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The French connection

|Written By Derek Hill

It’s a time to reflect, as both of Canada’s French common law programs have recently celebrated their 30th anniversaries.

The University of Ottawa, which created its program in 1977, has graduated more than 1,000 students, while la Faculté de droit de l’Université de Moncton, founded in 1978 and celebrating its 30th this year, has produced another 442. Fourteen hundred. Mille quatre cent, if you will.

In many ways, it’s not a large number — certainly not when compared to the roughly 79,000 lawyers in common law Canada — but those numbers have gone a long way toward promoting access to justice in both official languages. “It was almost a bit of a case of ‘If you build it they will come,’” says Stéphane Émard-Chabot, a professor at the University of Ottawa. “The pent-up demand from francophones was definitely there, and as soon as the services were available, they started using them.”

So far the legal marketplace has absorbed those numbers and the demand is steady. “I think it’s rising — not as in ‘Wow, wow, wow!’ — but it is rising, because linguistic obligations have increased in some provinces, like the new Bill C-13 with the Criminal Code. . . .” says Louise Aucoin, president of the Fédération des associations de juristes d’expression française de common law. “In some areas it’s staying the same. We’ve got a big country. It varies.” Last October, Canadian Lawyer reported membership in l’Association des juristes d’expression française du Manitoba had doubled to 100 over the past four to five years, according to Renald Remillard, its executive director. He credited the province’s widespread French immersion programming for the “steep” increase.

“Is there room for more?” asks Émard-Chabot. “Probably. Because there are still a lot of areas that are under-serviced.”

With the milestone anniversary approaching, the University of Ottawa decided to measure how things were going. It commissioned a study of graduates of the French common law program to see if it had attained its objective of meeting the demand for bilingual lawyers by providing services in French to the francophone population: the 2007 Rapport sur les personnes diplômées du programme de common law en français de l’Université d’Ottawa.

Émard-Chabot, co-author of the study, says it was important to have hard numbers to confirm what was until that point only anecdotal evidence about the background and subsequent achievements of their graduates. For example, the statistics verified that the program’s students are coming predominantly from French-speaking towns in eastern Ontario (37 per cent finished their pre-law secondary studies in the capital region and 17 per cent in northern Ontario), plus “a bit from the south and a bit from outside Ontario.”

The data also confirmed what they believed all along — the graduates weren’t returning home. “Disproportionately they are remaining in the national capital region, which is not surprising, given that if they are bilingually competent, the federal government will likely present an interesting option for them — but it does exacerbate the issue of having francophones go back to communities such as Hearst, Ont., that are majority francophone. And from some of the lawyers we’ve spoken with, there’s clearly a need for more lawyers able to serve in French,” says Émard-Chabot. The study shows 62 per cent of graduates live in the Ottawa area.

Similar themes arise at the University of Moncton. Marie-France Albert, dean of the faculty of law, says two-thirds of her students originate from New Brunswick, with the remainder coming principally from the rest of Canada. Locals tend to remain in New Brunswick, while those from the other provinces go to Ottawa or Toronto, she says, with only a handful of them returning to their homes. Once again, even those who stay in New Brunswick are not returning to the small towns from whence they came. “They don’t go back to small towns like Caraquet or Shippagan,” says Albert. “Most of them, they want to stay in Moncton, or they go to Fredericton and Saint John because the big firms are there.”

Ottawa’s study demonstrated there was no stereotypical route, says Émard-Chabot, with people working everywhere and in all types of law and work settings. “And that was really nice for us to see that in fact these francophone students had not been pigeonholed or limited in their opportunities. Quite the contrary.”

“Usually our students who work in French in other provinces are able to talk in French with their clients in a few provinces, to write their legal papers maybe in French — but all the court system is still in English, so except for criminal justice and a few things like that . . . it’s not easy to work in French,” says Albert. “But every day, you have people giving services in French for French-speaking people, and that’s very important.”

Although 30 years of producing bilingual law graduates has improved matters of access to justice in French, some obstacles remain, including the following:

Shortage of French-speaking lawyers in small towns

It’s not a problem unique to French communities, but it’s even harder to find French-speaking lawyers willing to work in small towns when you’re drawing from a smaller pool of qualified candidates.

