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A Vision for the Future:
The Role of Canada’s Legal Community in Promoting
Linguistic Duality and the National Conversation

Notes for an address at the Canadian Bar Association’s
Canadian Legal Conference

Graham Fraser – Commissioner of Official Languages

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I am pleased to be with you today to take part in the Canadian Bar Association’s Canadian Legal Conference. I would like to thank the Conférence des juristes d’expression française de common law for inviting me to give this address.

My remarks, as it turns out, fall between two anniversaries – both of which are relevant to our discussion.

Just over a year ago, on July 31, 2006, Dugald Christie was killed while cycling across Canada as part of his mission to draw attention to the barriers that exist for the poor seeking justice in Canada. Dugald was a close friend and almost a relative: he and his sister spent the war years in Montreal with my parents. I want to salute his memory, and remind you of the importance of his cause. Dugald Christie dedicated his life to justice, particularly access to justice for the poor.

The question of language rights in Canada is closely related to precisely that issue: access to justice.

The other anniversary I would like to underline occurred here at a meeting of the Canadian Bar Association, almost 40 years ago. Pierre Trudeau was then minister of justice, and working on a white paper that laid the groundwork for what would become the Canadian Charter of Rights and Freedoms 15 years later. He spoke to the Canadian Bar Association’s 49th annual meeting, and gave delegates an indication of where Canada was headed.1

During that address, he spoke of the need for a constitutional declaration of rights, a bill that would recognize rights “of special importance to Canada arising … from the fact that this country is founded on two distinct linguistic groups.”

In those remarks, he defined language rights as two-fold: the right to learn and the right to use. The entire edifice of language rights built since then rests upon those two pillars, including the Official Languages Act of 1969 and 1988, the Charter of Rights and Freedoms, and the definition of the nature and scope of those language rights set out in Supreme Court decisions like Mahe, Beaulac, Arseneault-Cameron and Solski.

In his comments to the CBA, Trudeau called upon members of the legal profession to not only advocate respect for the Constitution but also to take action to encourage development of the Constitution and furtherance of linguistic duality in general. 

Let me cite a very significant observation, made 34 years ago: “The protections accorded [to] linguistic … minorities are an essential feature of the original 1867 Constitution without which Confederation would not have occurred.”2

I am quoting from the decision of the Ontario Court of Appeal in the Montfort Hospital case.

The issue is simple, clear, and extremely important. The Court of Appeal states that there would be no Canada if the Fathers of Confederation had not ensured that linguistic minorities would be protected and respected in the country they helped found.

All my life, as a journalist and ordinary citizen, I have never doubted that the success of Canada depends on the success of its language policy. This success requires the deepest respect for linguistic duality and minorities.

As Commissioner of Official Languages, I intend to do my utmost to ensure that the Official Languages Act is respected, its raison d’être understood and its objectives recognized as fundamental values intimately linked to Canadian identity. I think the primary value underpinning Canadian language policy is respect: we must all demonstrate respect for both official languages, for unilingual Canadians and for minority language communities; respect for citizens, taxpayers, parliamentarians and public servants.

Accordingly, linguistic duality and respect for language rights is everybody’s business. We all have responsibilities in this regard. The values of respect, generosity and integrity on which linguistic duality is based should inspire us all.

Forty years after Trudeau’s speech and with these values in mind, let us examine the extent to which the Constitution and Canadian society as a whole have changed since Trudeau addressed your association. More importantly, let us examine what we, as Canadian citizens, and you, as members of the legal profession, can do to continue and further the principles upon which linguistic duality is based.

It is quite an understatement to say that much has changed in the past 40 years. It would be more appropriate to speak of a revolution.

The Royal Commission on Bilingualism and Biculturalism revolutionized the way Canadians understand linguistic duality and the role of language in the national conversation. At the time, the Commission surprised many by stating that Canada was passing through the greatest crisis in its history, and in recommending that Canada formally recognize English and French as the country’s official languages.

