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

5.0 Priority strategies

This section of the report describes the strategies that seem most promising for meeting the training needs identified. We would recall that the terms of reference for this study were, first and foremost, to recommend to the Department of Justice Canada parameters to guide its action in the broad areas identified in the Roadmap for Canada's Linguistic Duality 2008-2013. The purpose of this report is not to dictate the action stakeholders should take or to describe in detail which initiatives the Department should support. Rather it is to describe the kind of interventions that will strengthen training activities already under way and address those areas where the needs have, at best, only marginally been met.

5.1 Guiding principles

Before discussing more specific courses of action, it is appropriate to establish the principles that guide these courses of action. Essentially, stating these principles will provide a better understanding of the more specific proposals that follow, by articulating broader considerations.

There are four guiding principles:

Targeted intervention:
This study is not without a context: quite the contrary. An investment of $20 million over five years is significant, yet it alone cannot meet all the needs identified in this study. It is therefore essential to target this new federal investment effectively if it is to help produce the desired outcomes, within the current five-year funding period.
The compensatory effect:
It is important to recognize that in many respects, official language training activities in the area of justice should help bring about a systemic correction to meet an intermittent demand in the minority official language. Very few courts in the country operate day-to-day in both official languages. More likely, one language predominates in the activities of courts and within their administrative structures. Yet the Criminal Code provisions regarding official languages are quite clear: in demographic terms, there may be a dominant language and a minority language, but both have equal standing in the criminal court system. Thus, equality of status must often be joined with demographic inequality. Certain initiatives are therefore necessary in order to provide a compensatory effect. It is precisely this purpose that training can serve. Besides developing new language skills, training activities help to keep the stakeholder connected to his second official language in the workplace.
Building on language retention:

Federal government action should systematically target stakeholders who are already functional in both official languages. Those who are not should have access to language training, but this training should not be funded by the initiative considered in this study. For the federal investment to help achieve the objectives set out in the Roadmap for Canada's Linguistic Duality 2008-2013, it must first and foremost provide stakeholders who are functional in both official languages with opportunities to use this knowledge in their work environment. The language profile of justice stakeholders confirms that a significant number of them are able to communicate in both official languages. The federal investment should therefore target this group.

We would stress that this target group must include members of both the minority and the majority language communities. In other words,training activities should enable both francophones and anglophones living, for example, in Winnipeg, to develop their ability to work in both official languages. It is possible that a Franco-Manitoban who has studied at an English-language university and practised law exclusively in English is as much in need of improving his workplace proficiency in French as someone whose first official language spoken is English and who is also proficient in French.

Vary the intensity of the intervention:
It seems essential to link intensive learning and regular learning activities. At the personal level, the degree of success will vary greatly from one individual to the next. In other words, if a stakeholder participates in an intensive learning activity, such as a training session over five consecutive days, he may not retain much of what he learns in the medium term if he has no access to other, regular learning activities. Similarly, providing access to half-day sessions or to an on-line language training tool may have limited success if the stakeholder never has an opportunity to immerse himself in more intensive learning activities for developing workplace proficiency in his second official language.

These, then, are the principles that guide the subsections that follow.

5.2 Basic training

It is evident that there is a problem of access to basic training to enable justice stakeholders to work in both official languages. The extent to which the new federal investment can rectify this situation may, however, be limited. Hence the significance of the guiding principle of well-targeted government action mentioned earlier.

Legal training

One area deserving particular attention is the legal training that is currently available. Canada is widely known for its unilingual law programs, offered in one of the official languages. The majority of lawyers in Canada therefore receive their common law training in English and their civil law training in French. There are 5 French-language civil law programs, plus the English-language civil law program (bilingual) at McGill University. On the common law side, there are 13 English-language programs, plus the French-language programs of Université de Moncton and University of Ottawa.

The French-language common law programs and the English-language civil law program are currently the only opportunities for law students to take this training in the other official language. More relevant still is the fact that these programs allow students to take courses aimed specifically at developing bilingual proficiency in legal vocabulary. It will be recalled, however, that only a minority of the country's lawyers receive their training in these programs.

Law schools could be asked to play a much more active role in training law students in the application of both official languages to the practice of law. This expanded role would also more truly reflect the language profile of the young Canadians who enrol in law schools, a growing number of whom are already able to communicate in both official languages.

