Environmental Scan: Access to Justice in Both Official Languages
Chapter 1: History of Language Rights in Canada
The analysis that follows is a summary of the theoretical and applied research relating to access to justice in the two official languages in Canada.
We would note that the text will be divided into five parts: I-constitutional provisions; II-statutory provisions; III-the rules of interpretation applicable to language rights: recent decisions; IV-Beaulac and the right to a trial in French in criminal cases: section 530 of the Criminal Code; and V-the civil courts.
The Constitutional Powers of Parliament and the Legislatures in respect of the Official Languages in the Administration of Justice.
Under the initial compromise of 1867, the provinces retained overall jurisdiction over the administration of justice. A number of exceptions were made that qualify this principle: Parliament has jurisdiction over the criminal law and criminal procedure, and may establish courts for the proper administration of the laws of Canada; in matters ancillary to its primary jurisdiction, it may legislate in relation to prosecutions and proceedings to enforce its legislation (for example, fisheries, income tax, competition, bankruptcy); the Governor General appoints the judges of the superior courts, although the courts themselves are under provincial authority, and Parliament pays the salaries and pensions of their judges. Of course, those constitutional powers are subject to the requirement of respect for the language rights guaranteed by the constitution itself.
There could have been some doubt as to the power of Parliament or the legislatures to legislate in relation to official languages. The Supreme Court has recently held that jurisdiction in this area is shared: each level of government may regulate the language aspects of a particular legislative field. That conclusion expressly confirms the opinion stated in Jones v. Attorney General of New Brunswick.
While criminal law and procedure fall within the legislative authority of the Parliament of Canada, and so Parliament may legislate in relation to the language to be used in criminal law, jurisdiction in relation to the courts belongs to the provinces, under subsection 92(14) of the Constitution Act, 1867. Parliament has exclusive jurisdiction over the courts established under section 101 of the Constitution Act, 1867: the Supreme Court of Canada and any other court charged with administering the "Laws of Canada". There are those who doubt that section 101 allows Parliament to remove any provincial superior court's criminal law jurisdiction and assign it to a provincial court, or even a federal court. In any event, if Parliament, in the exercise of one of its enumerated powers, does not legislate in relation to the language in which proceedings under an Act will be conducted, the provincial rules in respect of language will apply by default.
Having regard to the division of powers, the situation seems to be as follows:
- Parliament may give persons who appear in the federal courts rights, and impose obligations on federal courts and quasi-judicial bodies in relation to rights; in any case heard by those courts and bodies, those rights and obligations will apply. If Parliament decides to delegate the enforcement of those laws to courts established by the provinces, it may still demand compliance with language requirements.
- Parliament may grant language rights in criminal law matters in Canada: consequently, in proceedings relating to any charge under the Criminal Code, those rights will be available in any criminal court of competent jurisdiction. At present, the courts in question are the courts in the provinces: the superior courts (whose judges are appointed by the federal government) and the provincial courts.
- The provinces have general jurisdiction in respect of the procedure that applies to proceedings in the courts, courts of appeal, superior courts and provincial courts and in provincial administrative tribunals exercising quasi-judicial powers. The provincial language rules apply to any process or proceeding by or in those courts, unless Parliament has enacted other rules in the exercise of one of its own powers.
- The provinces have exclusive jurisdiction in relation to the language of proceedings relating to offences under provincial legislation.
- The powers of Parliament and the legislatures are limited by their constitutional obligations (at present, in addition to Parliament, three provinces have such obligations: New Brunswick, Quebec and Manitoba).
Section 133 of the Constitution Act, 1867 and Section 23 of the Manitoba Act, 1870
Section 133 of the Constitution Act, 1867 reflects one of the initial compromises of the federation. That provision guarantees that either the English or the French language may be used "in any pleading" in the courts of Canada or Quebec and "in any process" issuing from those courts. Section 23 of the Manitoba Act, 1870 is to exactly the same effect for that province.
The Supreme Court of Canada has held that section 133 itself does not prevent Parliament from enacting laws that confer
"additional rights or privileges" or impose
"additional obligations respecting the use of English and French, if done in relation to matters within the competence of the enacting Legislature". That proposition, which is referred to as the "principle of advancement", was confirmed by subsection 16(3) of the Charter. Section 133 is part of the initial compromise of the federation; it may not be altered unilaterally, either by Parliament or by the legislature of the province.
