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A Study on Legal Aid and Official Languages in Canada
3. Findings from the jurisdictions
This section presents the findings for each province on legal aid services in the official language of the minority, perceived gaps in these services, and proposed strategies to improve them.
3.1 Newfoundland and Labrador
French is the first language of over 2,000 people in Newfoundland and Labrador. They comprise about 0.5 percent of the total population. The primary areas where there might be a demand for French services are: Labrador City, St. John's, Grand Bank, Stephenville, and Corner Brook. In the last five years, the number of francophones has declined by approximately 400. About 22,000 people in the province speak both official languages. [28]
There is no Association des juristes d'expression française in Newfoundland and Labrador.
3.1.1 Services
Created in 1976, the Newfoundland Legal Aid Commission administers the provision of legal aid services in Newfoundland and Labrador. The Legal Aid Act, proclaimed in 1976, governs the power of the seven-member Board of Commissioners, which reports to the Provincial Minister of Justice. The Commission appoints all area directors as well as the Provincial Director.
The delivery system operates under a staff model,[29] and nine area offices across the province provide legal aid services. The offices are found in St. John's, Carbonear, Clarenville, Marystown, Gander, Grand Falls-Windsor, Corner Brook, Stephenville, and Happy Valley-Goose Bay.
Table 3 on the next page summarizes the key services currently offered by the Commission.
| Services | Description |
|---|---|
| Formal representation | Criminal matters: The Newfoundland Legal Aid Commission covers adults charged with indictable offences. Legal aid services are also available for summary conviction and provincial offences but only when there is a likelihood of imprisonment or loss of means of earning a livelihood. The Commission also provides assistance for youth accused of federal indictable offences and summary conviction offences. Family matters: Most family matters such as divorce, custody, access, child protection, and wardship are covered. Other coverage is determined on the basis of merit. Civil matters: The Commission covers refugee matters. Other civil matters are decided on the basis of cost and likelihood of success. |
| Duty counsel | Duty counsel services are provided in most criminal courts and in youth court. One staff lawyer is bilingual. |
| Brydges representation | A 24-hour toll-free line has been established to provide Brydges representation. |
| Information services | Advice and assistance can be obtained in person or on the phone through the regional offices. |
| Other | The Commission has a family conflict resolution office staffed by lawyers paid by legal aid. In addition, about a year ago, an 18-month Legal Family Aid pilot project was implemented (involving the Commission, Justice Canada, and the province) to address the legal needs of families. |
3.1.2 Policies and practices relating to bilingual legal aid services
Newfoundland and Labrador does not have legislation or formal policies that deal specifically with the provision of French legal aid services. Overall, the Commission works from the premise that clients should be served in their preferred official language. To this end, it attempts to accommodate requests for French services.
- Reception and intake services: The Commission offers its services primarily in English. There is no active offer of French services, but if French services are required, the Commission will attempt to provide them.
- Formal representation: If a client asks to be represented in French, the Commission will offer the service through the bilingual staff lawyer or through a contractual arrangement with a bilingual private lawyer.
- Duty counsel: There is no policy on the provision of duty counsel services in French. The services are essentially provided in English unless the bilingual staff lawyer is present or French is requested.
- Brydges representation: These services are usually provided in English. There have been occasions when the Commission has made arrangements with a private lawyer to assist with French.
3.1.3 Capacity to deliver bilingual legal aid services
The Commission's capacity to deliver services in French is limited. Approximately seven members of the bar in Newfoundland and Labrador speak French, and two of the private lawyers who had been providing French-language services to the Commission are no longer doing so.
The Commission does not actively offer French services but will attempt to accommodate any request for French services. One staff lawyer is able to communicate in French but would not be in a position to conduct a full trial in French.
Our consultations indicate that there are few requests for French legal aid services. It is estimated that approximately half a dozen requests for these services are made annually, and none of the key informants we consulted were aware of any situation in which they thought someone who should have been represented in French was not.
