Judicial Rights

What are judicial language rights?

Judicial language rights pertain to the possibility for an individual to use either French or English in the judicial system, especially court processes.

Section 133 of the Constitution Act 1867 guarantees these language rights in any court established by Parliament (the federal government) and the courts of Québec. Section 23 of the Manitoba Act 1870 and section 19 of the Canadian Charter of Rights and Freedoms guarantees similar language rights in Manitoba and New Brunswick, respectively.

The courts of the other provinces/territories are not bound by any such constitutional provision, and the provincial/territorial governments have the authority to regulate language rights in respect of courts and tribunals in the province/territory and civil matters, except where the Criminal Code, which is federal legislation, says differently (see below for further discussion).

Last Reviewed: May 2011

My son has been charged with a crime and would like his criminal trial to be conducted in French. Is this possible?

Yes.

Criminal law (governed by the Criminal Code of Canada) is in the jurisdiction of the federal government. Therefore, even though criminal trials do not take place in a federal court (they take place in the courts run by the provinces/territories), due to the powers retained by the federal government and the bilingual requirements on the federal government, there is the possibility of having a criminal trial (including the preliminary inquiry) in French. French-speaking judges are available. You can choose to have your criminal trial in French, no matter what your mother tongue, and even if you understand English.

In addition:

• every accused must be informed of the possibility of having his/her trial in French,
• if a French trial is chosen, the Crown prosecutor assigned to the case must speak French, and
• the accused has the possibility of obtaining a translation of the information and indictment (the documents that list the charges against the accused person) upon request.

These rights are contained in sections 530, 530.1, and 530.2 of the Criminal Code of Canada.

To find a French-speaking lawyer that can represent you, contact your provincial/territorial association of French–speaking lawyers or your provincial/territorial Law Society (which keeps a registry of lawyers able and willing to work in languages other than English). See our page of Additional Resources for links.

Last Reviewed: May 2011

If my son’s trial involves a jury, can the jury be formed of French-speakers?

Yes, the jury can be formed of French speakers. This right is guaranteed under s.530 of the Criminal Code of Canada.

Last Reviewed: May 2011

If I have a criminal trial in French, will all of the paperwork and evidence from other parties also be in French?

For criminal trials, forms such as the information can be provided in French, as can the pleadings. In addition, both the Criminal Code and s.14 of the Charter require that interpreters be available to assist the accused and the counsel for the accused during the preliminary inquiry or trial.

However, someone giving evidence has the right to provide it in the official language of their choice. That said, the Criminal Code and the Charter require that interpreters be available to assist any witness during the preliminary inquiry or trial. In addition, if required on the basis of trial fairness, such evidence may be translated.

For more information, contact your provincial/territorial association of French-speaking lawyers or your provincial/territorial Law Society (which keeps a registry of lawyers able and willing to work in languages other than English). See our page of Additional Resources for links.

Last Reviewed: May 2011

I want my criminal trial in French, but my co-accused wants it in English: will I lose my right to a French trial?

No. The existence of co-accused who do not speak the same official language is a circumstance that may justify a bilingual trial. In other words, you can still be tried together and the proceedings can be conducted in both official languages. If there is a jury, the jury members will be bilingual.

Last Reviewed: May 2011

If my criminal trial is all in French, will any written decision be given in French?

Yes. In addition, the decision may be granted in French even if not all of the proceedings were conducted in French (however, a substantial amount must have been in French).

Last Reviewed: May 2011

I have a civil matter going to Court. Do I have a right to a French trial?

It depends.

If the civil matter is one that relates to federal law and it takes place in a federal court or tribunal, yes. However, if the civil matter is one that takes place in a court or tribunal of the province/territory, a French trial may not be possible. This is because the language of civil proceedings is a matter falling under provincial/territorial jurisdiction. Each province/territory can, and does, legislate the use of the two official languages in its courts. Depending on where you live, you may or not may not be able to have your matter heard in French (and it may be more a matter of administrative accommodation, rather than a “right”). For example: in New Brunswick, Ontario, the Yukon, the Northwest Territories and Manitoba you can use French in any court or tribunal. In Saskatchewan, Alberta and Nova Scotia the use of French is more limited, and in British Columbia only English can be used.

For more information, contact your provincial/territorial association of French-speaking lawyers or your provincial/territorial Law Society (which keeps a registry of lawyers able and willing to work in languages other than English). See our page of Additional Resources for links.

Last Reviewed: May 2011

If I have a civil trial in French, will all of the paperwork, evidence from other parties, and decisions also be in French?

For trials in the federal courts and tribunals, pleadings can be required to be in the minority language. However, someone giving evidence has the right to provide it in the official language of their choice, but translations will be made available. Decisions will eventually be in both languages, but may not necessarily be issued in both languages at the same time. They may instead be issued in one language (usually the language of the trial) and then sent for translation.

For civil matters heard in courts and tribunals of the province/territory, the laws vary by jurisdiction. For further information, contact your provincial/territorial association of French-speaking lawyers or your provincial/territorial Law Society (which keeps a registry of lawyers able and willing to work in languages other than English). See our page of Additional Resources for links.

Last Reviewed: May 2011