The Supreme Court has also defined the scope of section 133; it extends to all
"statutory agencies which are adjudicative". The Court added that Quebec could not relieve itself of its constitutional obligations and curtail the guarantee given in section 133 by the
"substitution of adjudicative agencies for Courts".
In Forest, the Court adopted the conclusions stated in Blaikie and asked whether there was anything in Manitoba's situation that required a different conclusion. It then did a technical analysis of the meaning of the expression "provincial constitution" in subsection 92(1) of the Constitution Act, 1867 and concluded that this power did not extend to all of the Manitoba Act, 1870, and particularly not to section 12 of that Act.
Lastly, in Blaikie (No 2), the Court held that the rules of practice of the courts subject to section 133 - and consequently, to section 23 of the Manitoba Act, 1870 - must be enacted and published in both languages, because of their judicial nature and their purpose. The Court said that because the judges are at liberty to address themselves to litigants in the language of their choice, when they so address themselves collectively in rules of practice, they must necessarily use both languages.
Provisions of the Charter
The Canadian Charter of Rights and Freedoms came into force in 1982. Subsection 16(1) of the Charter provides that English and French are the official languages of Canada and have equality of status and equal rights and privileges as to their use in all institutions of the Parliament and government of Canada. Subsection 19(1) provides that either English or French may be used by any person in, or any pleading in or process issuing from, any court established by Parliament. Subsections 16(2) and 19(2) provide for the same rights in New Brunswick. Section 16.1, which was adopted in 1993, further recognizes the equality of the linguistic communities of New Brunswick, and the right of those communities to distinct institutions in certain areas, as well as the role of the provincial government and legislature in their commitment to promoting the development of those communities.
Reference Re Manitoba Language Rights, 1985
The issue was the exact legal status of Manitoba statutes that were enacted in English only. As set out in Forest, this practice ran counter to the province's constitutional obligations. Although the decision does not relate directly to the administration of justice, it contains useful information for interpretation and the kernel of a theory of language rights. The Supreme Court of Canada held that the purpose of sections 133 and 23 is to ensure equal access to the legislative bodies, the laws and the courts, for francophones and anglophones alike. The Court also noted that the importance of language rights is grounded in the essential role that language plays in human existence, development and dignity.
Société des Acadiens, MacDonald and Bilodeau
MacDonald was a challenge to a municipal ticket issued in French only. The applicant cited section 133 and his right to receive process in criminal matters in his own language. The majority of the Court believed that section 133 does not confer anything more than it says: the right to use either language at the choice of the individual. Every participant in the judicial process has that right. The Supreme Court of Canada held that section 133 is the result of a political compromise and that it is not open to the courts, under the guise of interpretation, to improve upon, supplement or amend this historical constitutional compromise.
In Société des Acadiens, the applicant claimed the right to be heard by a judge who understands the language of the proceedings directly, without the assistance of an interpreter. The application was based on subsection 19(2) of the Charter, which essentially reiterates the provisions of section 133 with respect to the New Brunswick courts.
The Court chose to interpret subsection 19(2) in the same manner as section 133, since the wording of the two provisions is virtually identical. The conclusion is therefore the same: the Charter does not entitle anyone to be understood by a judge in his or her own language.
Mercure: content of section 110 of the North-West Territories Act
In addition to finding that section 110 was not part of the "Constitution of Canada", LaForest J., for the majority, characterized the content of the section. He adopted the conclusions stated in Société des Acadiens and MacDonald:
"I conclude, therefore, that the language rights accorded by s. 110 are substantially the same as those accorded under these other provisions." However, the Court decided a point that had not been addressed in the earlier cases: testimony must be received in the official language in which it is given. The Court was also of the opinion that language rights are human rights, which must be interpreted purposively.