There are several francophone associations, but key informants were unaware of any official representation to the Commission by a community organization requesting a change in its approach to providing French services. However, efforts are being made to organize an Association des juristes d'expression française in Newfoundland.
All respondents agree that it is important to always have someone available to speak in the language of the minority, should the need arise. In addition, efforts should be made to systematically inform accused of their right to have a trial in French and of the fact that they can ask legal aid for representation in French.
In light of the low level of demand for French services, key informants indicated that the current approach is probably sufficient to meet the needs at this time.
3.2 Nova Scotia
According to 1996 Census data, French is the first language of approximately 36,000 people in Nova Scotia, comprising 4 percent of the total population. Acadians in Nova Scotia are predominantly located on Cape Breton Island and on the south coast of the province. They represent the majority in two of the eight municipalities of Digby and Yarmouth counties: Clare and Argyle. Acadians live primarily in rural settings, but a significant population (10,000 people) lives in the Halifax/Dartmouth region.
The number of Nova Scotians whose mother tongue is French has remained relatively stable in the past 50 years but has decreased somewhat since 1991. The proportion of the population whose first language is French has dropped from 6.1 percent to 4 percent since 1951. The number of people who know French is increasing; approximately 10 percent of the population can speak the minority official language. [30]
The Association des juristes d'expression française in Nova Scotia was established in 1994 and now includes more than 60 members. The Association works towards the promotion of increased accessibility of legal services in French. The objectives of the Association are:
- To work in collaboration with other legal professionals to promote, develop, and improve French-language services.
- To develop tools and resources required to practise law in French.
- To facilitate the implementation of and increase access to legal services in French. [31]
3.2.1 Services
Established as an experiment in 1972, legal aid became formally structured in 1977 with the enactment of the Legal Aid Act and the creation of the Nova Scotia Legal Aid Commission.[32] The Commission operates at arm's length from government, and the Lieutenant Governor in Council nominates its directors. [33] Table 4 summarizes the main services currently offered by the Commission.
| Services | Description |
|---|---|
| Formal representation | The Commission operates a staff model delivery system. Staff lawyers provide representation at trial for both criminal and civil matters (priority being given to criminal matters). Under some circumstances, such as when a conflict of interest exists or clients are given the choice of counsel, private lawyers acting on a certificate basis provide the services. |
| Duty counsel | The Commission does not operate a formal duty counsel service. However, the Commission provides services of a duty counsel nature to individuals in custody. A specialized duty counsel office is located in Halifax-Dartmouth, where higher caseloads are found. |
| Brydges representation | During business hours, the Commission offers legal advice, primarily over the phone, to individuals newly arrested. A contracted legal firm provides this service after business hours. |
| Clinic law and student legal aid services societies | The Commission provides some funding to the Dalhousie Legal Aid service in Halifax-Dartmouth to deliver clinical legal services. |
3.2.2 Policies and practices relating to bilingual legal aid services
The province of Nova Scotia does not have legislation or formal policies that deal specifically with the provision of French legal aid services. However, our consultations indicate that the Commission is providing French service on an ad hoc basis.
- Reception and intake services: The 13 regional offices provide reception and intake services in English only. If a unilingual French-speaking person requires assistance, attempts will be made to put him or her in contact with a bilingual staff person.
- Formal representation: Commission has staff with some capacity to communicate in French, but not to conduct a trial in French. If a legal aid client wishes to be represented by a bilingual lawyer, the Commission will issue a certificate to a lawyer who has the capacity to communicate in French.
- Duty counsel: The Commission does not automatically offer services in French to individuals in custody. However, if the need arose, the Commission would attempt to contract a private firm with bilingual capacity to provide this service.
- Brydges representation. As with other services, the Commission does not systematically offer Brydges representation in French. However, the contract between the Commission and the private firm that offers Brydges representation outside of business hours stipulates that services in French should be provided if requested.
