Mr. Chair, at this time in the appearance of the Minister of Justice and Attorney General of Canada, I would like to discuss a topic of considerable importance to the Department of Justice of Canada and to Canadians, in other words, access to justice in Canada's two official languages.
Ensuring an effective justice system that is fair and equitable as well as accessible to Canadians is one of the elements of the Department of Justice's mission. This means that among other things, legal services have to be accessible to Canadians in the official language of their choice.
This may seem obvious, but reality is quite the opposite for triable Canadians in official language minority communities. This is a true challenge for our justice system and its various players. In her Infoaction, spring 2003 bulletin, the Commissioner of Official Languages, Dyane Adam, described access to justice in both official languages as a sizeable challenge.
The Department of Justice has been working on overcoming this challenge for many years. I think it still has a great deal of work to do. It is a complex situation that requires cooperation among many stakeholders, including provincial and territorial governments. It also requires political will by the government.
Everyone agrees that administering justice is a shared responsibility. A series of constitutional, quasi-constitutional and legislative provisions govern the use of French and English in Canada's courts.
Federally, this legal framework is subject to section 133 of the British North America Act, 1867, paragraph 19(1) of the charter, part III of the Official Languages Act, 1988, and sections 530 and 530.1 of the Criminal Code. The latter have been in effect across the country since January 1, 1990. In addition to these provisions there are various provincial and territorial laws that also govern the use of French and English in provincial or territorial courts. Therefore, it is essential to work in close cooperation with the provinces and territories.
A number of studies and decisions by Canadian courts have shown that the implementation of these rights remains far from perfect and varies hugely from province to province. The Office of the Commissioner of Official Languages released two studies in 1995 and 1999 showing that there are many obstacles to achieving the goal of equal access to federal courts.
It should be noted that over the past few years the case law has definitely confirmed the existence of these difficulties. The Beaulac case, the Devinat case and the matter of the Contravention Act are three recent examples where the implementation of existing linguistic rights regarding the administration of justice in both official languages was found to be wanting.
Since then, in the 2001 Speech from the Throne, the Government of Canada has reaffirmed its commitment to the linguistic duality of our country. This commitment was again made in the 2002 Speech from the Throne. In support of his commitment, the Prime Minister of Canada gave the President of the Queen's Privy Council for Canada and Minister of Intergovernmental Affairs the responsibility of coordinating the official languages issue across the federal government and of developing an action plan to implement the commitments made in the 2001 and 2002 Speeches from the Throne.
It is in that context that the issue of the access to justice in both official languages has resulted in new steps being taken by the Department of Justice. Those steps are in addition to the initiatives already in place in the department and in the Government of Canada.
Until very recently, there was only one program throughout the federal government dealing with administering justice in both official languages, namely the National Program for the Integration of Both Official Languages in the Administration of justice, the so-called POLAJ. Jointly managed by the Departments of Canadian Heritage and Justice, for over 20 years POLAJ has helped improve—but not enough—access to justice in both official languages through the development of legal and linguistic tools for Canadian lawyers working in these communities.
POLAJ has resulted in the creation of a network of agencies concerned with access to justice in both official languages, with whom the Department of Justice has been working on a regular basis.
Moreover, the department has been working for some years in close conjunction with the associations of French language common law jurists and their national federation. These seven associations encompass more than 1,000 French-speaking jurists serving francophones in Ontario, New Brunswick, Nova Scotia, Manitoba, Saskatchewan, Alberta and British Columbia. For more than eight years, the department has been providing them with financial support.
Access to justice in both official languages is a priority for official language minority communities. The FCFA, the Fédération des communautés francophones et acadienne du Canada, ranks it third in its priorities after health and education.
in 2002, the Department of Justice released a study providing an overview of the situation. This document, entitled “Environmental Scan: Access to Justice in Both Official Languages” gives a picture for each province or territory of the situation as far as access to justice in both official languages is concerned.
The objectives of the study were as follows: to collect qualitative and quantitative data relating to services, to identify and describe the principal barriers restricting access to judicial and legal services, to identify possible solutions to the situations identified, and to identify existing and planned innovative practices.
The research team collected comments from 359 respondents to fulfill its mandate.
The study reached the following conclusions on access to justice in both official languages: first, delays and costs associated with requests for service are higher when the request is made in the official language of the minority; second, there is a lack of public servants capable of supporting a bilingual judiciary system; third, there are few judges capable of hearing a case in the official language of the accused; fourth, there is a lack of active offer of legal services; fifth, there are problems of access to legal documentation in French; sixth, there are problems relating to interpretation, that is to say costs, skills and so on.
The report does not just illustrate the obstacles to access to justice. It also offers some prospects for solutions, and we all hope the department will follow up on them, examples being the appointment of judges capable of hearing a case in the official language of the accused—some progress has been made in this but there is still a long way to go—; appointment of bilingual prosecutors and legal staff; language training for judges and legal staff; information and awareness sessions for public servants and triable Canadians; single service points; travelling courts; and legislative amendments.
The department's experience shows that measures designed to improve access to the Canadian justice system in the provinces and territories must not be implemented in the same way across the country. The findings of “Environmental Scan” confirm this.
