Canada-Wide Analysis of Official Language Training Needs in the Area of Justice

2.0 The training context in the area of justice

This section provides an overview of criminal court proceedings and the obligations relating to the delivery of services in both official languages. Obviously, it is not intended to provide a complete picture, but rather a context for better understanding the training needs and the recommended means of addressing them.

2.1 The main stakeholders[2]

Every year in Canada, numerous Criminal Code offences are committed, mobilizing many stakeholders in the justice system. The most recent statistics on crime and criminal courts clearly show the scope of their work:

While a criminal court case can take many twists and turns, there are generally four main stages, shown in Figure 1

Charge:
It is essentially the charge that sets in motion the process that may lead to a criminal court proceeding. Usually, a police officer lays an information charging an individual with commission of a crime. In some circumstances, other enforcement authorities may also lay an information. The charge may or may not involve an arrest. If warranted in the circumstances, a police officer may issue the accused a summons to appear in court to answer to a charge, in which case no arrest is made. When an arrest is made, the police must first inform the detainee of his right to speak to a lawyer and must do their utmost to have the detainee brought before a judge or justice of the peace as soon as possible for a bail hearing. This hearing will determine whether or not the accused will be held in detention until his first court appearance.
First appearance:

Once the police have laid an information against an individual, the Crown takes over the case and decides whether or not there are grounds to prosecute. If there are, the Crown must generally decide whether to proceed by summary conviction or by indictment.[7] Indictment is reserved for more serious crimes. For example, in a case of impaired driving, it may be desirable to distinguish between someone charged with driving with a blood alcohol level of 10 milligrams per 100 millilitres of blood over the legal limit and someone driving their vehicle in a school zone, in the afternoon, with a blood alcohol level nearly three times the legal limit. The penalty for an indictment is harsher than the penalty for a summary conviction, and it is up to the Crown to decide on the appropriate procedure.

The first court appearance of the accused will also be conducted according to the type of court hearing the case. Certain offences must be tried by a provincial court judge. In those cases, the accused enters a plea of guilty or not guilty to the charge against him. Certain very serious offences, such as murder, must be tried by a superior court judge. In those instances, a preliminary inquiry will first be held before a provincial court judge, who will determine whether or not there is sufficient evidence to warrant a trial. The accused must enter a plea of guilty or not guilty at the conclusion of the preliminary inquiry. In other instances, the accused can choose to be tried by a provincial court judge or a superior court judge, with or without a jury. This choice will determine whether or not a preliminary inquiry will be held.

Trial:
The trial is the occasion for the Crown and the accused (whether or not he is represented by a lawyer) to present their respective versions of the facts and, if there is a conviction, to recommend an appropriate sentence based on the circumstances of the crime. Criminal trial proceedings can be very complex and involve a number of participants besides the judge and lawyers, such as representatives of crime victim services or probation officers, and the latter may be asked to prepare a pre-sentence report if there is a conviction.
Follow-up:

Obviously, follow-up depends on whether or not the accused is found guilty of the offence for which he has been tried. If the verdict is not guilty, the accused is simply released from detention. If the accused is found guilty, the judge then has several sentencing options, such as a discharge (absolute or conditional), a suspended sentence with probation, a fine or incarceration (followed by a period of probation).

Figure 1 lists the main stakeholders of the judicial system who will be involved at various stages of a criminal trial. We would point out that this list is not exhaustive.

Figure 1: Main stages of a criminal trial

Main stages of a criminal trial

[ Description ]

Table 1: Role of stakeholders according to the stages of a criminal trial
Key stakeholders Stages of the trial
Charge Detention First appearance Trial Incarceration Follow-up
Police officer x x   x    
Judge     x x    
Justice of the peace     x      
Lawyer (prosecution)     x x    
Lawyer (defence)     x x    
Clerk     x x    
Court reporter     x x    
Bailiff/Sheriff     x x    
Correctional Service   x     x  
Probation officer       x x x
Registry officer       x    

The exact role of each stakeholder varies depending on the circumstances. These roles are briefly defined as follows:

