remains unfinished.
While some progress has been made, particularly with the creation of common law programs in French at the Université de Moncton and the University of Ottawa in the late 1970s, the Canadian Charter of Rights and Freedoms in 1982, the Official Languages Act of Canada in 1988, and the enactment of sections 530 and 530.1 of the Criminal Code in 1985 and 1990, there are still discrepancies between the stated principle of access to justice by members of both official language communities in the courts and the application of that principle in reality.
As this study suggests, that discrepancy is a real and evident one. However, for a number of reasons, both methodological and ideological, it is both a difficult situation to describe precisely in quantitative terms and a delicate one to characterize qualitatively.
Barriers to the Exercise of Language Rights in Official Language Minority Communities
A number of studies done before this one have reported the gaps in the judicial system's fulfilment of its obligations in respect of access to the courts in both official languages. Most of those studies, including this one, have made the same finding: that members of official language minority communities who appear before the courts encounter a number of difficulties in accessing the judicial system in their own language. The scope and nature of those difficulties vary widely from one jurisdiction (territory, province or judicial district) to another. A number of factors may contribute to the disparity, one of which is the division of powers between the federal and provincial governments in the area of the administration of the courts and the implementation of language rights.
In addition to the disparity in the institutional arrangements for the implementation of language rights from one jurisdiction to another, official language minority communities find themselves in very different situations from one region to another. For francophone minority communities, we cannot but observe that their demographic weight and political weight vary enormously between provinces, territories and judicial divisions.
Although this situation is already perfectly obvious, we have attempted to document it and analyse it using both quantitative and qualitative data collected as systematically as possible. We did this as vigilantly as possible, and using the most rigorous methodology possible in order to obtain a spectrum of respondents who are very familiar with the situation in their jurisdictions.
We therefore sought to assess the accessibility of the judicial system for official language communities. We found that, particularly in certain situations, where the official language minority is concentrated in an area and comprises a certain critical mass, there are sufficient numbers of individuals from that community appearing in the courts to support a judicial system that functions in the minority language. As well, those individuals tend to request services in their own language.
When the official language minority is numerically small in a judicial district, not many individuals from the minority appear in the courts, and they hesitate to request services in their own language. In general, if demand is low, the supply of services in the minority language is also low. In preparing this Environmental Scan, we found that the availability of judicial and legal services also varies with the demographic weight of the official language minority communities.
In some jurisdictions, particularly those where the official language minority is numerically small, there is a tendency to say that the low number of requests for judicial and legal services in the minority language justifies a somewhat limited supply of services. This position resembles what we might call the logic of the marketplace, in that it involves basing supply on demand.
It seems to us, however, that from the standpoint of the Department of Justice of Canada it is coming at the question the wrong way to consider it from a strictly market-oriented angle, as if access to judicial and legal services in the language of the official language minority ought to follow the economic law of supply and demand.
There is another perspective, the one adopted by the Supreme Court and the Office of the Commissioner of Official Languages, which holds that this is, first, a matter of law. It seems to us that this is the perspective that was adopted by the Department of Justice of Canada when it commissioned this study. That approach imposes obligations on the judicial system and the government to make services available in the minority official language. This justifies, for example, the idea of a genuine policy for active offer of judicial and legal services in the minority official language.
From that standpoint, the supply of services in the minority official language must not be determined simply on the basis of demand. Having regard to the perception and existence of the negative impact of proceeding in the minority official language (additional time and costs, mainly), and the possibility of greater difficulty in accessing the judicial system and the documentation in that language, it is not surprising that individuals appearing before the courts, and especially francophones, do not spontaneously exercise their right to proceed in their own language.
In addition to the strategic and practical considerations involved in deciding whether or not to proceed in the minority official language, broader socio-historical and socio-political factors also play a role.
For example, there is the question of assimilation. The fact that some, or many, francophones in minority communities, depending on the situation, choose to proceed in English because, for example, of their fear of not properly understanding their trial if it was held in their own language, is a serious concern. While this leads to an apparently uneventful integration into a system defined by and for the majority language community, it does however damage the individual's identity, the identity of the minority language community, and the political community as a whole since it calls into question the integrity of a system that is based on linguistic duality.
In other words, the reason for the development of the concept of "remedial justice", in which active offer of services should be required, was to provide a more solid foundation for official language minority communities whose position is still insecure. The data in this study support the Supreme Court's assertion that the accused's right to a trial in the official language of his or her choice is not an "exceptional favour" given to the accused by the State; "it is the norm".
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