Various rules govern the use of English and French in the Canadian court system. This HillStudy focuses on the federal government’s role in the matter, looking particularly at the issues that relate to bilingualism in the Canadian court system.
A number of different acts govern the administration of justice in the two official languages, including the Constitution Act, 1867, the Canadian Charter of Rights and Freedoms and the Official Languages Act. In addition to these constitutional and legislative obligations, a number of other acts and regulations establish specific criteria for the respect of the official languages by the federal courts.
Canada’s justice system is both bilingual and bijural, and federal courts are called on to interpret legislation that reflects these realities. The English and French versions of federal legislation have equal force of law and are co-drafted such that they are of equal value.
Given the nature of federal court operations, the use of English and French occupies an important place in submissions, communications and proceedings. In order to permit litigants to exercise their language rights, translation and simultaneous interpretation services are offered under certain conditions.
Lastly, the judgments of federal courts have been made available in both official languages since the adoption in 1969 of the first Official Languages Act, which was overhauled in 1988. However, making them available simultaneously and ensuring that both language versions are of the same quality still face obstacles. The delays associated with translating some court judgments have generated requests to clarify the obligations that arise from this Act.
Criminal law is an exception, because the use of official languages is governed by the Criminal Code. Under the Criminal Code, wherever they are in Canada, an accused person is entitled to a trial in the official language of their choice and to have the charges and criminal information translated. This requires courts that deal with criminal cases to be institutionally bilingual.
Despite the existing obligations, full implementation of judicial bilingualism has not yet been assured. The appointment of bilingual judges in the provincial and territorial superior courts and courts of appeal and in the Supreme Court of Canada gives rise to numerous debates. That said, the federal government is taking steps to address the lack of bilingual capacity in the federal judiciary. Accordingly, advisory committees assess the skills of candidates for the federal judiciary and examine, among other factors, their level of bilingualism.
The right to be heard in the official language of one’s choice without the use of an interpreter has been fuelling parliamentary debates for several years now. Offering language training to all justice professionals and assessing their language abilities form part of the solutions to improve equitable access to the justice system.
During the 42nd Parliament, the Parliament of Canada made some improvements to protect language rights in criminal law and family law. Then, during the 44th Parliament, it amended the Official Languages Act to ensure that Canadians have equal access to the justice system in both official languages. This issue directly calls for cooperation between the federal, provincial and territorial governments and all stakeholders in the justice system.
The federal government is also aware of the challenges to overcome and has offered funding, for more than two decades, to increase the capacity of networks, improve training and facilitate access to justice services in both official languages. The objective is to ensure equal access to services of equal quality for anglophones and francophones in Canada.
The rules that govern bilingualism in the Canadian court system will continue to evolve in the years to come in response to case law, legislative changes and evolving attitudes within Canadian society.
Read the full text of the HillStudy: Bilingualism in Canada’s Court System: The Role of the Federal Government
By Marie-Ève Hudon, Library of Parliament
Categories: Education, language and training, Executive summary, Law, justice and rights