Proposed strategy 1: The country's law schools should consider offering courses specifically in the practice of law in both official languages. Partnerships between law schools would seem entirely appropriate in the circumstances.

The special case of legal translators and court interpreters

There seem to be no major problems in accessing quality legal translation services. Several jurisdictions in the country rely on private companies for the translation of legal documents, while others, such as Manitoba, employ full-time translators. Access to qualified translators in the area of justice is facilitated by the fact that the work of translating does not require the translator to be in the same location as the client (be it a court, a law firm, or a legal aid office). Instead, the main challenge is finding skilled legal translators. The study consultations certainly confirmed the critical role played by translators, but raised no major concerns about access to these services.

Court interpreters are an entirely different matter. There are serious, even disturbing, problems accessing skilled interpreters in several jurisdictions of the country. Most court interpreters in the country are hired on a contractual basis. Unlike the translator, the interpreter must be physically present, which somewhat limits the pool of interpreters available to each court in the country. The study consultations confirmed that access to qualified interpreters is uncertain, and the ability of a general interpreter (that is, one with no specialized training in the field of law) to function effectively during a trial is questionable. Since interpreters are systematically used in bilingual proceedings, this problem merits the attention of stakeholders.

Proposed strategy 2: Access to qualified court interpreters in every region of the country should be the focus of a joint strategy of justice stakeholders (especially court administrators) and interpreters' associations, including the Canadian Translators, Terminologists and Interpreters Council.

The issue of support functions

A number of court support functions require no particular basic training. It is largely up to the individual employer to determine the qualifications needed for the positions, which include clerks, court reporters and registry officers. However, programs that specifically target these occupations are beginning to emerge, such as those of Durham College for clerks, court reporters and registry officers. At present, none of these programs are offered in French.

Given the pivotal role these various occupations, it is important to address this issue, while recognizing that the main objective of the initiative is to train individuals to be able to work in both official languages. While the establishment of programs in the minority language may be one avenue worth exploring, it is not the only one open to consideration. The inclusion of modules on bilingual court proceedings within existing majority language programs could also be considered.

Proposed strategy 3: It would be worthwhile including modules specifically on bilingual court proceedings in the training programs for clerks, court reporters and registry officers.

If programs in the minority language are considered at some point, reliable market studies should first be conducted. Training for these occupations is still largely optional, and in most regions the priority of employees in these occupations is to be able to function effectively in the majority language (regardless of the individual's first official language spoken).

Bilingual instruction for legal assistants

Legal assistants are, in some respects, a special class of support staff, since they are employed predominantly in law firms and notary offices in Quebec (although between 10% and 15% of them work in public administration and courts, as mentioned in section 0). Their role, which is to prepare various documents and maintain regular contact with clients, is a vital one. Their capacity to work in both official languages can determine the ability of the lawyer or notary who employs them to take on bilingual cases.

The training programs for legal assistants currently offered at Cité collégiale and Collège Boréal are a model in this regard. Although instruction is in French, both programs are designed to give students a bilingual command of legal vocabulary. It would be well worth expanding this model.

Proposed strategy 4: Institutions that offer training for legal assistants would do well to work in partnership with each other and directly with Cité collégiale and Collège Boréal to expand student access to training designed specifically to give them a bilingual command of legal vocabulary.

Bailiffs and probation officers

Bailiffs and probation officers currently have access to training programs related to their functions, but these programs are not qualification prerequisites unless the employer makes them a condition of hiring. In the case of probation officers in particular, they consist mainly of university courses in criminology, which are available in every region of Canada.

As in the case of lawyers, bailiffs and probation officers have access to programs in either English or French. Much of the problem lies in the fact that, in both instances, these programs do not necessarily give students a better bilingual command of legal vocabulary. It emerged from the study consultations that many probation officers, for example, have difficulty preparing a pre-sentence report in their second language.

Proposed strategy 5: Criminology programs should consider offering courses specifically on bilingual practice in both official languages. The partnering of various universities would also avoid any duplication of effort in this area.

5.3 Intensive activities

For on-the-job training, intensive learning activities are essential. Two such activities seem especially promising: applied training, and exchange programs.

Intensive applied training

Intensive applied training is probably one of the most important strategies for increasing stakeholders' bilingual proficiency in legal vocabulary. The experience to date of Ontario's French Language Institute for Professional Development provides a better understanding of the contribution such training can make. Throughout the study consultations, stakeholders who had participated in the Institute's activities praised this learning model.