3.2.3 Capacity to deliver bilingual legal aid services
Our consultations indicate that the Commission has limited capacity to provide French services. In certain communities, staff members are able to communicate in French, but no lawyers have identified themselves as being capable of conducting a trial in French. The Commission does not actively offer services in French, nor does it guarantee that these services will be immediately accessible. It will, however, attempt to provide services in French upon request. In light of this, key informants pointed to a number of considerations that we must take into account in assessing the extent to which this level of services actually meets the perceived need of the official language group.
- Most key informants noted that the current demand for French services is low. It appears that many Acadians prefer proceeding in English, the language in which they better understand the legal terminology.
- While some Acadians prefer that court proceedings be conducted in English, they may feel more at ease communicating with their lawyers in French. In this context, the need relates primarily to the capacity of a lawyer to hold discussions in French, but does not include the capacity to write and conduct a formal trial in French.
- Key informants noted that even when a lawyer and a client both speak French, it does not necessarily mean that they can effectively communicate with one another. The French language has historically evolved differently in Acadian communities than in other francophone communities.
- Provision of French-language services would be conditional on the Commission's capacity to recruit bilingual lawyers. Key informants emphasized that there are few lawyers who specialize in criminal law, fewer who are bilingual, and even fewer who are bilingual and who do legal aid work. Lawyers who speak both official languages may also be presented with more appealing opportunities in other provincial and federal departments.
3.2.4 Strategies to improve bilingual legal aid services
Key informants identified a number of avenues to improve French legal aid services, either by having what is currently available better known or by implementing new measures.
Table 5 summarizes the findings that emerged from our consultations
| Systematic provision of services | Key informants suggested that a more systematic offer of French services would probably increase the demand for these services. Special arrangements with other provinces, such as New Brunswick or Québec, could assist in providing an increased level of services. Brydges representation is provided over the phone and could, therefore, involve lawyers who are not located in Nova Scotia. |
|---|---|
| Training | The Commission could offer French courses to Legal Aid staff lawyers. Universities offering French law programs, such as the Université Moncton, could provide these courses. |
| Pilot projects | The Commission could test alternative delivery structures through pilot projects. Having services more available in some communities would allow the Commission to get a better sense of the actual needs for French services. |
| Clinic law and student legal aid services societies | The Commission provides some funding to the Dalhousie Legal Aid service in Halifax-Dartmouth to deliver clinical legal services. |
Key informants estimated that an investment of approximately $150,000 would allow the Commission to offer French legal training. This investment would cover registration fees, living expenses, travel, and replacement costs. It was emphasized that the federal government's assistance is critical for improving the language capacity for legal aid. It would not otherwise be treated as a priority over the competing demands of the Commission's already strained budget.
3.3 Prince Edward Island
The 1996 Census reported French was the first language of 5,722 people in Prince Edward Island (4.3 percent of the total population). The majority of Acadian and francophone communities are located in the western part of the Island, in Prince County, where they represent approximately 10 percent of the population. They are primarily concentrated in rural regions, but approximately 1,000 francophones and Acadians are located in Summerside and the surrounding communities. The Acadian and francophone population represent a majority in some villages of the Évangéline region.
From 1951, the proportion of francophones dropped significantly, from 8.6 percent of the population to 4.8 percent in 1981. The number of francophones, however, has remained relatively stable since 1981, dropping only by about 100. In addition, the number of people who know and speak French appears to be increasing; 11 percent of the population (15,000 people) say that they can speak French. [34]
Despite there being several Acadian and francophone community organizations throughout the province, an Association des juristes d'expression française has not been established.
3.3.1 Services
The province of Prince Edward Island has no legal aid legislation. Instead, legal aid is a program administered by the Department of Community Services and the Attorney General. The criminal legal aid program was implemented in 1973, the family legal aid program in 1980. Full-time staff, comprised of four lawyers and three secretaries, provide legal aid services.