The Commission also proposed a new partnership between English-speaking and French-speaking Canadians. The Government of Canada would function in both languages and the provinces would be encouraged to offer public services in the minority language, where demand was sufficient. Also, more would be done to recognize the contribution and heritage of cultural communities.

Today, we have two official languages that are spoken, taught and learned from coast to coast to coast. Canadian society is increasingly diverse as both official language communities welcome among their midst new Canadians who choose to become members of one or both of these communities. 

When speaking of the changes that have taken place in the past 40 years, one cannot underestimate the impact of the Charter.

The Charter represents a unique Canadian compromise – a document that emerged as a synthesis of the Westminster parliamentary tradition and the Civil Code. The debate around its creation centred on how to resolve the tension between these two traditions; the quarter century since its introduction has confirmed that these two traditions can work together.

Constitutional language guarantees were entrenched and the scope of those rights was more clearly defined through judicial pronouncements in the years that followed. The Charter ensured that Canadians, regardless of their official language, could communicate with and access services from the federal government in the official language of their choice, subject of course to certain limits. Both English and French were granted an equal status in the workings and activities of Parliament. Members of the English-speaking minority in Quebec and French-speaking minorities outside Quebec were guaranteed the right to educate their children in their official language. And every Canadian was granted the right to use the official language of his or her choice in proceedings before any court or tribunal established under federal authority.

The language rights provisions of the Charter are among the few that require unanimity among federal and provincial governments to be amended. They are not subject to the notwithstanding clause. Both of these characteristics, in and of themselves, underscore the importance our democracy has attributed to these rights.

The language guarantees set out in the Charter have been instrumental to the continued vitality and development of official language minority communities. However, the Charter’s influence does not end there. I would go so far as to say that the Charter has fostered a national conversation between the courts, governments and members of both official language communities – a dialogue which has enabled linguistic duality and language rights in general to evolve.

The result of what I like to call “the national conversation” is evident in matters of access to justice, a subject that is near and dear to most of you gathered here today.

Our country has a bilingual and bi-juridical legal system that is a model for the world: a place where civil and common law systems coexist and intertwine and where the English and French languages can be used before most Canadian courts – although admittedly to varying degrees.

In the last 40 years, access to justice in both official languages has progressed remarkably at both the federal and provincial levels.

At the federal level, the Charter, the Official Languages Act and the Criminal Code set out specific language guarantees that seek to ensure members of both official language communities have access to justice in the official language of their choice.

For example, the Official Languages Act grants a party appearing before a federal court or tribunal the right to be heard by a judge that understands his or her official language without the need for translation. A party is also entitled to plead his or her case – either orally or in writing – in his or her preferred official language while the federal crown has a corresponding obligation to use the language selected by the opposing party. Likewise, the tribunal or court has a duty to render its judgment in the official language or languages of the parties appearing before it. New Brunswick’s Official Languages Act grants similar rights in matters before that province’s courts.

In addition, the Criminal Code grants an accused the right to a trial in the official language of his or her choice, regardless of where the trial is held. The provisions of the Code also require such a trial to be held before a judge or jury that understands the official language of the accused without the use of translation or simultaneous interpretation. Any criminal law attorney will attest to the importance of an accused being able to understand first hand – and not via translation – the legal proceedings likely to determine his or her fate or future.

For this reason, judges throughout Canada who preside over criminal proceedings currently have a duty imposed upon them by the Code to notify an unrepresented accused of his or her right to request a trial in the official language of his or her choice.
As many of you may be aware, a bill is currently before Parliament that, if adopted, will require judges to advise all accused of this right, regardless of whether they are represented by counsel. This proposed modification to the Criminal Code will increase awareness among the public and the legal profession of the existence of this right and lead to a more just and equitable legal system for all accused, regardless of their official language.

In addition to advancements at the federal level, the provinces and territories have played an important role in matters of access to justice. Laws and policies regarding access to justice in both official languages have been adopted in many but not all provinces and territories. However, these laws and policies vary considerably in terms of the rights they recognize. Among the most progressive of the provincial laws are New Brunswick’s Official Languages Act and Ontario’s Courts of Justice Act. Along the same lines, a Government of Manitoba initiative has established a bilingual provincial circuit court, thus creating additional opportunities for Francophones of that province to use their own language before the courts.