The success of this type of training lies in its ability to offer modules tailored to each category of stakeholder while also lending itself to the recreation of scenarios involving the interaction of all stakeholders. This training, over a five-day period, can combine technical training sessions tailored to each target group (lawyers, clerks, registry officers, etc.) with mock trials in which participants play their respective roles.

Obviously, the difficulty for some stakeholders is simply lack of access to such training. The French Language Institute for Professional Development was established primarily to meet the needs of stakeholders in Ontario. Although the Institute has opened its doors to stakeholders from other jurisdictions, this initiative nevertheless remains a provincial one. The time has come to broaden this access.

Proposed strategy 6: The model of Ontario's French Language Institute for Professional Development should be extended to make it accessible across Canada. It seems imperative to adapt the modules to the needs of both lawyers and support staff, either by broadening the terms of reference of the current Institute in Ontario, or by replicating the model in other regions.

Exchanges

While Canada has a long tradition of exchanges in education and on-the-job training, the application of this model to the field of justice has so far been limited. According to the information gathered during this study, federal judges are virtually the only ones who have used this model regularly to improve their bilingual proficiency in legal vocabulary. It seems important at this time to offer such a program to other stakeholders.

Proposed strategy 7: Key stakeholders in the area of criminal law would benefit from exchanges allowing them to improve their bilingual command of criminal law vocabulary.

Since the purpose of an exchange is not to learn the fundamentals of a second language, but rather to develop proficiency in legal vocabulary in both official languages, this type of activity would be appropriate for the clientele considered in this study. Since this is a largely unexplored area, it is especially important to proceed in stages. Three considerations are worthy of note:

While private practice lawyers could take part in such activities, their participation is far less certain. First of all, it is questionable whether it would be feasible for a lawyer in private practice to travel to another region to take a training course to become bilingually proficient in criminal law vocabulary. It is also doubtful that a firm would agree to host this lawyer owing to considerations of confidentiality and competition. It therefore seems appropriate to exclude private practice lawyers from the initial phase of such a project, but this decision could be reviewed at a later stage.

The implementation of such activities would undoubtedly require the partnering of a number of stakeholders. An entity should therefore first be given responsibility for managing the exchanges (taking applications, assigning exchanges, preparing activity reports, etc.). The provincial and territorial governments should also be directly involved in managing such a program. It should be recalled, however, that this model has been used with success, especially with Canadian students, for many years. Technical ability in organizing exchanges is therefore widely established in Canada.

The costs of exchange activities should be clearly defined. The federal investment could thus support the coordination and organization of exchanges, but participants would continue to be paid by their respective employer.

The interest of the various target groups in participating in such activities was clearly established during the study consultations. It seems that exchanges, whether for members of the judiciary, Crown prosecutors or clerks, are not only desirable, but entirely feasible from an operational standpoint.

5.4 Regular activities

Again with regard to on-the-job training, regular activities play an important role by enabling stakeholders to maintain and improve their bilingual proficiency in legal vocabulary. For the purposes of this subsection, these activities are divided into two groups: targeted training sessions, and learning tools.

Targeted training sessions

Targeted training sessions, lasting from half a day to two days, have proven effective but their availability is limited. During the study consultations, stakeholders reminded us that there are still very few sessions offered in their respective jurisdictions. Broader access to such training would therefore seem to be a priority.

Proposed strategy 8: The various relevant stakeholders should develop a joint strategy for broadening access to targeted training sessions.

A number of stakeholders, including Institut Joseph-Dubuc, in Manitoba, have been offering this type of training for some years. It is apparent, however, that the supply of workshops does not meet the demand. In particular, there is a need for more trainers to meet this demand. However, the recruitment of qualified trainers poses a problem that needs to be addressed.

Proposed strategy 9: The recruitment and training of qualified trainers to teach targeted sessions should receive special attention.

Like intensive training activities, targeted training sessions should cover court support functions. Traditionally, these sessions have targeted prosecutors and lawyers in private practice. While these groups remain a target clientele, it is equally important to provide training in bilingual legal vocabulary to clerks, probation officers, bailiffs and legal assistants, to mention only the main support functions.

