A Brief History of Access to Justice in Both Official Languages
Section 133 of The Constitution Act, 1867, then known as the British North America Act, permits the use of either English or French in the debates of Parliament, as well as in the pleadings and proceedings before the federal courts. This section also provides that both languages must be used in the records and journals of Parliament, and that its laws must be enacted and published in both languages. This constitutional provision still represents a fundamental right and is one of the pillars of the law that affords legal and constitutional protection for Canada's linguistic duality.
Following the recommendations of the Royal Commission on Bilingualism and Biculturalism, Parliament adopts the first Official Languages Act. This Act recognized English and French as Canada's official languages. It grants equality of status of English and French not only in Parliament or before courts, but also throughout the federal administration. The Act specifically states that the public has the right to receive services from federal institutions in certain locations and to appear before federal courts and tribunals in the official language of their choice.
Creation of the National Program for the Integration of Both Official Languages in the Administration of Justice (known as PAJLO until 2003), the objective of which was to develop tools to improve the administration of justice in English and French. The PAJLO was administered by the Secretary of State (now the Department of Canadian Heritage) until 2003.
The Constitution Act, 1982, including the Canadian Charter of Rights and Freedoms, is proclaimed. Sections 16 and 23 grant constitutional guarantees with respect to the status and use of Canada's official languages in all federal institutions of the Parliament and Government of Canada.
Parliament adopts the new Official Languages Act. Its three main objectives are:
- To ensure respect for English and French as the official languages of Canada and ensure equality of status and equal rights and privileges as to their use in all federal institutions;
- To enhance the vitality of the English and French linguistic minority communities in Canada and to support and assist in their development;
- To foster the full recognition and use of both English and French in Canadian society.
New to the Act is allowing proceedings in judicial and quasi-judicial tribunals established by the Parliament of Canada to be conducted in one language while guaranteeing the right to be heard by a judge who understands the language of the proceedings without the assistance of an interpreter, and to require that the federal prosecutor speak either the language spoken by the parties, or both official languages.
Entry into force across Canada of the provisions of the Criminal Code confirming the right of an accused person to a trial in his or her official language, which is the official language with which he or she has sufficient links. The accused person has the right to use, before certain courts, the official language that he or she considers to be his or hers, provided that he or she makes this request in the time period set out.
The Government of Canada reinforces its commitment to official language minority communities by adopting an accountability framework that specifies what major federal departments and agencies (including the Department of Justice) must do to ensure that they are implementing section 41 of the Official Languages Act. Section 41 of the Act refers to the federal government's commitment to enhancing the English and French linguistic minority communities in Canada and assisting in their development and to fostering the full recognition and use of both official languages in Canadian society. These departments and agencies therefore have an obligation:
- To consult official language minority communities when developing an action plan;
- To submit an annual progress report to the Minister of Canadian Heritage regarding accomplishments arising from their action plans.
Publication of the Canadian Common Law Dictionary: Law of Property and Estates, a work created by the National Program for the Integration of Both Official Languages in the Administration of Justice about major areas in the practice of law.
The Supreme Court of Canada orders a new trial for Jean-Victor Beaulac, a Francophone from British Columbia who was accused of murder, because he was denied a trial in French. The Court ruled that his language rights must be given a large and liberal interpretation based on a purposive approach. The fact that these rights are the result of a political compromise has no effect on their interpretation. As in other related cases heard by the Supreme Court at that time, this decision marked a significant development with regard to access to justice in both official languages. It specified the obligation of governments to ensure that official language minority communities have equal access to services of equal quality.
The Department of Justice sponsors a study entitled Environmental Scan: Access to Justice in Both Official Languages, which establishes a detailed profile of the situation in each province and territory. The study shows that official language minority communities have no access to legal and judicial services of equal quality to those provided to the majority. In provinces and territories where French is the minority language, the results account for: additional costs and waiting periods associated with a request for services in French; frequent inability to provide services in the minority official language; and a lack of knowledge on the part of Canadians with respect to their language rights. The study also shows that access to justice in both official languages is unequal in every province and territory. Therefore, solutions have to be varied and adapted to every context.
This year also marked the creation of the Federal-Provincial-Territorial Working Group on Access to Justice in Both Official Languages, the mandate of which is to examine any possible solutions to improve the situation revealed in the Environmental Scan.
The government action plan for official languages, entitled The Next Act: New Momentum for Canada's Linguistic Duality, is released. It includes several initiatives aimed at fostering linguistic duality in Canada, one of which is the Department of Justice's initiative for improving access to justice in both official languages.
Development of the necessary measures, begun by the National Program for the Integration of Both Official Languages in the Administration of Justice in 1981, is transferred to the responsibility of the Department of Justice Canada, which replaced the POLAJ with the Access to Justice in Both Official Languages Support Fund. The Support Fund was implemented to ensure that the commitments stated in the Action Plan were respected. In addition to continuing with efforts aimed at equal access to justice in both official languages, the Support Fund notably contributes to the basic funding of four jurilinguistic centres and seven associations of French-speaking jurists and their national federation.
The Department of Justice adopts a Strategic Plan for the Implementation of Section 41 of the Official Languages Act and forms a team responsible for the coordination of its implementation within the Department.
The Advisory Committee – Justice in Official Languages is created to ensure liaison between the Department of Justice and stakeholders from the legal and official language minority communities. The purpose of the activities of the Advisory Committee is to enhance the vitality and assist in the development of official language minority communities and to improve access to justice for these communities.
To further study access to justice in both official languages, the Advisory Sub-Committee on Access to Justice in Both Official Languages is formed.
The following year, another advisory sub-committee is created. The purpose of this sub-committee is the implementation of section 41 of the Official Languages Act; this sub-committee includes Anglophone and Francophone committees.
In 2005, Part VII of the Official Languages Act was amended and notably sets out:
- That federal institutions have a duty to ensure that positive measures are taken for the implementation of the commitments under subsection 41(1) of Part VII of the OLA;
- That the duties under Part VII of the OLA can henceforth be subject to legal action.
Entry into force across Canada of amendments to the Criminal Code focusing on the language rights of accused persons. In criminal proceedings, the judge must ensure that the accused person is advised of his or her right to a trial (including preliminary proceedings) in the official language of his or her choice (or a bilingual trial). The accused person also has the right to request that the Crown prosecutor speak the same official language as him or her, or both official languages, as the circumstances apply.
The Roadmap for Canada's Linguistic Duality 2008–2013: Acting for the Future, the government's action plan, is released. This commitment represents a $1.1-billion investment over five years. The Roadmap identifies justice as being an essential service sector for official language minority communities and points out to what extent it is important for services to be available in both official languages in these communities.
A total investment of $41 million over five years is allocated to the Access to Justice in Both Official Languages Support Fund to pursue the objectives stated in 2003 when it was created. This investment includes $20 million to step up training efforts. These efforts are particularly to improve the language ability and enable the development of people already employed in the area of justice and to train and recruit young bilingual Canadians who are interested in working in the justice system.
To truly target additional investment in the Access to Justice in Both Official Languages Support Fund, a Canada-Wide Analysis of Official Language Training Needs in the Area of Justice is conducted at the request of the Department of Justice Canada. This analysis reveals that a large proportion of justice stakeholders, especially judges, lawyers and notaries, have a basic knowledge of both official languages, but that this is not the case for clerks, bailiffs, assistants, probation officers, etc. The ability to carry on a conversation in a second official language does not mean that a person can engage in proceedings in that language. For a court to be institutionally bilingual, a command of legal vocabulary in both official languages is essential.
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