Section 110 of the North-West Territories Act
The first version of section 110 was enacted in 1877. It provided that every person could use French or English in the courts. The later version of that section was enacted in 1886. In addition to the fact that it reiterated the free choice as to language in the courts, it allowed the Territorial Assembly to
"regulate its proceedings, and the manner of recording and publishing the same". That provision was not reiterated in the Saskatchewan Act (1905) or in the Alberta Act (1905). In R. v. Mercure, the Supreme Court of Canada held that section 110 was still in force in Saskatchewan, since it had never been repealed, and that it was in the nature of a mandatory procedural requirement that the Territorial Assembly had to follow and that the Legislative Assembly of the province was still required to follow. However, because it was not reproduced in the province's enabling statute, the Court concluded that section 110 could be unilaterally amended by the provincial legislature.
Official Languages Act of New Brunswick, 1969
The legislature of New Brunswick enacted an Official Languages Act a few months before the federal Act was adopted. Section 14 (now section 13) relates to judicial proceedings. Subsection (1) provides that in any proceeding before a court in New Brunswick,
"any person appearing or giving evidence may be heard in the official language of his choice and such choice is not to place that person at any disadvantage". Subsection (2) went a little farther than the federal Act; it provided that where requested by any party, and where the court agreed that it was practicable,
"the court may order that the proceedings be conducted totally or partially in one of the official languages". Section 23C of the Evidence Act allowed the judge to order
"in any proceeding in any court in the Province", that the proceedings be conducted and the evidence given and taken in a language, at the request of any party, and if all the parties and their counsel
"have sufficient knowledge of" that language.
In Jones, the Supreme Court of Canada confirmed the province's jurisdiction to enact those two provisions. It also held that the effect of enacting them, by operation of subsection 11(4) of the federal Act, was to make section 11 of that Act applicable in the province. In New Brunswick, in both federal and provincial cases, it is possible to testify in the language of one's choice, and in certain circumstances to receive a trial in one's own language.
Act Recognizing the Equality of the Two Official Linguistic Communities in New Brunswick
In 1981, the legislature enacted the Act Recognizing the Equality of the Two Official Linguistic Communities in New Brunswick. That Act acknowledges the unique character of the province, where the English and French linguistic communities are officially recognized for all purposes to which the authority of the provincial legislature extends. Those communities have equality of status and equal rights and privileges. The government of the province also undertakes to ensure protection of the equal status, rights and privileges of the two communities and in particular their right to distinct institutions within which cultural, educational and social activities may be carried on. The government of New Brunswick also undertakes, in its proposed laws, in the allocation of public resources and in its policies and programs, take positive actions to promote the cultural, economic, educational and social development of the official linguistic communities.
Charter of the French Language of Quebec
Quebec's Charter of the French Language, which is better known as "Bill 101", attempted to make French the language used in the courts. Section 11 provides that artificial persons must address themselves to the courts in the official language (French) unless
"all parties to the action" agree to their pleading in English. Section 12 provided that procedural documents issued by bodies discharging judicial functions or drawn up by the advocates practising before them had to be drawn up in the official language unless the natural person for whose intention they were issued expressly consented to their being drawn up in another language. Section 13 stated that judgments had to be drawn up in French or accompanied with a French version, that version being the only official one.
In Blaikie (No. 1), the Supreme Court held that these provisions contravened section 133 and were accordingly unconstitutional since the province may not unilaterally amend section 133.
The New Official Languages Act of Canada (1988)
Parliament was aware of the gaps left by its efforts in 1969, and has enacted a new Official Languages Act that limits the Act to the federal courts. Section 14 reiterates the principle in section 133: any person in any pleading or process may use either language. However, the sections that follow are clearer. Section 15 sets to the right to testify in the official language of one's choice and not be placed at a disadvantage; the federal courts may supply interpretation facilities where needed. Section 16 recognizes that the federal courts, other than the Supreme Court of Canada, have a duty to ensure that cases are heard by judges who understand the official languages without the assistance of an interpreter. Section 18 requires federal institutions to use the official language chosen by the other parties to a civil case before a federal court. Section 19 provides that pre-printed pleadings shall be in both official languages and may be filled out in only one language, provided that a translation is made available on request. Section 20 provides for publication of judgments in both official languages, subject to the exceptions set out in the earlier version. Section 11 of the former Act has been replaced by sections 104 and 105, which cease to be in force when sections 530 and 530.1 of the Criminal Code come into force in all the provinces.
