Over the past year leading Manitoba legal actors have launched a series of measures that aim to raise awareness within the province’s legal profession over the principle of legislative bilingualism, ensure that lawyers are mindful of clients’ language rights, and to respond to a growing need for legal services in French due to increased immigration from French-speaking nations, according to legal pundits. Unlike the other provinces, except Quebec and New Brunswick, Manitoba has a constitutional requirement of judicial bilingualism.
Tarik Daoudi, general manager, Association des juristes d’expression française du Manitoba
Many “traditional” Franco-Manitobans, proficient in both English and French, have long been satisfied receiving legal services in English, often having exchanges with their counsel in French but ending up filing documents in English, even though they have a constitutional right to do so in French, explained Daoudi.
But there’s been a demographic change in the French-speaking population in Manitoba, added Daoudi. Since Manitoba created the Provincial Nominee Program in 1998, more than 170,000 immigrants and their families have arrived in the province, according to the 2023 Report of the Immigration Advisory Council. The report notes that Manitoba is “uniquely situated to acquire” more francophone immigrants due to the bilingual nature of the province. Out of a population of 1.3 million, 970,000 Manitobans said their mother tongue was English, nearly 37,000 declared it was French, and almost 300,000 stated it was neither of the official languages, reveals the 2021 census by Statistics Canada.
“Many newcomers come to settle in our province, believing that it is perhaps a little more bilingual in practical terms than it really is, and who are much more comfortable in French than in English,” said Daoudi. “So there’s a whole new population that really needs legal services in French, particularly in family law.”
The Manitoba legal community is attempting to bridge that gap. In April 2022, the Court of King’s Bench set the tone by publishing a notice that required briefs and pleadings filed by parties to contain both English and French versions of the bilingual provisions cited in them, followed by the Manitoba Court of Appeal five months later in August, a move emulated by the Provincial Court this past March. “This will have practical impacts when there are small differences in interpretation between the two versions of a law,” said Daoudi.
More recently still, in February benchers at the Law Society of Manitoba gave final approval to amendments approved to commentaries to Rules 3.2-2A and 3.2-2B of the Code of Professional Conduct. Under these two rules, lawyers have a duty to inform clients of their language rights, and they must not take on a case unless they are competent to deliver services in the client’s official language of choice. The actual wording of the two rules did not change but the commentaries, which flesh out the obligations and which were done in collaboration with the AJEFM, have become more expansive, said Darcia Senft, director of policy and ethics at the Manitoba law society. More information has been added regarding s. 23 of the Manitoba Act, 1870 and the clients’ rights to full and equal access to the laws and to the courts in Manitoba in both French and English. The modifications also address s. 23.2 of the Divorce Act that grants individuals the right to instigate proceedings in either official language.
Darcia Senft, director of policy and ethics, Law Society of Manitoba
But the law society’s efforts will not stop there. Fully aware that lawyers “are busy people” who don’t always read commentaries, the law society intends in the near future to issue a practice direction that will expand on the commentaries, said Senft. Also in the works, and in collaboration with AJEFM, is Continuing Professional Development activity, most likely a webinar with a panel of speakers, that will be primarily tailored to lawyers who do not have the required language skills to provide their professional services in French, added Senft.
“It’s a multipronged approach to really let lawyers know this is kind of a big deal,” said Senft. “Manitoba is special, a unicorn if you will. New Brunswick, Manitoba and Quebec have constitutionally protected language rights, and you really need to know about this. It’s another arm to educate our members. It’s all part of competence. They have to understand their ethical obligations and then be competent enough to provide services the client wants and if they aren’t, their duty is actually to decline the retainer.”
Daoudi, pleased by the law society’s “super collaboration” and openness to change, points out however that practical challenges remain to be tackled. The law society and the AJEFM still have to figure out what happens when one party files documents with the court in French and the other in English. The question of who bears the burden of paying for translation costs or fees for an interpreter is still up in the air, said Daoudi. “We are talking about equal right of access to the courts,” added Daoudi.
The Faculty of Law at the University of Manitoba, one of the few English common law institutions to offer bilingual legal education, is also doing its share. Law students at Robson Hall have for the past decade been able to pursue part of their legal education in French. But last fall the law faculty launched a concentration in Access to Justice in French (A2JF) thanks to financial support it received in 2019 from Justice Canada’s Access to Justice in Both Official Languages Fund. The funding allowed Robson Hall to expand its French-language offering to nearly 40 credits of bilingual core and optional courses that will help students be able to practice in both official languages, said Lorna Turnbull, professor and co-director of the concentration. Students who have taken 26 credits of bilingual courses, out of a total of 92 credits, will be eligible to earn the A2JF concentration.
Lorna Turnbull, professor and co-director, Access to Justice in French, Faculty of Law, University of Manitoba
Seven law students are taking part of the A2JF concentration this year, a figure Turnbull hopes will reach 12 to 16, which would represent 15 per cent to 20 per cent of its incoming class, a much higher proportion than the proportion of francophones in the province. In order to dispel the notion that law students taking the concentration might be at a relative disadvantage compared to students taking part in the English program, first-year courses will be offered on a pass/fail basis, said Turnbull, who is convinced that A2JF law students will become ambassadors to the profession as a whole. “There’s that initial hurdle,” added Turnbull. “It’s extra work for those students, and law school is difficult enough as it is. So we are going to be making sure that we are able to provide adequate and practical supports, and proper encouragement so that the students feel that it is worth putting out all that extra effort, and that it’s going to pay off.”
There is still much work to be done, even though there has been some progress, said Daoudi. On June 1, federal Justice Minister David Lametti made two judicial appointments. Federal Court of Appeal Justice Marianne Rivoalen was appointed the new Chief Justice of Manitoba, while Gerald Heckman, a professor at the University of Manitoba’s Faculty of Law who served as co-director of the A2JF concentration, was appointed a judge of the Federal Court of Appeal. But there is still a dearth of bilingual judges in Manitoba, particularly at the Family Division at Court of King’s Bench. “We’re trying to do everything we can to make people aware of language rights here,” said Daoudi.
Turnbull is optimistic that those efforts will pay off. “Buy-in from the legal community will be happening in this province because of the nature of the profession,” said Turnbull. “And as more signals and clearer and stronger signals are sent in various ways, but certainly by the law society and the courts, that will make a difference.”