The government's Official Languages Action Plan, which was announced on March 12 at the Cité collégiale, in the riding of Ottawa—Vanier, provides for measures to help improve access to justice in both official languages. These measures are based on “Environmental Scan”, but also on previous studies on access to justice, including studies by the Office of the Commissioner of Official Languages.
The department has provided for three categories of measures.
The first category includes measures that would allow the department to fulfill its legal obligations under the Contraventions Act and the Act to re-enact legislative instruments enacted in only one official language.
Regarding the Contraventions Act, the department must implement the federal court judgment in the Contraventions Act case. As part of the review of existing federal, provincial and territorial agreements, additional financial support to the provinces is required to allow for the use of the minority language in proceedings by the provinces under this act.
Concerning the re-enactment of legislative instruments, the department must also ensure that it implements the Legislative Instruments Re-enactment Act.
The act corrects the procedural flaw in legislative instruments originally enacted in only one official language.
The act requires that measures be taken and that their status over the first six years of operation be reported to Parliament. Any legislative instrument that has not been re-enacted within this timeframe will be automatically repealed.
The second set of measures is designed to establish a support fund for access to justice in both official languages. This fund has four components: partnerships, a consultation mechanism, the transfer of the Administration of Justice Program in both official languages and stable funding for French-speaking lawyers' associations and their national federation.
In real terms, better access to justice in both official languages is not possible solely through the cooperation of governments. It requires partnerships with various non-governmental provincial and territorial stakeholders working in the area, including universities, bar associations, provincial associations of French-speaking lawyers and their national federation.
This measure is directly related to the “Environmental Scan” which identifies the lack of bilingual judicial personnel and the costs and delays associated with trials and procedures in the minority official language as barriers to equal access to the justice system for Canadians who are part of official language minority communities.
By entering into partnerships with universities, the justice department has two objectives: training in language rights for law students and future lawyers, and the establishment of a close and lasting cooperation between the universities and associations of French-speaking lawyers.
The findings of a study commissioned by the Association des juristes d'expression française du Manitoba show that graduates from law faculties where the common law is taught in French do not take part in lawyers' associations during the first five years of their working life. It is therefore important to create an interest among young lawyers for practising law in French so that individuals subject to trial can count on them to provide legal and judicial services in their official language. Moreover, these graduates are part of the pool of potential candidates for judicial appointments who are able to hear cases in either official language.
The justice department also intends to maintain and increase its financial support to associations of French-speaking lawyers and their national federation by providing them with stable funding to ensure that these associations can fulfil their lobbying function with governments and play their part in legal education and literacy with official language communities.
Over the past eight years, the department has invested more than $1.4 million in funding projects created by these lawyers' associations and their federation. The department would now like to be able to provide stable financing to these groups. There is no formal association of English speaking lawyers in Quebec, but the department is working with English speaking lawyers within the Barreau du Québec and the Quebec Communities Group Network, the QCGN.
I have already referred to POLAJ, the Program for the Integration of Both Official Languages in the Administration of Justice, which is a unique program within the federal government. The measures we plan include continued development of the legal tools needed for improving access to justice, which was already begun within POLAJ. This program will move from the Department of Canadian Heritage to the Department of Justice.
The third and final type of measures envisaged by the department concern language rights. The department is putting the emphasis on two activities; one involves training and the development of working tools, and the other, increased legal support for the Official Languages Program at Justice Canada.
The target audience for training and the development of working tools will be the department's legal counsel. I think it is high time that we did this. It will focus particularly on the crown prosecutors and civil litigation lawyers in order to ensure that they understand the nature and scope of the department's constitutional and legislative obligations.
These measures will serve as the foundation for the formation of a network of lawyers in order to better serve client departments and ensure that within each department there is a better understanding of the language rights and needs of official language minority communities.
By introducing the measures I have just outlined, the department will ensure that the system better meets the needs of Canadians and particularly members of official language minority communities.
Others will be needed, of course. For example, the Official Languages Act should be reviewed and strengthened.
Perhaps it will be necessary to ask more of the provinces with regard to the administration of certain courts that come under the Official Languages Act, the Canadian Constitution and the Criminal Code.
All that to say that we can feel a willingness, within the government and certainly within the department, to do more than what was done before to give official language minority communities access to the justice system in the language of their choice.
I think that we should perhaps encourage the minister, the government and also those who work within the department, from the highest official, namely the deputy minister, to all those involved in the administration of justice, to do something with regard to official languages. The studies and findings of the Commissioner of Official Languages and of the department itself in its Environmental Scan have made it clear that the situation should be improved.
If the minister agrees, I would invite him to make a few comments on this willingness that is being felt within the government and within his department to ensure greater respect for the laws and for the rights of both official languages communities to have access to the justice system in the language of their choice. Indeed, the Commissioner of Official Languages has made these observations, and so has the department itself in looking at the situation. Everyone agrees that there are significant inadequacies that need to be corrected.
I would like the minister to take this opportunity to tell us about this willingness that can be felt within his department and within the government.