Section 17 – Proceedings of Parliament and of the New Brunswick legislature
Proceedings of Parliament
17.(1) Everyone has the right to use English or French in any debates and other proceedings of Parliament.
Proceedings of New Brunswick legislature
(2) Everyone has the right to use English or French in any debates and other proceedings of the legislature of New Brunswick.
Very similar constitutional provisions apply to the legislatures of Quebec and Manitoba under section 133 of the Constitution Act, 1867 and section 23 of the Manitoba Act, 1870 respectively. See also Section 4 of the Official Languages Act for an expansion of the right provided by subsection 17(1) of the Charter.
Subsection 17(1) of the Charter shares a common purpose with section 23 of the Manitoba Act, 1870 and section 133 of the Constitution Act, 1867 which is to ensure full and equal access to the legislature for Anglophones and Francophones alike (reference re Manitoba Language Rights, at paragraph 31).
Subsection 17(1) affirms the right of any person to use either English or French in the debates and proceedings of the Senate and the House of Commons.
The right to use either official language does not carry with it a corresponding right to be heard or understood by those being addressed (Société des Acadiens, at paragraph 53). Section 23 of the Manitoba Act, 1870, section 133 of the Constitution Act, 1867, and section 17 of the Charter do not impose a duty to provide simultaneous translation for the purpose of Parliamentary debates (in the federal sphere, that right was provided for in subsection 4(2) of the Official Languages Act). Rather, they require that the language right of a participant in Parliamentary debates not be infringed by anyone. As an example, it would be unlawful to expel a member of the House of Commons on the ground that he/she is speaking in either official language in any debates (MacDonald v. City of Montreal,  1 SCR 460, at paragraph 68).
1. Scope of the right: embryo bilingualism or optional unilingualismFootnote 1
(i) Bilingualism in Parliament
Subsection 17(1) of the Charter applies to the debates and committee proceedings of both Houses of Parliament. The right vests in “everyone” participating in them, including Members of Parliament, Senators and the witnesses before Parliamentary committees.
(ii) Bilingualism in New Brunswick
Subsection 17(2) of the Charter replicates the language right provided by subsection 17(1) and applies it to the debates and proceedings of the legislature of New Brunswick (Charlebois v. Moncton (City) (2001), 242 N.B.R. (2d) 259, 2001 NBCA 117 (“ Moncton”), at paragraph 85).
The Charter provisions respecting New Brunswick are the fruit of the province’s legislative and political history and recognize the cultural heritage of the two official language communities. Subsection 17(2) of the Charter ensures equal access for Anglophones and Francophones to the legislature of the province (Moncton, at paragraph 92).
2. Content of the right
Subsection 17(1) provides that everyone has a right to use English or French in the debates and other proceedings of Parliament. The right extends implicitly to the reading and tabling in either official language of documents relating to the debates or proceedings.
3. Legislative advancement
As the rights provided in section 17 of the Charter are a constitutional minimum (MacDonald, at paragraph 104), they may be expanded upon (subsection 16(3) of the Charter). In the federal sphere, this was achieved by way of subsections 4(2) and (3) of the Official Languages Act.
Subsection 4(1) of the Official Languages Act restates the fundamental constitutional right stated in section 133 of the Constitution Act, 1867, as inserted and reaffirmed by section 17 of the Charter.
Subsection 4(2) of the Official Languages Act provides for simultaneous interpretation of the debates and other proceedings of Parliament. Subsection 4(3) provides for the reporting of everything in the official language in which it was said, together with a translation into the other official language (i.e., a fully bilingual Hansard).
Additional information concerning submissions before a Parliamentary committee:
In general, each Parliamentary committee may develop its own criteria for filing briefs and presentations. The clerk of the committee may specify to the witness what the specifications and requirements on the format and content of a brief. The Guide for Witnesses appearing before committees of the House of Commons and the Guide for witnesses appearing before Senate Committees both provide the principal guidelines related to the language of choice in the submission of briefs.
- Briefs and presentations before a committee of the House of Commons: Although individuals or organizations may submit briefs in either official language, briefs are not distributed to members of the committee until they are available in both official languages. Therefore briefs presented in only one of the two official languages must be sent to the clerk of the committee well beforehand to allow sufficient time for translation. Government departments and agencies must submit briefs in both official languages.
- Briefs and presentations before a Senate committee: Briefs may be submitted in either English or French. When a brief is submitted in one official language only, it should be sent to the clerk at least two week in advance, when circumstances permit, to allow sufficient time for translation. Witnesses from federal government departments and agencies are required to submit their briefs in both official languages.
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