In short, the 1988 OLA is innovative in that it allows for trials to be held in one language in the courts and quasi-judicial tribunals established by the Parliament of Canada, by guaranteeing the right to be heard by a judge who understands the language of the trial without an interpreter and requiring that the federal prosecutor speak the language of the parties or both official languages.
Sections 530 and 530.1 of the Criminal Code (1985 and 1990)
As a result of a statutory revision, section 462.1 became section 530. It contains no significant changes. It guarantees an accused the right to choose to be tried in his or her own official language. The provision specifies the time when that choice must be made; an accused who is not represented by counsel must be informed by the judge of the opportunity to make the choice. If the request is made within a specified time, it is automatically granted; if the time has expired, the court has the discretion to grant it in the interests of justice, and this was the issue in Beaulac.
Parliament has specified a number of obligations in section 530.1:
- the accused and his counsel have the right to use either official language for all purposes during the preliminary inquiry and trial of the accused;
- any witness may give evidence in either official language during the preliminary inquiry or trial;
- the accused has the right to have a justice presiding over the preliminary inquiry who speaks the official language that is the language of the accused;
- the court shall make interpreters available to assist the accused, his counsel or any witness during the preliminary inquiry or trial;
- the record of proceedings shall include a transcript of everything that was said in the original official language; the transcript and documentary evidence shall be available in the language in which they were tendered;
- The court shall make any trial judgment available in the official language that is the language of the accused.
It has been argued that the right to a prosecutor who speaks the language of the accused infringes the prosecutor's constitutional right to use the language of his or her choice. In Cross, the Quebec Court of Appeal found that this provision was part of the process of the principle of advancement toward linguistic equality recognized in subsection 16(3) of the Charter, and reconciled the two rights by affirming the validity of paragraph 530.1(e) of the Criminal Code. The Crown need only appoint a prosecutor who agrees to exercise his or her constitutional right under section 133 by speaking the language chosen by the accused. In Lavigne v. Quebec, however, the Quebec Superior Court decided that an applicant in the Federal Court may not compel the Attorney General of Quebec to make argument in English in a civil matter.
The question of the language of evidence has been the subject of numerous decisions. In Rodrigue, the Yukon Supreme Court held that neither section 530.1 nor any other language right requires that the investigation notes of members of the R.C.M.P. be translated. Disclosure of evidence prior to trial need not be made in both official languages. The Court of Appeal affirmed that ruling and held that the requirement of a fair trial could sometimes call for a translation. In Lavigne, the applicant, in the course of his trial, sought a translation of four affidavits. The Court held that "pleadings" under section 18 of the OLA (1988) referred only to oral argument and did not include documentary evidence. In Leblanc (C.J.R.), the Court found there to be a right to translation of a breathalyzer certificate written solely in French on the basis of the right to a fair trial. In Boudreau, the New Brunswick Court of Appeal ordered that a breathalyzer certificate in English be translated into French, when the trial was being held in French, citing both the language rights and the right to a fair trial of the accused.
Efforts by the Courts to Extend Sections 530 and 530.1 to all of Canada
Before sections 530 and 530.1 were proclaimed in force in all the provinces and territories, a number of litigants had sought declarations that the fact that they were in force in some provinces only (because of the system for gradual, province by province coming into force) was unconstitutional. The case law is inconsistent. In Ringuette, the Newfoundland Court of Appeal held that progress on section 530 resulted from legislative and not judicial efforts. In Tremblay and Re Criminal Proceedings, the courts of Saskatchewan found this to be a violation of section 15 of the Charter. In R v. Paquette, the Alberta Court of Appeal found to the contrary. Nonetheless, section 530 has been in force in all the provinces since January 1, 1990. We would note the decision in McConnell, which does not relate directly to this point but which confirms that "official language" is not a ground of discrimination under section 15 of the Charter, and that French-speaking British Columbians may not demand a civil trial in French.