Table 6 summarizes the legal aid services currently offered.
| Services | Description |
|---|---|
| Formal representation | Key informants suggested that a more systematic offer of French services would probably increase the demand for these services. Special arrangements with other provinces, such as New Brunswick or Québec, could assist in providing an increased level of services. Brydges representation is provided over the phone and could, therefore, involve lawyers who are not located in Nova Scotia. |
| Duty counsel | Prince Edward Island does not have a duty counsel service per se. Staff lawyers are usually available to provide advice during business hours in family and criminal matters. In Prince Edward Island, this type of duty counsel service is limited to individuals who meet the eligibility criteria. Most of the civil cases handled are family matters, involving only the most urgent areas of family law where there is a risk of violence or abuse. |
| Brydges representation | The legal aid program does not offer formal Brydges representation. Police authorities are expected to take measures to refer individuals who are arrested to a staff or private lawyer. Lawyers who accept Brydges calls are not automatically paid by legal aid. |
| Clinic law and student legal aid services societies | The Commission provides some funding to the Dalhousie Legal Aid service in Halifax-Dartmouth to deliver clinical legal services. |
3.3.2 Policies and practices relating to bilingual legal aid services
French Language Services Act
In 1999, the Legislature of Prince Edward Island passed theFrench Language Services Act, the purpose of which is to"specify the extent of French language services to be provided by government institutions" and to "contribute to the development and enhancement of the Acadian and francophone community."[35]
Section 7 of the Act states:
Where the Acadian and francophone community could reasonably be expected to use a particular service on a regular basis, every government institution shall ensure the following:
- all written correspondence in English or French sent to any government institution is replied to in the language of the original correspondence;
- all requests to communicate in English or French with a government institution are complied with;
- French services are provided during at least one session of every series of consultations
- the participation of the Acadian and francophone community on various boards, commissions and agencies within the Government of Prince Edward Island."
The sections of the Act pertaining to the administration of justice have yet to be proclaimed.
Prince Edward Island provides legal aid services in the language of the minority on an ad hoc basis. The general policy regarding French-language services is to provide them through contract with members of the private bar when they are required.
- Reception and intake services: Services are offered in English only.
- Formal representation: Legal aid in Prince Edward Island does not have any French-speaking lawyers on staff. If someone requests services in French, a bilingual lawyer will be hired on contract. Legal aid will bring in lawyers from New Brunswick if required.
- Duty counsel: No duty counsel services are available in French.
- Brydges representation: The police departments have lists of private bar lawyers who will accept Brydges calls. Perhaps only three lawyers speak French.
3.3.3 Capacity to deliver bilingual legal aid services
The legal aid system in Prince Edward Island does not have any capacity to provide services in the official language of the minority. Although Legal Aid will issue certificates to lawyers in the private bar, key informants raised some important concerns with this process:
- Very few French-speaking lawyers in the province practise criminal law and accept legal aid cases. Those French-speaking lawyers who practise criminal law often have limited experience with legal aid cases.
- The tariff for legal aid certificates is too low; many lawyers will not accept legal aid cases for this reason. In addition, Legal Aid receives limited funding for certificates they can issue to the private bar.
Key informants indicate that the demand for French legal aid services is low. Most francophones in the province speak English and do not request services in French. For this reason, some key informants do not perceive any gaps in the legal aid system in terms of official languages. Other key informants, however, have identified several gaps in the provision of legal aid services in the official language of the minority:
- A French-speaking person who goes to the Legal Aid office for assistance and/or advice will not receive services in French. Legal aid will not be able to help a unilingual French-speaking client.
- Intake documents and information are available in English only.
- Lawyers providing Brydges representation are not necessarily paid by legal aid. If a client cannot pay for the service, the lawyer must make an application to legal aid in order to receive compensation. Lawyers will seldom do this because the amount of time spent on the application is not worth the amount of money that they may or may not receive from legal aid. This situation does not encourage lawyers to accept Brydges calls.
According to key informants, it is very important for services to be available in both official languages in order to reduce misunderstandings between counsel and client. Effective communication or the lack thereof can have important consequences on the advice given to a client and the client's understanding of that advice. It is important to francophone clients that they receive legal aid services in French, but since most are comfortable in English, they will not request services in French because the delays are too great. Key informants noted that the priority area should be those services containing an element of urgency and immediacy, such as duty counsel services and Brydges representation.