Police officer:
As a rule the police officer is responsible for laying the charge, which may or may not involve an arrest.[8] It is therefore the police officer who has the initial contact with the accused. In Canada, there are a number of police forces that report to municipal, provincial or federal authorities. The Royal Canadian Mounted Police (RCMP) sometimes provides policing services under contract to a provincial or municipal government. The police officer also participates at the trial relating to the charge he has laid as a witness. The police officer is often called upon to play a major role in explainingto the victims of crime the judicial process, a process that is very often unknown to the victims.
Judge:
The judge is the central authority of all criminal trials. A criminal case will first be heard by either a provincial court judge or a superior court judge, depending on the procedure chosen by the Crown prosecutor or the accused (summary conviction or indictment before a judge only or before a judge and jury). We would again point out that the vast majority of criminal trials are tried by a provincial court judge.
Justice of the peace:
The role of justice of the peace is changing significantly and varies depending on the location and the jurisdiction. Basically, it is the job of the justice of the peace to further the efficient administration of justice by presiding at certain stages of a trial and rendering certain decisions. [9] Since a justice of the peace does not necessarily have legal training, his decisions are based essentially on an interpretation of the facts presented to him, and not on the analysis of a point of law. Thus, in criminal law, and depending on the jurisdiction, the justice of the peace may be asked to preside at the accused's first court appearance, to rule on his release on bail or to issue search warrants. He may also preside at certain preliminary inquiries.
Lawyer for the prosecution:
The lawyer for the prosecution, commonly known as the Crown prosecutor, represents the State and is responsible for proceeding against the accused on an indictment. It is mainly provincial Crown prosecutors (accountable to the provincial attorney general) who prosecute a Criminal Code offence. The role of federal Crown prosecutor usually centres on prosecutions under other federal laws, such as the Controlled Drugs and Substances Act. In the three territories, it is federal Crown prosecutors who are responsible for prosecuting offences under the Criminal Code.
Lawyer for the defence:

An accused may represent himself in court or rely on the services of a lawyer. If he uses a lawyer, the accused may retain a lawyer in private practice and pay the costs himself, or he may resort to legal aid. If legal aid is requested, a number of criteria will be applied to determine the eligibility of the accused for legal aid services, such as his income and the merits of his case. In financial year 2007-2008, Canadians made a total of 319,386 requests for legal aid in criminal cases, of which 263,982 were approved.[10]

A word about duty counsel services. In all of Canada's provinces except Quebec, legal aid services offer the services of a duty counsel. These services are usually made available at the courthouse and are intended to provide summary assistance to people who have no legal representation and are about to appear in court. Similarly, all legal aid services offer summary assistance around the clock to individuals who have just been arrested and placed in detention. This service is usually provided over the telephone.

Clerk:
In a criminal law context, the duties of the clerk are to support the work of the court and help ensure that court hearings run smoothly. Often described as the judge's “right arm”, the clerk prepares the trial docket, manages the evidence, swears in the witnesses, prepares the record of proceedings, helps draft orders and performs any other related duties. We would point out that the clerk's exact role varies considerably from one jurisdiction to another, and even within a given province or territory, depending on the number of cases being heard, the procedural rules of the court and the roles of other court employees.
Court reporter:
The digital recording of courtroom discussions has considerably altered the role of the court reporter. Here too, the situation varies greatly from one jurisdiction to another. Some courtrooms still use court reporters, and it is their job to oversee the recording of proceedings and to take notes to assist with the transcription of the tape, if necessary. In other courtrooms, it is the clerk who oversees the recording of court proceedings.
Bailiff:
Still in the criminal context, the role of bailiff is largely concerned with security. As with the clerk and the court reporter, the exact duties of the bailiff vary from one region of the country to another. In Quebec, for example, a bailiff called the court usher (huissier-audiencier) is responsible for maintaining order and ensuring that courtroom proceedings run smoothly. In several other jurisdictions, the bailiff is responsible for the security of the entire courthouse. It is the bailiff who inspects or searches people as they enter the courthouse and provides security inside the courtroom. In some cases, the bailiff is also responsible for transporting and escorting prisoners to and from court appearances (in some locations, the police perform this role). Finally, the bailiff may be asked to place under arrest someone appearing at a court office in response to an arrest warrant.
Correctional services:
Once the police make an arrest, the accused is turned over to correctional services, which are responsible for his detention. Detention, whether pending trial or following a guilty verdict, is the responsibility of correctional service officers. Depending on the sentence, a person found guilty of a crime will be held in either a provincial prison (sentences of under two years) or a federal penitentiary (sentences of two or more years).
Probation officer:
The probation officer becomes involved when the accused is conditionally released, either pending trial or after sentencing. The probation officer maintains contact and meets with the accused or the convicted person and ensures that he complies with the terms of his release. If these conditions are violated, the probation officer may be asked to issue an arrest warrant. We would also point out that the probation officer may be asked to write a pre-sentence report, which the judge will take into consideration when determining the sentence.
Registry officer:
The registry officer performs various administrative duties related to the cases tried in court and delivers services directly to the public. The registry officer may therefore be asked to enter data in the databases used to manage the court files. The registry officer may also serve members of the public who go to the registry office to ask a question about their case, pay a fine or act on a judgment.

