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«Karen Cohl and George Thomson December 2008 Connecting Across Language and Distance: Linguistic and Rural Access to Legal Information and Services ...»

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People rarely experience legal problems without facing non-legal problems at the same time. Viable solutions will require collaboration among legal, community, and government organizations to create synergy and use our collective strengths.

• Solutions should not over-invest in any one technology.

New technology shows great promise for bridging distances in rural and remote areas and connecting people to experts and interpreters. However, technological supports are not an end in themselves and do not work for everyone. Technology is always evolving, and today’s new advances will soon be outdated.

• Answers need to be practical and affordable.

Legal needs will always outstrip demand. We should avoid answers that are too expensive or require more investment of effort in any one solution than is reasonable.

We should avoid duplication of effort and find ways to share resources where possible.

Learning and adapting

• Solutions should be tested, evaluated and adapted.

Solutions should include mechanisms for formal, objective evaluation to determine how they are working and how they can be improved. Solutions also need to be sustainable over the long term. In some cases, solutions should be tested in a limited way and then evaluated to determine whether they warrant full implementation.

• Different answers may work for different communities.

A given solution will not be right for every community. We also need to bear in mind that Ontario’s demographic profile will continue to change. Solutions need to be flexible enough to respond to different communities and future shifts in immigration and settlement patterns.

Law Foundation role

• The Law Foundation of Ontario should act as a catalyst through strategic funding without impinging on the mandates of other organizations.

The Foundation can foster innovative partnerships to promote access to justice, but nothing should detract from the essential role and responsibility of other organizations whose primary obligation it is to enhance access to justice in Ontario.

Proposed new directions In Chapters 2, 3, and 4, we discuss what we learned from our research and consultations about access to justice barriers and practices designed to overcome them. Chapters 5 and 6 set out our key findings and vision for moving forward. Chapter 7 offers recommendations for the Law Foundation to make a strategic investment in the following six areas to improve

linguistic and rural access to justice:

1. Strategies to improve the capacity of non-legal community organizations to provide basic legal information and referral to their clients

2. A coordinated approach for enhancing linguistic and rural access to legal information and services in a designated geographic area

3. Creation of a legal interpretation network to improve access to interpreters, enhance quality assurance, and build a community of practice for interpretation in legal and community settings

4. Pilot projects to test strategies for using videoconferencing to increase linguistic and rural access to legal information and services

5. New articling fellowships to enhance the capacity of organizations providing legal services to persons isolated by language or distance

6. Ways to ensure that knowledge generated from this project and related initiatives is broadly accessible and contributes to our collective understanding of how best to remove barriers to linguistic and rural access to justice.

By providing strategic funding to bring partners together, the Foundation would play a catalyst role in the implementation of each of the six recommendations. In Chapter 7, we also suggest activities for government and leading legal bodies that would make a significant difference to linguistic and rural access to justice and complement the six recommended initiatives.

Chapter 2: Linguistic Access to Justice Assessing the need Unlike other professions or services, law is all about the use of language. It is therefore even more important in the context of law than in other contexts to ensure accurate communication between the service providers and their clients. Legal language is also highly contextualized. It is a reflection of the underlying socio-political systems and values upon which the law is crafted. 5 The statistics alone do not give an accurate picture of the need for language assistance, but they provide some measure of the population in Ontario that may have difficulty accessing legal information or services because of linguistic barriers.

According to 2006 census data, about 1.8 million Ontarians speak a language other than English or French most often at home. According to the same census, nearly 270,000 people have no knowledge of either official language.

Consultation submission, Metro Toronto Chinese and Southeast Asian Legal Clinic.

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 Figures include all ages.

 N.O.S.: “not otherwise specified.” Although not captured in these figures, Community Interpreting in Canada, a 2007 study completed for Industry Canada, included census figures for the number of people whose mother tongue is an Aboriginal language or who speak an Aboriginal language most often at home: Ojibway –12,255 (mother tongue) and 5,925 (spoken most often at home), Oji-Cree – 6,235 (mother tongue) and 3,750 (spoken most often at home), and Cree – 3,495 (mother tongue) and 1,990 (spoken most often at home). 8 Between the 2001 and 2006 censuses, the number of people in Ontario with no knowledge of either official language increased by nearly 34,000. During the same period, the number of people in the province who spoke a non-official language most often at home rose by nearly 275,000. About 98 per cent of both groups live in urban centres with populations of more than 10,000. This illustrates that linguistic access to justice is largely an urban issue. There are exceptions, however, such as the Aboriginal languages spoken in remote communities and predominantly Spanish-speaking migrant farm workers.

Fosburys Experts-Conseil, p. 14.

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Immigration accounts for much of the increase in both the number of people who speak a nonofficial language most often at home and the number of people with no knowledge of English or French. According to Citizenship and Immigration Canada, 644,845 new permanent residents settled in Ontario between 2002 and 2006, 251,502 of whom had no officiallanguage ability. 9 Women are much more likely than men are to come to Canada as family class immigrants or spouses and dependents. As Table 5 shows, spouses and dependents have the highest incidence of no knowledge of English or French. This can have an impact on the next generation. School boards routinely encounter Canadian-born children who need language training on enrolment because their mothers and grandmothers have no official language knowledge.