Official language minorities across the country are increasingly claiming the rights these laws afford them. One of Alberta’s first ever French-language trials was held earlier this year.3 English-language cases from the province of Quebec have helped confirm the constitutional validity of language rights established in the Criminal Code,4 while there is a case currently before the Court of Appeal of the Yukon Territory on the issue of access to justice in French.5 Similar case law has emanated from the courts of most provinces and territories.

I am confident we have accomplished much in matters of access to justice in the past 40 years. That is not to say that our work here is done. Much more is needed.

Members of official language minority communities continue to be underserved by the legal profession and to encounter difficulties in exercising their language rights before the courts. When they do choose to exercise their rights, they are faced with numerous obstacles and administrative delays, which can discourage some of the most tenacious litigants.

In large parts of the country, there is a shortage of lawyers able to represent their clients before the courts in both official languages. Most Canadian law schools do not adequately make their students aware of the existence and importance of these language rights. The majority of law students graduate knowing only half of the laws they studied – either the English or the French half. Once called to the bar, lawyers are rarely made aware or reminded of these rights and their importance for their clients.

Institutional hurdles are also numerous. There continues to be a shortage of judges able to hear cases in either official language – particularly before provincial and territorial trial and appellate courts. An insufficient number of judges able to hear cases in both languages is being appointed to the bench; bilingualism is often not given enough weight in the selection process for members of the judiciary, despite language being demonstrated as an important aspect of access to justice.

A shortage of bilingual court personnel and legal and administrative resources often compounds the lack of bilingual judges.  

Although access to justice has long been a preoccupation of members of the legal profession, it has become even more of an issue for official language minorities since the abolition of the Court Challenges Program. As the CBA itself recognized in a resolution it adopted in 2006,6 the Court Challenges Program played a vital role in increasing access to justice for marginalized and vulnerable groups and made a unique contribution to democratic values. The Program allowed for the advancement of equality and language rights and reinforced an underlying principle of Canada’s justice system: that all citizens must be able to fully exercise the rights granted to them by the Constitution and the Charter.

My purpose here is to bring attention to the role that members of the legal profession can play – either individually or as a whole – in improving access to justice in both official languages.

Promoting linguistic duality and advancing language rights are often seen as the domain of the federal government and minority-language communities.

But we must not lose sight of the fact that others play a decisive role in making linguistic duality a central component of Canada’s legal system. 

As members of the Canadian legal community, you are key players and ones that have been too often absent from the national conversation on linguistic duality.

In the best of worlds, all Canadian lawyers would be sufficiently bilingual to represent their clients in both official languages – whether practising in Kelowna, Trois-Rivières or St. John’s. However, the language rights set out in the Charter and elsewhere do not seek bilingualism for all. Those rights are to ensure that Canadians can benefit from the use of their own official language before the courts. To accomplish this, a sufficient number of lawyers, judges and court personnel require an adequate knowledge of either or both official languages. 

As individuals, you play an important role in advancing linguistic duality and access to justice. This role can take many forms. You can – and should – advise your clients of their right to proceed before the courts in the official language of their choice. You can encourage your clients to exercise that right when they wish or when you feel it would be in their interest. If you have adequate knowledge of your client’s preferred official language, you can represent your client before the courts in that language.

Continuing legal education is available for lawyers to learn, maintain or improve their legal vocabulary in both official languages. Law firms can and should make efforts to ensure their personnel have the capacity to serve clients in both official languages and have access to the support staff and technical and legal resources to do so.

The advantages of bilingualism for individual lawyers and law firms are numerous, be they financial, professional or personal. Bilingual lawyers have an important competitive advantage regardless of the region or province in which they practise. Not only do these lawyers attract a wider local client base, they are increasingly sought out on the national and international scene for their ability to work with and interpret federal and international instruments, and their ability to represent individual and corporate clients throughout Canada.