Subsection 841(3) of the Criminal Code: Effect of Violation
This provision was enacted simultaneously with section 530.1. It provides that the pre-printed portions of forms set out in Part XXVII of the Criminal Code must be in printed in both official languages. The case law is inconsistent on the question of the consequences of non-compliance with that provision. Simard concluded that an information that contains a description of the charge in English is not void. In Goodine, the court held that a violation of this provision is purely one of form. According to Langlois, language rights may not be asserted to outweigh the intention of Parliament to convict guilt persons. In Noiseux, the court held that printing forms in only one language, and announcing that an English version may be obtained on request, is a sufficiently serious violation for the information to be void.
Amendments to section 13 of the New Brunswick Official Languages Act
This provision was enacted in response to the decision in Société des Acadiens. Subsection 13(1.1) provides that a person accused of an offence under an Act or a regulation of the Province, or a municipal by-law, has the right to have the proceedings conducted in the official language of his choice, and shall be advised of the right. Subsection 13(1.2) provides that the court must understand the official language without the need for translation.
Under Regulation 86-2, everyone may obtain the services of an interpreter to assist him or her in using the official language of his or her choice.
Ontario Courts of Justice Act (1986)
This Act made French and English the official languages in the courts of Ontario; however, unless otherwise provided, hearings are held in English, evidence introduced in another language is translated into English and documents are filed in English or accompanied by a certified translation.
Section 126 institutes a dual system for bilingual trials. Some rights are applicable throughout the province:
- a judge who speaks both languages;
- testimony is received and recorded in the language in which it is given, except in certain jury trials; the same is true for testimony given out of court;
- a party may obtain pleadings and documents in French with the consent of the other parties;
- reasons for decision may be written in English or French;
- the court must provide simultaneous interpretation of testimony at the request of a party, and a translation of the reasons;
- if the trial is bilingual, the appeal is heard by judges who understand both languages;
- a document filed by a party in the Provincial Court or Small Claims Court may be written in French, as may process in a criminal case; the court must provide a translation on request;
- parties who are not natural persons have the same rights as natural persons.
In certain designated regions, the following rights are also provided:
- trials may be held before a jury composed of jurors who speak both languages;
- testimony on those trials is recorded in the language in which it is given;
- a party may file documents in French without leave having to be obtained.
Saskatchewan Language Act (1988)
The 1988 Act was enacted in response to Mercure, and provides that section 110 of the North-West Territories Act no longer applies in Saskatchewan. Section 11 provides that a person may use English or French before the courts of Saskatchewan which are listed: the Court of Appeal, the Court of Queen's Bench, the Provincial Court, the Surrogate Court, the Traffic Safety Court and the Family Court. The rules of those courts have been printed and published in both official languages since January 1, 1994.
In Rottiers, the accused requested a French version of the relevant provincial statutes in a trial in which French was to be used. The Court of Appeal rejected his request. Saskatchewan had the power to repeal section 110 of the North-West Territories Act. Section 11 of the Language Act does not go so far as to require translation of the statutes.
Alberta Languages Act (1988)
As in Saskatchewan, section 110 is no longer in effect in Alberta; under section 4, the use of French is limited to oral communication in certain courts: the Court of Appeal, the Court of Queen's Bench, the Provincial Court and the Surrogate Court. In R v. Lefebvre (No. 2), the Court of Queen's Bench allowed the accused to file written documents in French, on the grounds of official bilingualism and freedom of expression. The Court of Appeal ultimately gave leave to file written documents in French with an English translation. Essentially, the Court of Appeal held that Alberta has the power to repeal section 110.
Languages Ordinances of the Three Territories (1988)
The Yukon ordinance entitled the Languages Act provides that either English or French may be used by any person in, or in any pleading in or process issuing from, the courts of Yukon.
The Northwest Territories ordinance entitled the Language Act, which also applies to Nunavut for as long as it has not legislated in relation to language, recognizes that either French or English may be used in, or in any pleading in or process issuing from, any territorial court. Section 13 requires that judgments be issued in both languages, doing so would occasion a delay that would be prejudicial. Rules are bilingual.
Prince Edward Island French Language Services Act (1999)
The relevant provisions of the Act are not yet in force. The Act provides that everyone is entitled to use both languages in the P.E.I. Provincial Court and Supreme Court. Decisions are published in both languages, provided that they relate to matters under federal law. Section 13 is new law, in that it provides that the two have a duty to ensure that any person is heard in English or French according to that person's choice and to provide simultaneous interpretation services where requested by any party.