The training sessions currently offered make limited use of new information technologies. The study consultations indicated that these training courses are offered mostly on-line, with instructional material in paper format. In many respects, this approach seems to have contributed to the success of this type of training. However, it seems that the integration of new information technologies could prove helpful, even essential, to expanding this type of training.

Proposed strategy 10: Training stakeholders should consider increasing the IT content of their targeted training sessions.

The following suggestions emerged from the consultations:

Analysis of on-line teaching methods adapted to the field of justice:
It seems that little has been written specifically on the integration of new technologies in regular justice training. It may therefore be necessary to clearly define the methods available to stakeholders.
Centralization of teaching resources:
There is currently no central index of resources available for use by trainers teaching specialized sessions in the area of justice. A Web platform for such an index would be the most appropriate solution.
Communication centre for stakeholders:
The Web offers several options for stakeholders who develop or offer training in bilingual proficiency in legal vocabulary to exchange and communicate with each other. Intranet networks, blogs and on-line conferencing are all options that could be considered.

Learning tools

Tools for learning bilingual legal vocabulary is virtually non-existent. At present, justice stakeholders have access to a few bilingual reference tools on legal vocabulary. While these tools have an important role to play, they are not learning tools in the pedagogical sense.

Proposed strategy 11: Training stakeholders should consider developing learning tools that could be used independently of formal training sessions.

Learning tools, especially for access on-line, could be developed in conjunction with the tools described earlier in the context of the integration of new technologies in teaching bilingual legal vocabulary. These tools should have the distinctive feature of being useable independently of structured training. In other words, the goal would be to develop tools that justice stakeholders could continually consult to improve their bilingual legal vocabulary,[27] such as modules accessible on-line for free by creating a user account and profile. This would enable the stakeholder, for example, to spend 30 minutes a day on these modules and keep a personal record documenting his progress.

5.5 Complementary activities

This subsection touches on two subjects that are technically outside this study's terms of reference, but have sufficient bearing on it that their inclusion seems helpful. Since they are outside the scope of this study, no strategy is proposed.

The hiring criteria of certain positions

For many positions within the judicial system, there is no mandatory program of study. In fact, aside from lawyers and judges, individuals in the same occupational group may have entirely different academic backgrounds. This is true, for example, of justices of the peace, probation officers, clerks, court reporters, bailiffs and registry officers. It is therefore difficult to develop an action that targets core curricula in order to ensure a pool of candidates who are proficient in both official languages.

The hiring process is therefore especially important for ensuring that new hirees are at least functional in both official languages. Once hired, these employees can, if necessary, participate in training activities to improve their command of legal proficiency in both official languages. The study consultations revealed that the language criterion is increasingly used in recruiting new stakeholders. Even for positions not formally designated as bilingual, it seems desirable to target individuals with at least a functional knowledge of both official languages.

The role of promoting services offered in both official languages

Along with training activities, stakeholders should continue activities for promoting access to justice in both official languages. The goal is not just to remind persons appearing before the courts that it is possible to access the justice system in both official languages without compromising the quality of the service provided; it is also to remind young bilingual Canadians that they can work in this system in many occupations other than that of lawyer. As has been emphasized throughout this report, many academic paths can lead to a career in justice. In this context, general activities to promote access to justice in both official languages can reach a broader spectrum of bilingual young Canadians.

Some organizations, such as the associations of French-speaking jurists, have introduced promotional activities in recent years. It would seem desirable to expand the range of stakeholders active in this area to involve certain groups, such as the judiciary, more directly. If persons appearing before the courts are still reluctant to ask to be served in their language, it is primarily because they fear retaliation from the judicial system on the grounds that such a request is bothersome and unreasonable coming from someone who is proficient in both official languages. The study consultations indicated that, on the contrary, there is a desire at the highest levels of the judicial system, in every region of the country, to give full effect to the official language provisions of the Criminal Code. In fact, it is necessary to avoid the pitfall of stepping up training activities and thereby increasing the capacity to operate in both official languages, without dispelling this view on the part of some persons appearing before the courts that proceeding in the minority language is a “problem”.

In many respects, judges symbolize the judicial system, and they still enjoy a high degree of credibility with the public. It is therefore conceivable that the judiciary could play a more active role in informing citizens of their language rights, at law, without compromising their judicial independence. For example, if the chief judge of a provincial court were to publicly encourage the parties to a proceeding to exercise their language rights, this could have a significant impact.