2.2 The obligations with respect to official languages

The administration of justice in both official languages in Canadian courts makes sense from the standpoint of the division of legislative powers but not necessarily from that of services to the public. Consequently, the obligation of criminal courts to provide services in both official languages varies depending on the region, the court, the nature of the case and whether communication is taking place inside or outside the courtroom and the judicial process. This subsection presents these findings in greater detail.

The division of powers

The federal and provincial governments both play a part in the organization and delivery of criminal law services.

The provincial governments have the primary responsibility for the administration of justice in their respective jurisdictions. As Table 2 shows, the legislative assembly of each province has the power to create, organize and maintain criminal courts, notably the provincial and supreme courts. The provincial governments also appoint the judges who sit on the provincial court, which is the court that tries the vast majority of criminal cases.

The federal government's role centres on the creation of criminal offences. The Parliament of Canada alone has the power to create criminal offences, most of which are contained in the Criminal Code. Some criminal offences are contained in other enactments, such as those relating to the use and trafficking of narcotics. The federal government's role in the administration of criminal justice is clearly defined. It is responsible for appointing superior court judges and for enacting criminal procedure.

Table 2: Division of powers (1st instance, criminal law)
Federal Areas Provincial
x Creation of criminal offences  
  Creation of courts (provincial court/supreme court) x
  Organization of these courts x
  Maintenance of these courts x
  Appointment of judges: provincial court x
x Appointment of judges: supreme court  
x Criminal procedure  

Source: Sections 91 and 92 of the Constitution Act, 1867.

The obligations set out in the Criminal Code and in the Official Languages Act

By virtue of its power to enact criminal procedure, the Parliament of Canada has granted all Canadians the right to use English and French during criminal proceedings. Part XVII of the Criminal Code (sections 530 to 533.1), reproduced in full in Appendix A of this report, describes the circumstances in which one or both official languages are used. The following points are relevant for the purposes of this study:

While the Criminal Code is the primary source of language rights applicable in criminal matters, it is not the only source. The Official Languages Act also governs certain stakeholders such as the Royal Canadian Mounted Police (RCMP) and federal penitentiaries (prison terms of two or more years). Since both are federal institutions, they must meet all obligations under the Official Languages Act.

The RCMP sometimes provides policing services under contract to a provincial or municipal government; it has an obligation to deliver services in both official languages within the relevant areas defined by the Official Languages Act, and its obligation in the rest of the jurisdiction is determined by the contracting provincial or municipal government.[11]

Additional obligations

The use of official languages is not confined to the criminal sphere. In some jurisdictions and in certain circumstances, Canadians have the right to use English and French in civil and family matters, or even in matters of administrative law. Thus, the Canadian Constitution guarantees the right to use both official languages in all federal courts and in the courts of New Brunswick, Quebec and Manitoba. In other provinces, such as Ontario, Saskatchewan and Alberta, certain language rights are established by statute. Finally, we would note that both official languages may be used in proceedings in all three of Canada's territories.