In 1982, Canada adopted the Canadian Charter of Rights and Freedoms. In addition to protecting the traditional fundamental rights, the Charter guarantees certain language rights to Canadian citizens and New Brunswickers. In Société des Acadiens du Nouveau-Brunswick v. Association of Parents for Fairness in Education, the Supreme Court considered the interpretation of subsection 19(2) of the Charter, which recognized the right of a person to be heard by a court in the official language of his or her choice. In its decision, the majority of the Court made a distinction between the category of rights that the Charter characterizes as legal guarantees, which are protected by sections 7 to 15, and language rights, which are found in sections 16 to 20 and 23.
Reference Re Secession of Quebec
There are three recent decisions of the Supreme Court of Canada that have shed new light on the manner in which the courts must interpret the rights in question. Those decisions provide the courts with a novel approach to interpreting those rights.
In the Reference, the Supreme Court of Canada held that the Canadian Constitution is based on four fundamental and organizing unwritten principles: federalism; democracy; constitutionalism and the rule of law; and respect for minorities. Those principles
"inform and sustain the constitutional text: they are the vital unstated assumptions upon which the text is based". A little later in the decision, the Court adds that those principles
"dictate major elements of the architecture of the Constitution itself and are as such its lifeblood". They
"assist in the interpretation of the text and the delineation of spheres of jurisdiction, the scope of rights and obligations, and the role of our political institutions". Equally important,
"observance of and respect for these principles is essential to the ongoing process of constitutional development and evolution of our Constitution as a 'living tree'."
"The principles are not merely descriptive, but are also invested with a
powerful normative force, and are binding upon both courts and governments." While they are not expressly stated in the Constitution, they may, pursuant to a written provision, give rise to substantive legal obligations that place significant limits on what governments may do.
The principle of respect for minorities, according to the Court, derives from the protection of the education rights of religious minorities guaranteed by section 93 of the Constitution Act, 1867 and the provisions of the Charter relating to the protection of the language and education rights of the minorities. On this point, the Supreme Court said that the constitutional provisions protecting minority language, religion and education rights are the products of an historical compromise. However, the Court stressed out that even though those provisions were the products of negotiation and political compromise, that does not render them unprincipled. The Court also pointed out that the protection of minorities is certainly not a principle that was invented when the Charter was adopted in 1982, and is part of our history.
In Lalonde et al. v. Health Services Restructuring Commission, and in Charlebois v. Mowat and the City of Moncton, the Ontario and New Brunswick Courts of Appeal, respectively, considered the scope of the principles underlying the decision in the Reference. The New Brunswick Court of Appeal concluded that, based on the opinion of the Supreme Court in the Reference, it could be said that respect for minority rights is
"an unwritten principle underlying the Canadian Constitution, this principle may be used to clarify the written text of the Constitution, and it encourages a constant process of constitutional evolution". However, relying on Eurig Estate (Re), the Court reiterated that in Canadian constitutional law the supremacy of the written provisions of the Constitution is the basis for the legitimacy of the power of review exercised by the courts. In Lalonde, the Ontario Court of Appeal examined the opinion of the Supreme Court in the Reference in great detail. The Court found that the organizing principle of federalism has an important bearing on the situation of cultural and linguistic minorities. The organizing principle of "democracy" means, in relation to minorities, more than majority rule. "Constitutionalism and the rule of law" are the cornerstones of the Canadian Constitution and
"reflect our country's commitment to an orderly and civil society in which all are bound by the enduring rules, principles, and values of our Constitution as the supreme source of law and authority". The related principle rests on the proposition that the Constitution is the supreme source of law and that all government action must comply with its requirements. The Ontario Court of Appeal pointed out that the principle of
"respect for and protection of minorities" is a fundamental structural feature of the Canadian Constitution and that it
"both explains and transcends the minority rights that are specifically guaranteed in the constitutional text".
Thus the courts may rely on the unwritten principles in order to fill any gaps left by the written text by
"relying upon [...] the best or most appropriate set of constitutional norms that should be added to the existing text".