The main barriers to the provision or expansion of French legal aid services, as identified by key informants, are:
- Prince Edward Island's legal aid program is under-funded; therefore, French-language services are not a priority. Other needs are more pressing.
- Many criminal justice professionals perceive the organization of a French trial as a hassle. There are delays in finding a French-speaking lawyer and a French-speaking judge.
- There is a lack of impetus to make French legal aid services available. Many individuals believe that if a person speaks English, he or she does not need French legal aid services
- As previously mentioned, Prince Edward Island has few French-speaking lawyers, which makes it difficult for legal aid to recruit bilingual personnel.
- There are no resources for providing French-language training to lawyers and other Legal Aid staff.
3.3.4 Strategies to improve bilingual legal aid services
Key informants noted that, in order to improve the delivery of French legal aid services, there must be awareness within Legal Aid and the justice system in general of the need to provide services in French. The population also must be aware of the importance of providing services in the official language of the minority. Other suggested changes include the hiring of at least one bilingual staff lawyer and increased funding for legal aid certificates.
French training was also mentioned as a potential strategy; however, key informants indicated that it is not an adequate measure. It is difficult for someone without any basic French capacity to learn and maintain the language.
3.4 New Brunswick
The 1996 Census reported that French is the first language of approximately 33 percent of the population (242,408 people) of New Brunswick. The majority of the Acadian population is located in Madawaska, the Acadian Peninsula in the northeast, and the southeast of the province. Close to 94 percent of all francophones in New Brunswick live in the following seven counties: Gloucester, Kent, Madawaska, Northumberland, Restigouche, Victoria, and Westmorland. The francophone and Acadian populations are predominantly located in rural settings but Edmunston, Bathurst and Moncton/Dieppe have become highly francophone.
The number of people with French as a mother tongue has increased steadily since 1951, although the proportion of the population whose first language is French has declined slightly since 1951 (from 36 percent to 33 percent). More people can speak French, however; according to 1996 data, more than 310,000 people (42.7 percent of the population) know French.[36]
The Association des juristes d'expression française in New Brunswick was established in 1987 and is now comprised of approximately 250 members. The objectives of the Association are to promote public French legal services and make them more accessible, allow easier access to French legal material and resources, inform the population of their linguistic rights, and represent francophone and Acadian populations before legislative authorities. [37]
3.4.1 Services
The passage of the Legal Aid Act in 1971 afforded the Law Society of New Brunswick the authority to establish and administer the legal aid plan for the province. [38] In 1972, Legal Aid New Brunswick began providing legal aid services through a judicare model. A criminal staff lawyer currently provides services in Edmunston and, since May 1993, the provincial Department of Justice has operated a Domestic Legal Aid Program that employs family solicitors under contract. [39]
The Legal Aid Committee, appointed by the Law Society, provides advice on policy and matters of law. Members are directly responsible to the Council of the Law Society. A provincial director, appointed by the Law Society and approved by the Minister of Justice, oversees and coordinates the plan province-wide.
The provincial Legal Aid office is located in Fredericton. Additionally, there are eight regional offices across the province, each staffed with an administrative officer who is responsible for intake, the preparation of lists of lawyers to serve on legal aid panels, and the appointment of duty counsel to criminal courts. The province's regions are: Bathurst, Campbellton, Edmundston, Woodstock, Moncton, Miramichi, Saint John, and Fredericton. In addition to administrative officers, each regional office includes family solicitors who work under the Domestic Legal Aid Program.
