Speech At The Community Reception For Judges Of The Supreme Court Of Canada

  • November 26, 2019
  • Alain Laurencelle

Judges of the Supreme Court,

Ladies and gentlemen,

I am very happy to stand before you today to say a few words about access to justice in French in Manitoba. I’m speaking to you as president of the Association des juristes d’expression française du Manitoba, an organization of roughly a hundred people working in the legal field and interested in law in French.

One of our foundational principles is that bilingualism of legislative and judicial institutions is a value and an asset to society, and deeply rooted in Manitoba’s history.

Section 23 of the Manitoba Act, 1870 includes constitutional guarantees of parliamentary, legislative and judicial bilingualism. In 1985’s Re Manitoba Language Rights, the Supreme Court of Canada commented as follows on the intended purpose of section 23: “the purpose of […] section 23 of the Manitoba Act, 1870 […] was to ensure full and equal access to the legislatures, the laws and the courts for francophones and anglophones alike”.

In addition, recent research has shown that an even earlier system of legislative and judicial bilingualism existed in the Council of Assiniboia, the civil authority appointed to govern the Red River colony during the half-century before the province of Manitoba was created in 1870.

Unfortunately, in 1890, a provincial law called the Official Language Act illegally abolished the constitutional guarantees granted only 20 years previously in matters of bilingualism of the laws and the courts. It would take until the end of the 1970s for the Supreme Court of Canada to hear the case and re-establish these guarantees with the Forest decision. And so, for nearly a century, Manitoba’s Francophones were accustomed to the fact that everything to do with the law happened in English.

During this dark era, Manitoba’s French-speaking lawyers were forced to argue cases before the courts in English only, and to draft nearly all legal documents in English. They served their French-speaking clients by giving legal consultations in their own language and explaining the contents of English documents to them in French.

Francophone lawyers—nearly always trained in unilingual, Anglophone law schools, as the first common law program in French was not created until 1978—did their best to establish French equivalents for terms in English legal documents, on a more or less ad hoc basis.

The Forest ruling and, five years later, Re Manitoba Language Rights, completely changed the situation. Litigants once again had the right to bilingual laws and justice in French. Francophone lawyers celebrated their victory, while recognizing that access to justice in French would need to be rebuilt from the ground up. First, they needed to address the almost complete absence of any institutional structures within the legislative and judicial systems that met Francophones’ needs in their own language. Second, they needed to learn common law vocabulary in French—vocabulary that had barely begun to be developed—and they needed to create law templates based on that vocabulary. This was, it goes without saying, an absolutely massive undertaking.

Let’s fast-forward to 2019, almost 40 years after the Forest ruling, and take a quick look back at the path we’ve taken to get here.

First there has been significant progress:

  • In terms of legislative bilingualism, all provincial laws and regulations have been in both French and English since 1990.
  • And for judicial bilingualism, the courts operate in both official languages. More specifically:
    • Each court can count on a number of bilingual judges. However, the federal and provincial governments must stay vigilant in their nomination processes, to ensure they maintain a critical mass of bilingual judges at all levels of the judicial system.
    • There are bilingual lawyers in several large firms in downtown Winnipeg.
    • There are many bilingual lawyers at both Manitoba Justice and Justice Canada.
    • The Provincial Court has set up a circuit court that consistently holds hearings in both official languages.
    • Those in the judicial system—judges, Crown attorneys, officers of the court, probation officers and interpreters—have access to top‑quality programs for improving their judicial French.
  • More broadly:
    • The UniversitĂ© de Moncton and the University of Ottawa have had full common law programs in French for several decades.
    • The Faculty of Law at the University of Manitoba will soon offer a legal training certificate program in French.
    • The Association des juristes d’expression française du Manitoba has done outreach and liaison work with government and judicial institutions to increase access to justice in French.
    • The Infojustice Manitoba centre provides free legal information in French to the Francophone population.

Let us turn now to the other side of the coin, and list the main areas where we still fall short:

  • There are very few bilingual lawyers in the private bar specializing in criminal or family law, even though these two legal areas are in growing demand. We must take active steps to increase recruitment in these areas over the next few years.
  • The Royal Canadian Mounted Police and the Winnipeg Police Service strive to provide some services in French. However, both police forces have a great deal left to do to achieve the active offer they are legally obligated to provide.
  • Manitoba’s general legal aid program does not include a single bilingual lawyer among its staff. This, too, illustrates the scarcity of bilingual lawyers in criminal and family law. Once again, we must implement strategies to correct this in the medium and long term.

Alongside these changes in the legal sector, the fabric of Francophone society in Manitoba has profoundly changed over the past forty years. Immigration, marriage outside the community, and French immersion have combined to make for a plural Francophone identity that is very different than the traditional understanding.

Considering the image I’ve just sketched out, it will be essential to capitalize on the successes of the last few years, and continue to improve access to justice in French and fashion services that match the reality of our changing Francophonie.

In closing, I would like to emphasize that the courts in general, and the Supreme Court of Canada in particular, play a vital role in defending minority rights. They are a kind of defensive rampart against the rule of the many. The progress made on behalf of the Francophone community since the Forest decision, in bilingual laws, bilingual courts and school administration, are glowing examples.

Thank you very much for your attention.