Beaulac is another important decision on the interpretation of language rights. In ordering that a new trial be held for Jean Victor Beaulac, a francophone resident of British Columbia charged with murder, because he had not been tried in his first language, the Supreme Court reviewed the principles that should guide the interpretation of language rights in Canada.
In other words, the objective of protecting language rights is no different from the objective of protecting other fundamental rights, and language rights should not be given any lesser protection by the courts than those other rights. The State has a duty to take positive steps to implement the language guarantees that it has recognized and to recognize the distinct role of those rights, which is
"to protect official language minorities in this country and to insure the equality of status of French and English". Bastarache J. pointed out that in language law, the principle of equality is not a narrow one, and must be given true meaning. By instituting institutional bilingualism, the State has guaranteed equal access to services of equal quality for members of both official language communities. Subsection 16(1)
"affirms the substantive equality of those constitutional language rights that are in existence at a given time". Consequently, language rights require government action for their implementation and therefore create obligations for the State. The exercise of language rights is not in the nature of an exception, and must not be considered as a response to a request for an accommodation. It calls for a concrete commitment by the administrative institutions of the State. On the argument that language rights derive from a political compromise, Bastarache J. noted that political compromise also led to the adoption of sections 7 and 15 of the Charter. However, there is nothing in the constitutional history of Canada to justify a restrictive interpretation of the rights that resulted from that compromise. The existence of a political compromise is without consequence with regard to the scope of language rights. The rule that must apply is that language rights must in all cases be interpreted purposively, in a manner consistent with the preservation and development of official language communities in Canada. Bastarache J. stated unequivocally
that to the extent that Société des Acadiens stands for a restrictive interpretation of language rights, it is to be rejected. Language rights must be given a large and liberal interpretation by the courts.
In Arsenault-Cameron, the Court examined the right to instruction in the minority language, guaranteed by section 23 of the Charter. Speaking this time for a unanimous court, Major and Bastarache JJ. reiterated the conclusion that the Court had stated in Beaulac: the fact that language rights result from a political compromise is not unique to language rights and does not affect their scope. Accordingly, they clearly affirmed the principle stated in Beaulac, that language rights must in all cases be interpreted purposively, in a manner consistent with the preservation and development of official language communities in Canada. The purpose of language rights is to redress past injustices suffered by the minority community. The Supreme Court also noted that government authorities must have regard to the requirements of section 23 of the Charter in exercising their discretion. In other words, with respect to language rights, they must give proper weight to the promotion and preservation of minority language culture in making their decisions. It is also essential that they give full regard to the remedial purpose of language rights. By ignoring these considerations, the government authority in question increased the probability that his decision would fail to satisfy constitutional review. Government authorities must exercise their discretion in the public interest. In order to determine what is in the public interest, they must have regard to constitutional guarantees and unwritten constitutional principles.
In Arsenault-Cameron, the Court pointed out that substantive equality requires that official language minorities be treated differently, if necessary, according to their particular circumstances and needs.
Part IV: Beaulac and the Right to a Trial in French in Criminal Cases: Section 530 of the Criminal Code
The accused had applied for a trial before a judge and jury who spoke both official languages of Canada. The judge denied the subsection 530(4) application. The trial proceeded in English and the accused was convicted. The British Columbia Court of Appeal dismissed the appeal. The accused appealed to the Supreme Court solely on the question of the violation of his language rights. This was the first time that the Supreme Court had been asked to interpret the language rights provided in section 530.
The purpose of section 530 is to provide the absolute right of the accused to a trial in the official language of his or her choice, providing the application timely. The courts called upon to deal with criminal matters are therefore required to be institutionally bilingual in order to provide for the equal use of the two official languages. The right granted by this section is a substantive right and not a procedural right that can be interfered with.
Bastarache J. found that there are two expressions in section 530 that present an interpretation problem: "language of the accused" and
"best interests of justice". On the question of the interpretation of the first expression, he thought that it was sufficient to look at the purpose of section 530, which is to provide equal access to the courts to accused persons speaking one of the official languages of Canada in order to assist official language minorities in preserving their cultural identity. Language is very personal in nature; it is an important part of cultural identity. An accused must therefore be afforded the right to make a choice between the two official languages based on his or her subjective ties with the language itself. He added that Canadians are free to assert which official language is their own language. For the purposes of subsections 530(1) and (4), an accused's own language is either official language to which that person has a sufficient connection.