The following table summarizes the services currently offered by Legal Aid New Brunswick.
| Services | Description |
|---|---|
| Formal representation | Criminal matters: Legal Aid New Brunswick provides coverage to adult and youth charged with federal offences where there is a probability of imprisonment upon conviction, where there are circumstances mitigating the severity of the sentence that may be imposed, or where extraordinary circumstances determine that it is in the best interests of justice to represent the accused. Adult and youth may also be represented when charged with provincial offences if there is a possible defence to the charge and where there is likelihood of jail time if convicted. Legal aid coverage extends to appeals by both the Crown and the defence where specified criteria are met. Civil matters: No coverage is available for civil law matters. Family matters: Legal aid is provided for cases involving permanent guardianship and variation applications for those found unable to pay. The Domestic Legal Aid Program covers services to victims of spousal abuse, as well as mediation services and legal services for beneficiaries of support. The Domestic Legal Aid Program has been in place since May 1993, and is operated in partnership by the Department of Justice and Legal Aid New Brunswick. |
| Duty counsel | Duty counsel services are available to any accused for any charge for a first appearance. Duty counsel are also available at enforcement hearings and for interim custody applications in child protection cases. |
| Brydges representation | Members of the private bar provide after-hours legal advice and assistance to detainees. The service is generally provided over the phone. Police retain lists of lawyers who accept Brydges calls. |
| Information services | Advice and assistance is provided through the regional Legal Aid offices. These offices include intake staff and family solicitors only. A person can drop in or phone for information. |
| Other | Legal Aid New Brunswick does not maintain a Web site or an information line. |
3.4.2 Policies and practices relating to bilingual legal aid services
The Canadian Charter of Rights and Freedoms
Section 16(2) of the Canadian Charter of Rights and Freedoms states:
"English and French are the official languages of New Brunswick and have equality of status and equal rights and privileges as to their use in all institutions of the legislature and government of New Brunswick."
In so doing, the Charter declares New Brunswick an officially bilingual province - the only one in Canada. French and English share equal status, not only before the courts but also throughout all levels of government services.
Additionally, section 20(2) states:
"Any member of the public in New Brunswick has the right to communicate with, and to receive available services from, any office of an institution of the legislature or government of New Brunswick in English or French."
This creates a constitutional obligation for the province to provide any government services in both languages. The Law Society, through a mandate from the province, provides legal aid services and thereby constitutes an "institution of the legislature or government." All responsibilities regarding the provision of services in both English and French are therefore transferred on to the Law Society.
The Official Languages of New Brunswick Act
This Act reiterates that the official languages of the province are English and French and that any government services must be available in both languages. Section 10 of the Official Languages of New Brunswick Act states:
"Subject to section 15, where requested to do so by any person, every public officer or employee of the Province, any agency thereof or any Crown corporation shall provide or make provision for such person
- to obtain the available services for which such public officer or employee is responsible, and
- to communicate regarding those services
- in either official language requested."
In the same way that the Charter requires the provision of services in both official languages, so does this Act. Section 20(2) of the Charter, however, does not limit the provision of such services to those individuals who make a request. In other words, while section 10 of the Official Languages of New Brunswick Act does not impose a requirement for actively offering services in both official languages, the Charter section does imply an obligation of "active offer." [40]
In New Brunswick, access to legal aid services in both official languages is a right and, therefore, a priority for Legal Aid New Brunswick. In keeping with the province's constitutional obligations, Legal Aid New Brunswick, through various practices, ensures that all services are provided in either official language as requested.
- Reception and intake services: All offices located in communities with a concentration of French-speaking individuals have bilingual administrative officers. In those regional offices where the officer is not fluent in both official languages, arrangements are made to provide the service in French as required. The application form is bilingual; this can facilitate the intake process.
- Formal representation: A number of lawyers throughout the province are capable of speaking both official languages. If a French-speaking lawyer is not available in a particular area, counsel from another region will be assigned.
- Duty counsel: In certain regions, duty counsel lawyers are bilingual or else easily accessible in the language of the minority. Some regions have French court days once a month with bilingual duty counsel available on those days. Where the majority of lawyers are English-speaking only, interpretive services are provided upon request.
- Brydges representation: Many areas of the province have sufficient bilingual lawyers to provide this service in both official languages at all times. If necessary, a detainee can contact a bilingual lawyer in another region.