The recognition of language rights in civil and family law has an indirect, but no less real impact on the obligations in criminal law. The institutional capacity of a province or territory to provide services in both official languages in civil and family matters may facilitate the delivery of bilingual services in criminal matters.

2.3 The notion of the institutionally bilingual court

With the experience gained since the coming into force, in 1990, of Part XVII of the Criminal Code (Language of Accused) has come a better understanding of its operational impact. The provinces and territories have a duty, in criminal matters, to offer Canadians equal access to judicial proceedings in the official language of their choice.

Under the Criminal Code provisions governing the language of the accused, provinces and territories have an obligation to establish criminal courts that are “institutionally bilingual”. The Supreme Court of Canada leaves no doubt as to the degree of bilingualism required: there must be true equality of English and French, without regard to any administrative inconvenience this may cause:

I wish to emphasize that mere administrative inconvenience is not a relevant factor. The availability of court stenographers and court reporters, the workload of bilingual prosecutors or judges, the additional financial costs of rescheduling are not to be considered because the existence of language rights requires that the government comply with the provisions of the Act by maintaining a proper institutional infrastructure and providing services in both official languages on an equal basis. As mentioned earlier, in the context of institutional bilingualism, an application for service in the language of the official minority language group must not be treated as though there was one primary official language and a duty to accommodate with regard to the use of the other official language. The governing principle is that of the equality of both official languages.[12]

Another important point, concerning the ability of the accused to speak both official languages, deserves special mention. According to the Supreme Court, "[t]his ability is irrelevant because the choice of language is not meant to support the legal right to a fair trial, but to assist the accused in gaining equal access to a public service that is responsive to his linguistic and cultural identity."[13] The ability of an accused to speak both official languages therefore cannot be invoked to justify a denial to proceed in the official language of his choice. This point is especially important in a minority language community.

Finally, we would point out that a failure to meet the obligations entrenched in the Criminal Code must be deemed a substantial wrong, not a minor irregularity. To cite the Supreme Court of Canada, “there must be an effective remedy available for breach of s. 530 rights,” [14] which may include holding a new trial. Here again, the ability of the accused to understand the official language in which the proceeding is conducted, if it is other than the one he has chosen, in no way diminishes the need to provide an effective remedy.

2.4 To summarize

As this study concerns the training of criminal justice stakeholders, following is a summary of the impact of language provisions on each of the main categories of stakeholders:

Police officers:
The obligation of a police officer to communicate directly with the accused in one or the other official language is largely determined by the police force to which the officer belongs and its obligations under federal, provincial or territorial legislative and administrative provisions. It should be recalled that RCMP officers must, as a minimum, provide bilingual services in all instances stipulated by the Official Languages Act (Part IV). A police officer called to testify in court may, however, use the official language of his choice and is entitled to an interpreter.
Judges and justices of the peace:
Provincial and superior court judges and justices of the peace must be able to try a case in the official language chosen by the accused. The judge must have the ability to understand this language directly (without an interpreter) and to communicate with the accused in that language. The judge is also responsible for ensuring that every accused is informed of his right to proceed in either official language. [15]
Prosecution lawyers:
Like judges, Crown prosecutors must be able to proceed in the official language chosen by the accused. They must be able to understand and communicate directly in this language. [16]
Defence lawyers:
In principle, defence lawyers have no obligation to communicate in the language of the accused. The defence lawyer may file his documents in either official language and is entitled to an interpreter. If the lawyer works full-time for legal aid, he may be required to provide his services in both official languages, depending on the provisions established by the relevant provincial or territorial government.
Clerks and court reporters:
When working in the context of a bilingual proceeding or a proceeding conducted in the minority official language, clerks and court reporters must be able to understand the proceedings at hearings, to prepare the documents pertaining to these hearings and to communicate with the public. In many cases, the clerk is asked to draft the judge's order and explain it to the accused. This must be done in the official language of the accused.
Other (registry officers, bailiffs, correctional services, probation officers):
While the extent of the language obligations of other stakeholders seems less clear, the fact remains that they are required to work in a bilingual environment. Their ability to communicate in both official languages plays a supporting role to that of the other stakeholders.