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The number of people in Ontario who would need some form of language assistance to access legal information or services would likely be somewhere between the number of people who have no knowledge of an official language and the number who speak a non-official language most often at home—between 270,000 and 1.8 million as of 2006.

For the 2006 census, Statistics Canada instructed respondents to indicate that they speak English or French only if they can “carry on a conversation of some length on various topics in that language.” A forthcoming research report by Community Legal Education Ontario notes that, “the ability to carry on a conversation about the weather would not be equivalent to absorbing information about legal rights and reading ability does not appear to be included in this question.” 10 If reading ability—vital to understanding even basic legal materials—is taken into account, the need for language assistance is even greater. The 2003 International Survey of Reading Skills found that in Canada, people whose mother tongue was not an official language had significantly lower literacy levels than native speakers did. 11 Citizenship and Immigration Canada.

Community Legal Education Ontario.

11 S. Grenier, S. Jones, J. Strucker, T.S. Murray, G. Gervais and S. Brink.

The 2007 Industry Canada study on community interpreting helps provide a closer estimate of the need for language assistance. 12 According to that study, about one million Canadian residents need an interpreter to communicate in an official language. Since Ontario has about half the national population that usually speaks a non-official language at home, and about half the population with no knowledge of an official language, it is reasonable to estimate that as many as half a million people in Ontario might need an interpreter. However, that figure can only be a rough estimate of the number of people who would need language assistance in a legal setting.

It is difficult to estimate the number of Ontarians who are Deaf, but there are national statistics available. According to The Canadian Hearing Society, almost 25 per cent of adult Canadians report having some hearing loss, although closer to 10 per cent of people would identify themselves as culturally Deaf, oral deaf, deafened, or hard of hearing. 13 The Canadian Association of the Deaf estimates that 310,000 Canadians can be considered profoundly Deaf. 14 It is also difficult to estimate the number of people who are Deaf who use neither English nor French sign language and thus face additional challenges in accessing legal information and services. Given that aging is the number one cause of hearing loss, The Canadian Hearing Society projects that the incidence of hearing loss will climb dramatically as the average age of Canadians doubles by about 2030.

Languages relative to income Tables 1 and 2 (above) show the non-official languages spoken most frequently at home and the languages spoken by people who do not speak English or French at all, in descending order of prevalence, without regard to other factors. When income level is taken into account, the order of prevalence changes, which indicates that some language groups experience higher levels of poverty than other groups do.

Community Legal Education Ontario commissioned data from Statistics Canada on language groups and after-tax income status based on samples from the 2006 Canada Census for Ontario and five census metropolitan areas (Ottawa, Toronto, Hamilton, Windsor, Thunder Bay).

As the following tables show, languages such as Urdu, Arabic and Farsi “move up the list” for Ontario when income is included as a factor. Accounting for income level and other variables adds complexity to the task of determining priority languages for service, but this information is critical to understanding and addressing the needs of the most vulnerable population groups.

Fosburys Experts-Conseil.

Consultation submission, The Canadian Hearing Society.

14 Fosburys Experts-Conseil, p. 15.

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Small language groups Government and community supports tend to develop over time for large language groups, but they may be lacking when the population speaking a particular language is small or relatively recent to Ontario. Multilingual information is less likely to be available to smaller language groups and it can be much more difficult to access services in one’s own language or through a qualified interpreter.

Ontario often receives an influx of immigrants from a small group with a heightened need for services. For example, large numbers of Karen (an ethnic minority of Burma) refugees have recently arrived in Ontario urban centres. This highlights another problem for small language groups. Karen people speak three distinct dialects, which amplifies the difficulties of the language barrier, such as the availability of qualified interpreters. Indeed, dialects exist in many languages. Since language statistics rarely reflect dialects, many more people may fall into a small language group for practical purposes than the statistics would suggest.

Barriers to obtaining legal information and services Many newcomers suffer from isolation that stems from lack of proficiency in English or French, separation from family members, inadequate housing, cultural barriers, and living in poverty. They are often vulnerable to exploitation due to lack of knowledge of their rights in areas such as tenancy, employment, or education and schooling. Many are not sure where to get help for various problems. 15 This project focused on people who face language barriers and who may also be vulnerable because of poverty, low literacy in their first language, unemployment or under-employment, physical or mental health problems, or a range of other factors. Generally, such persons do not have the financial means to obtain private legal assistance and must rely on public legal aid services or pro bono help, where available. They may not know where to go for help, or may not even know that their problem is a legal one with potential legal remedies. They may also lack the literacy skills (including computer literacy) and the knowledge of the legal system to pursue self-help options.

The vast majority of people who need language assistance are immigrants to Canada and come from countries with vastly different legal systems. Not surprisingly, many are unaware of their basic rights and responsibilities and the structure of the legal system in Canada. (Even people with good incomes and a good grasp of an official language are not fully aware of the justice system until the need arises, usually at a point of crisis in their lives.) Immigrants and refugees may also be hesitant to seek a legal remedy in their new country because they had negative experiences or perceptions of the legal system in their home country, or because they fear repercussions such as ostracism by their community or deportation.

People who do not speak English or French are unlikely to be able to read or understand public legal information unless it has been translated or to communicate without the assistance of an interpreter with legal service providers who speak only English or French. Providing legal information and services in a client’s first language is ideal, but it is not always possible given the number of languages and dialects spoken in Ontario and the limited resources of legal and other organizations providing first-language services.

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