Bilingualism has obvious financial and professional advantages for lawyers seeking work in the public sector, whether in the federal or provincial governments.

Although individual lawyers have a role to play, so do Canada’s faculties of law. More must be done to recognize that Canada’s legal system is a bilingual and bi-juridical one. English and French are Canadian languages, not foreign languages. Both English and French are routinely used before the courts and some knowledge – even a passive knowledge – of both languages is required to properly interpret federal and international statutes and instruments.

Canadian universities can enhance linguistic duality and access to justice by providing opportunities for law students to learn the legal vocabulary needed to represent their future clients in the other official language. For example, faculties of law could provide exchanges with universities offering common law programs in the French language or English-language civil law programs. Furthermore, all faculties should add to the core curriculum a brief component dealing with language rights and the advantages of being able to represent clients in both official languages.

Lastly, the Canadian Bar Association and its provincial and territorial counterparts have an important contribution to make. As the CBA has done in the past, these associations should use their political clout to urge the federal, provincial and territorial governments to appoint an adequate number of bilingual judges in all courts to ensure equal access to justice for litigants. Furthermore, bar associations should call upon all orders of government to increase their financial contributions for access to justice in both official languages. These professional associations have powerful allies in the various associations des juristes d’expression française, both provincial, territorial and federal. The Fédération des juristes d’expression française, the Conférence des juristes d’expression française de common law and their various regional equivalents have long been striving to improve access to justice in both official languages.

I would be remiss in speaking of the role that professional associations can play in matters of access to justice without recognizing the fact that some provincial law societies – notably those of Ontario and New Brunswick – have included in their codes of professional conduct a duty incumbent upon all counsel to advise their clients of the right to proceed before the courts in the official language of their choice. I would encourage the Canadian Bar Association and all other provincial and territorial bar associations to do the same.

Although I have gone on at length about the role of lawyers in advancing linguistic duality and access to justice, I would also urge you to consider your corresponding role as Canadian citizens to advocate and embody the values and beliefs that underlie the Constitution and Charter, in which linguistic duality and the respect for minorities are key components. Dugald Christie was a living example of that. Both as a lawyer and as a Canadian citizen, he not only advocated change but took action to bring it about. He dedicated his life – both before and beyond the Courts – to improving justice. His contribution will be felt for years to come.  

Similarly, it is no coincidence that much of the progress made in language rights in the past 40 years has been spearheaded or accomplished by members of the legal profession, both as legal counsel and as litigants. Much of the case law – and I think for example of the Bilodeau, Rémillard and Doucet cases – is attributable to lawyers who have sought to advance linguistic duality and language rights in general.

In my career as a journalist and now in my role as Commissioner of Official Languages, I have been – and continue to be – struck by the extent to which members of the legal profession have responded to the challenge Trudeau issued 40 years ago. You advocate respect for the Constitution, but you also work actively to strengthen it.

Thank you.

1 Pierre Elliott Trudeau, “A Constitutional Declaration of Rights: An Address to the Canadian Bar Association, Sept. 4, 1967” in P.E. Trudeau, Federalism and the French Canadians, Macmillan, Toronto, 1968

2 Lalonde v. Ontario (Commission de restructuration des services de santé) (2001), 56 O.R. (3d) 505 (Ont. C.A.), at para. 81

3 R v. Caron : currently pending before the Provincial Court, court file No. 040241291

4 R. v. Cross (1998), 128 C.C.C. (3d) 161 (Quebec Court of Appeal); R. v. Montour, [1998] A.Q. no. 2630 (Quebec Court of Appeal)

5 Kilrich Industries Ltd. v. Halotier, [2004] YK No 132; appeal pending before the Court of Appeal of the Yukon Territory (Court file No 04-YU525)

6 Resolution 06-01-A carried by the Council of the Canadian Bar Association at the Annual Meeting held in St. John’s, Newfoundland and Labrador, August 12-13, 2006.