That language will not necessarily be the dominant language. If the accused has sufficient knowledge of an official language to instruct counsel, he or she will be able to assert that that language is his or her language. If the Crown wishes to challenge that choice, it will have the onus of showing that the assertion is unfounded, but the Court, in deciding the issue, will only satisfy itself that the accused is able to instruct counsel and follow the proceedings in the chosen language.
Once the accused's language has been determined, the Court will have to decide whether "the best interests" of justice will be served by granting the application. Here again, Bastarache J. referred to the purpose of section 530 in deciding the proper definition of that expression. He noted that the rule is automatic access by the accused to a trial in his or her official language when an application is made in a timely manner, and discretionary access otherwise. In the latter case, the judge will have to consider, foremost, the reasons for the delay. The first question that comes to mind is when the accused was made aware of his or her right. It is important to point out in this respect that the accused must be advised of his or her right by the justice or the judge of the provincial court, under subsection 530(3), only if he or she is not represented by counsel. Bastarache J. observed that is of questionable value because it is unrealistic to assume that counsel is aware of the right and will in fact advise his or her client of that right in all circumstances, absent a duty to do so. Once the reason for the delay has been examined, the trial judge must consider a number of factors that relate to the conduct of the trial, among them whether the accused is represented by counsel, the language in which the evidence is available, the language of witnesses, whether a jury has been empanelled, whether witnesses have already testified, whether there is a co-accused, the need for the accused or the Crown to change counsel and the language ability of the presiding judge. Thus the only relevant factors to be considered are the additional difficulties caused by an untimely application. The accused's right to a trial in the official language of his or her choice is not an "exceptional favour" given to the accused by the State; "it is the norm". Denial of such an application is the exception, and must be justified. Denial is only possible in the case of an untimely application, and the burden of justifying denial rests on the Crown.
In conclusion, administrative inconvenience is not a relevant factor for denying an accused his or her right. As well, the accused's language proficiency in the other official language is of no relevance to the exercise of this right. Any denial of the subsection 530(4) right is exceptional and must be justified by the Crown. It is important that accused persons be informed of their right to a trial in the official language of their choice.
Under the Canadian Constitution, each province is responsible for the administration of justice within the province, and this includes the constitution, maintenance and organization of courts of civil and criminal jurisdiction, and procedure in civil matters in those courts. The administration of federal law by the courts constituted by the provinces raises the question of whether language rights, which are constitutionally protected at the federal level, apply to those proceedings: besides the Criminal Code, the provincial courts must also apply a large number of federal statutes, such as the Divorce Act and the Bankruptcy Act, which govern areas under federal jurisdiction. It must be recalled that the constitutionally protected language rights do not apply to six of the provinces. If a federal court is not constituted, or an existing federal court designated, to hear cases relating to the application of a federal statute, the courts constituted by the provinces will have jurisdiction. The right to use either or both of the official languages in judicial proceedings will then depend on the measures in that regard that are adopted by the province.
The provinces may legislate in relation to the languages in which proceedings may be conducted in the courts established by the provinces. In their statutes governing the judicature, they may make provision for using French in the courts of the province. In fact, to varying degrees, some provinces and territories have done this. However, in proceedings in respect of matters that are within the exclusive jurisdiction of Parliament but administered by the provincial courts, such as divorce, the federal government may make rules relating to the use of the official languages. Because divorce and bankruptcy are matters within the exclusive jurisdiction of Parliament, it has the legislative authority to assign its own courts to administer those statutes. At present, however, minority communities are denied their constitutional right to go before a federal court in the official language of their choice, as provided in subsection 19(1) of the Charter and sections 15, 16 and 17 of the Official Languages Act of Canada.
The period from 1867 to 1982 was characterized by a low rate of legislative activity and a minimal constitutional framework, one that was designed in the 19th century to reflect the needs and circumstances of the time. The reports prepared by the Commission on Bilingualism and Biculturalism, and the increasingly solid affirmation of the French fact in Quebec, have been the catalysts for efforts to remodel the Canadian legal landscape in the area of language rights.
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