- Information services: Depending on the office, a client may be able to obtain information in both official languages. If the administrative officer cannot speak French, the client is referred to an office with a bilingual officer, or, if the family solicitor is bilingual, he or she may provide the necessary information.
3.4.3 Capacity to deliver bilingual legal aid services
New Brunswick's French-speaking population is dispersed across the province, yet concentrated in particular regions. The northern part of the province is mainly francophone, whereas the southern part of the province is primarily anglophone. Legal Aid's capacity to deliver its services in French varies accordingly. Our consultations indicate that legal aid services are readily available in both languages in those areas with a significant francophone population. However, services in French may be more difficult to access in regions with a predominantly English-speaking population.
-
Fredericton
Our consultations indicate that the population of Fredericton is approximately 95 percent English-speaking and that the need for French legal aid services is relatively low. Legal Aid does have the capacity to provide services in French for trial representation, duty counsel, and Brydges representation. There is French court one day a month, and a bilingual duty counsel is available on that day. On other days, however, duty counsel are usually English-speaking only.
Legal Aid lawyers in Fredericton are English-speaking only. According to Legal Aid New Brunswick, French language services are arranged where necessary.
-
Moncton
According to our consultations, approximately 20-25 percent of legal aid clients request services in French. Usually two duty counsel are available - one anglophone and one bilingual. In Youth Court, however, duty counsel is usually English-speaking only. Few French-speaking lawyers accepting legal aid certificates are comfortable representing a client at trial. There are no difficulties where Brydges representation is concerned.
Legal Aid lawyers in Moncton are bilingual.
-
Bathurst/Campbellton/Edmundston
These areas are predominantly francophone. The majority of the population, as well as of legal aid clients, are French-speaking and request services in French. Most or all lawyers and administrative officers are bilingual.
Legal Aid lawyers in these cities are bilingual.
-
Miramichi/Woodstock/Saint John
Key informants have indicated that the provision of legal aid services in French can be particularly challenging within these regions of the province. However, because of the extremely low demand for services in French, the situation is not considered problematic. All or most local lawyers and administrative officers are English-speaking only, so there is little or no capacity to provide services in French. When French language services are required counsel are arranged from outside the area by Legal Aid New Brunswick.
The steps taken by a client requiring legal aid services in French are the same as those taken by a client requiring services in English: he or she must go to the Legal Aid regional office to fill out an application. According to our consultations, services are not necessarily actively offered in both official languages. The burden thus lies with the client to ensure that he or she makes his or her desire to obtain services in French known to the service provider.
Key informants identified a number of gaps and key considerations relating to the provisions of legal aid services in the official language of the minority:
- Very few lawyers accept Brydges calls, so the lists are quickly exhausted. Gaining access to this service in the official language of the minority can be particularly difficult, especially considering that Brydges lists do not identify lawyers by linguistic capacity. Significant delays in retaining counsel can occur as a result.
- Duty counsel services are not always readily available in the official language of the minority, and this is particularly problematic. Several key informants noted the importance of the first appearance and indicated that the consequences of not having access to this service in one's own language can be detrimental to the case. A number of key informants identify duty counsel services as a priority target area. According to Legal Aid New Brunswick, where a need for bilingual services are anticipated counsel are made available.
- There appears to be a lack of training available for lawyers to upgrade their French-language skills. Additionally, resources and tools for francophone lawyers are lacking. However, there is extensive language training that is generally available through private services. Legal Aid New Brunswick also reports that all materials are available in both official languages.
- Clients are generally uninformed of their right to legal aid services in their official language of choice. The availability of such services is not clearly identified, and service providers do not always inform clients of this right, so there is a lack of active offering. Additionally, key informants noted that legal aid clients are facing situations of significant stress and find themselves confronted with a very intimidating legal system. The opportunity to communicate in the preferred official language increases a client's comfort level.
Some key informants believe that the system does not encourage the use of French and believe that a prejudice exists against individuals who request services in the official language of the minority. Many professionals in the criminal justice system maintain the view that if a client speaks English, he or she does not require French services. However, as noted in Section 2.3, a person may indeed be capable of expressing him- or herself in a language but not have an adequate knowledge of the language for legal and judicial proceedings.