One potential — and somewhat controversial — solution is the possibility of opening a third law school providing French common law instruction. As people tend to gravitate geographically and attend schools closer to where they live, this might attract more local students inclined to stay in the North, and reduce the often-prohibitive student debt loads incurred by students pursuing their studies away from home. One such proposal was in the works by Laurentian University in Sudbury, although with the decision by the Ontario government to deny funding for new law schools it’s hard to say where it will end up.

“We probably have 10 to 12 lawyers from the University of Moncton here [in Sudbury],” says Claude Lacroix, of Lacroix Forest LLP, and director of the Association of French-Speaking Lawyers of Ontario, “which is kind of one of the impetuses for looking at a law school for northeastern Ontario. We’re often called upon to do work in areas like North Bay where they have few bilingual lawyers, if any. . . .”

However, it’s early yet. There were also competing proposals for law schools from Lakehead University in Thunder Bay, for example, and the idea of adding more lawyers at all — let alone another French common law program — has its detractors. Even if the government hasn’t stepped on board, it still opens up an interesting debate.

Émard-Chabot, for example, says he was “personally concerned” about the numbers being sufficient to support three programs. “You need a certain number of students to justify the number of positions to have a decent list of elective courses, so if you’re running a smaller program it becomes a really restrictive program. . . . The population would just be split to a degree that all three programs would in fact be hurt by it,” he says. “Not that they wouldn’t be viable, but you wouldn’t get the wealth of selection as you would from a program that’s slightly larger.”

On the other hand, the numbers show currently Ottawa receives 150 to 220 applications for 45 to 60 spots, while Moncton receives 90 applications for 35 to 40 places.

In the meantime, the University of Ottawa has implemented a few recommendations from its own study in an attempt to bring more French-speaking lawyers to small towns, including offering fellowships for those going to work or article with sole practitioners in remote communities, and offering more flexibility on internships.

“We have added pieces within what we control to do this, but I think certainly there’s a role for the law society, and frankly, for the provincial government, to support financially the small law firms or the sole practitioners in those communities to hire someone so that they can get established and get their credentials and remain in those communities,” says Émard-Chabot. “A firm in Kapuskasing, Ont., does not have the resources of a firm in Toronto, and certainly not the size. Making it easier for sole practitioners to supervise and obtain articling student[s] would be a wonderful way to eliminate barriers.”

Shortage of bilingual judges

“There’s a very big demand for bilingual judges that can understand cases in French,” says Aucoin. “What’s been happening in Ontario and Nova Scotia, is that bilingual judges have been replaced by unilingual judges. . . . A lot of times because there is such a shortage, people are going to the English system even if they would prefer the francophone system.”

Educating the francophone population

One of the “surprises” that came out of the Ottawa study, says Émard-Chabot, was it became clear that awareness needs to be created in the francophone community that a document in French is as valid as one in English. “A lot of lawyers we chatted with said that their clients — even though they’re francophone — still feel that for a document to be legal, official, and taken seriously, it has to be in English. So you’ll have a pure francophone family, who will request a will, [and it] will be drafted in English, or a pure francophone family who will ask that their house purchase be done in English.

“You should, if you wish, be using your own language. There’s no obligation to switch to English. That message seems to not have gotten through fully yet,” he says.

Continuing education

“Continuing education is not as available in French as in English,” says Aucoin, although she notes the seven provincial associations “de juristes d’expression française” are preoccupied with access to justice in both official languages and are involved in providing such services.

Internal barriers

Finally, there are still some internal barriers within the practice, says Émard-Chabot, which graduating students need to proactively overcome as they enter the workforce. “Even if the firms say they’re committed to offering French services, at times some of the younger lawyers will find it difficult to find an assistant who’s able to do work in French and English. So if the firm says: ‘We want to develop a French practice,’ but the receptionist is unilingual, well, that’s a problem for clients.”

He says recent graduates need to be able to say: “I need this software in French, I need to be able to do these things in French, and develop those tools. . . .”

In retrospect, what have the two French common law programs achieved in the past 30 years? “The biggest single one was really the critical mass it has created — where now there are enough lawyers able to practise in French that things can go on in French — that makes a big difference. If you’re one of a handful, then obviously you’ll still have to function in English. But if there’s a community out there, you can function in French, and I think that has been achieved, for the most part,” says Émard-Chabot.

“I think that our faculty is very important for giving French services to French people in Canada. Our students . . . can work in both languages, and I think that’s very important to our country. It’s very good for the employers and for the clients. They work in government and they work everywhere, doing great for the French justice system in Canada,” says Albert.

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