Key informants repeatedly highlighted the importance of providing services in either official language because it is a constitutional right; the provision of these services should not depend on need. According to Legal Aid New Brunswick, support staff are bilingual in bilingual areas and resource materials are available in both official languages.
According to our consultations, the provision of legal aid services in the official language of choice is important; otherwise, a client may not understand the proceedings and available options. Clients can better defend themselves, better express themselves, and are in a more favourable position to instruct their lawyer effectively when they are able to communicate in the official language of their choice.
3.4.4 Barriers to providing bilingual legal aid services
Although Legal Aid New Brunswick has an overall capacity to provide its services in both official languages, our consultations highlight a number of important barriers to the provision of legal aid services in French. These include:
- Financial barriers: Due to exceptionally low legal aid rates, lawyers do not want to accept legal aid certificates. By reducing the overall pool of lawyers willing to do legal aid work, financial barriers also reduce the number of French-speaking lawyers available.
- Lack of resources: Lawyers' support staff are generally English-speaking only, adding to the difficulties of practising criminal law in French. Key informants noted a lack of resources overall (case law, French materials, etc).
-
Systemic barriers: There is an atmosphere of accommodation throughout the justice system. Francophones who speak English are expected to proceed in English. A number of key informants ndicated that the client must often accommodate the system's needs rather than have the system accommodate his or her needs.
Furthermore, many anglophone lawyers who speak French as a second language do not feel confident enough to represent a client in French because many fear the courts judgement of their poor French will have a negative impact on the defence of their client..
Another observation made by a number of key informants is that there is little or no active offering of French legal services by the police. The police often represent the point of entry for clients into the justice system; police officers are the key link between clients and the legal aid system.
- Client demand: Many legal aid clients will not insist on their right to French-language legal aid services. Our consultations indicate that many individuals hesitate to request services in French because they do not want to be perceived as causing problems for the system. This represents an important barrier to receiving services in the language of the minority.
3.4.5 Strategies to improve bilingual legal aid services
There is a general feeling among various key informants that Legal Aid New Brunswick is making an effort to ensure the provision of services in both official languages. In those regions with primarily English-speaking individuals, very few changes are recommended because Legal Aid adequately responds to the low demand for French services. Other key informants, who believe that Legal Aid needs to improve its services in French, offered ideas for change. The following table summarizes their ideas.
| Training | Key informants suggested training programs/courses for lawyers who wish to upgrade their French-language skills generally, and specifically as they pertain to the practice of law (legal terminology). |
|---|---|
| Judicare vs staff model | Key informants noted that identifying bilingual lawyers who practise criminal law and who are willing to accept legal aid certificates is challenging. Criminal law is a field that requires extensive expertise. In this respect, the adoption of a staff model was advanced as a possible solution to ensuring access to a French-speaking lawyer. |
| Active offer | The issue of "active offer" was repeatedly mentioned as critical in providing services in French. Key informants noted the importance of requiring administrative officers, duty counsel, and police to actively offer services in both official languages; they are the main point of entry for clients of Legal Aid. Not only must the services be offered in both official languages, they also must be offered in a positive manner. Many key informants indicated that the justice system, overall, holds negative views of demands for services in French. A client must not be made to feel that he or she is bothersome when requesting services in the language of the minority. |
| Increased legal aid rates | Key informants indicated that in order to encourage lawyers to accept legal aid certificates, Legal Aid must increase the rates paid to lawyers. It was suggested that bonuses could be offered as an incentive to bilingual lawyers who take on legal aid cases. |
It appears from our consultations that legal aid services in New Brunswick are generally provided in both official languages. As stated previously, the capacity varies widely across the different regions. The necessary improvements, as noted by key informants, mainly relate to changes in approach, offer, and delivery model. Additional funding would assist the province in providing French-language training for lawyers and would allow Legal Aid New Brunswick to increase certificate rates overall.
