Section 20 – Right for the public to communicate with and to receive services from federal institutions and New Brunswick institutions

Provision

Communications by public with federal institutions

20. (1) Any member of the public in Canada has the right to communicate with, and to receive available services from, any head or central office of an institution of the Parliament of Canada in English or French, and has the same right with respect to any other office of any such institution where

  1. there is a significant demand for communications with and services from that office in such language; or
  2. due to the nature of the office, it is reasonable that communications with and services from that office be available in both English and French.

Communications by public with New Brunswick institutions

(2) Any member of the public in New Brunswick has the right to communicate with, and to receive available services from, any office of an institution of the legislature or government of New Brunswick in English or French.

Similar provisions legislative advancement

Similar provisions are found in Part IV of the Official Languages Act of 1988. This Part, entitled “Communications with and services to the public”, sets out the duties of federal institutions in order to give full effect to the right of the public prescribed by section 20(1) of the Charter, and in certain circumstances, to complete and extend the scope of such right. Sections 27 to 34 and 36 to 41 of the 2002 Official Languages Act of New Brunswick also provide the public with rights to services and communications in both official languages.

Purpose

The purpose of section 20(1) of the Charter is to provide the public in Canada with the right to use English or French in communications with the head or central office of federal institutions or to receive services from them. The same rights apply to offices of federal institutions where there is a significant demand for communications with and services from that office in the minority language, or where it is reasonable that such services and communications be available due to the nature of the office.

Section 20(2) of the Charter provides that any member of the public in New Brunswick has the right to communicate with, and to receive available services from, any office of an institution of the legislature or government of New Brunswick in English or French, and, unlike the services provided by federal institutions under section 20(1) of the Charter, this right does not depend on the demand in the minority language or the nature of the office in question. This is complete institutional and territorial bilingualism, as members of the public have the right to use the language of their choice at all times when requesting a service from or communicating with the provincial government (SAANB SCC 2008 at paragraph 1).

Section 20, like other constitutional provisions that guarantee language rights, is not subject to the notwithstanding clause entrenched in section 33 of the Charter. This means that neither Parliament nor the legislature of New Brunswick can exclude itself from their application (Gaudet 2010 at paragraph 31).

Analysis

Scope of the Right

“Any member of the public in Canada has...” / “Any member of the public in New Brunswick has …”

Section 20(1) of the Charter delineates the geographic scope of the right set out therein: the provision states that the right is granted to members of the public in Canada. Accordingly, members of the public located elsewhere (without distinguishing nationality) are, it seems, not covered by these rights.

While section 21 of Part IV of the federal Official Languages Act reiterates the geographical limit in section 20(1) of the Charter, sections 22, 23, 24 and 25 of the federal Official Languages Act complete the constitutional provisions on this point and expand them by conferring expressly an extra-territorial dimension on the public’s right to communicate with and receive services from federal institutions in either official language. The other provisions of part IV of the federal Official Languages Act remain silent on the territorial dimension of the rights they provide.

Similarly, section 20(2) specifies the scope of the right created in the province of New Brunswick: “Any member of the public in New Brunswick has .../ Le public a, au Nouveau‑Brunswick .... However, this territorial limitation does not appear in sections 27 and 28 of the Official Languages Act of New Brunswick.

“Institution of the Parliament or government of Canada” / “Institution of the legislature or government of New Brunswick”

Section 20(1) of the Charter applies to an “institution of the Parliament or government of Canada”. The same wording is used at section 16(1) of the Charter.

Section 20(2) of the Charter applies to an “Institution of the legislature or government of New Brunswick.” The same wording is used at section 16(2) of the Charter.

Specific reference to the institutions of New Brunswick in section 16(2) of the Charter confirms that provincial institutions are not an institution of Parliament or government of Canada within the meaning of section 16(1). Provincial courts are not institutions under section 16(1) (MacKenzie at paragraphs 46 and 48).

In Société des Acadiens, the Supreme Court of Canada stated that the expression “institution of the Parliament or government” found at section 16 of the Charter includes judicial bodies and courts (Société des Acadiens, at paragraph 21).

The Royal Canadian Mounted Police remains a federal institution subject to section 20(1) of the Charter while providing services on behalf of a province (Doucet 2003 at paragraph 32; Evenson at paragraph 31; SAANB CSC 2008 at paragraph 14). However, since each RCMP member is authorized by the New Brunswick legislature to administer justice in the province, they perform the role of an “institution of the legislature or government” of New Brunswick and must comply with section 20(2) of the Charter (SAANB SCC 2008 at paragraphs 16 and 19).

The same holds true for police forces governed directly by the province or municipalities of New Brunswick (Gautreau at paragraphs 47-49; Bastarache at paragraph 20; Haché at paragraphs 15 and 57; SAANB FC2005 at paragraph 38; Moncton at paragraphs 104-105; Boucher at paragraphs 3-13).

Rights holders

Section 20 of the Charter guarantees the right of the public in Canada and New Brunswick. The right applies to both individuals and corporations (Brewer at paragraph 26).

Nature of the right

Section 20 of the Charter identifies two rights: (1) the right to communicate in French or English with certain institutions, and (2) the right to receive services from these institutions in English or French (Gaudet 2010, at paragraph 23). In Norton, the Federal Court held that the concept of public “services”, which is also guaranteed by section 20 of the Charter, is broader than the term “communications” (Norton at paragraph 76).

The Supreme Court of Canada states that the right to communicate in either official language as prescribed by section 20 of the Charter also implies the right to be heard or understood in either language, which is not the case for the rights provided by section 133 of the Constitution Act 1867 and section 19(2) of the Charter (Société des Acadiens at paragraph 54, see also Norton at paragraph 76). In Knopf, the Federal Court of Appeal concludes that the term “to communicate” presupposes interactions, bilateral actions between the parties (the term “to use” at section 133 of the Constitution Act 1867 and at section 17 of the Charter do not encompass such interaction) (Knopf at paragraphs 38-40).

Section 20 does not allow a service to be demanded that the government does not provide, whether in English or French (Tucker at p. 297).

Section 20(1) and Part IV of the federal Official Languages Act include the constitutional and quasi-constitutional obligation to make services “of equal quality in both official languages” available to the public. (Desrochers SCC 2009 at paragraph 3) Even though section 20(1) of the Charter and Part IV of the federal Official Languages Act involve a guarantee in relation to the services provided, it is not entirely accurate to say that linguistic equality in the provision of services cannot include access to services with distinct content. Depending on the nature of the service in question, it is possible that substantive equality will not result from the development and implementation of identical services for each language community. The content of the principle of linguistic equality in government services is not necessarily uniform. It must be defined in light of the nature and purpose of the service in question. What matters is that the services provided be of equal quality in both languages. The analysis is necessarily comparative (Desrochers SCC 2009 at paragraphs 51 and 53).

Where a significant demand is established under section 20(1) of the Charter, it is clear that the government has a duty to act (Doucet 2004 at paragraph 25).

In the context of communication by an Royal Canadian Mounted Police officer during a roadside check stop, the Federal Court held that the fact that a unilingual English-speaking officer made arrangements for a member of the public to communicate via radio to a member who is capable of speaking French is by no means sufficient for the Royal Canadian Mounted Police to fulfill its obligations under the Charter and the federal Official Languages Act so that any member of the public can communicate with a federal institution in the official language of their choice. Motorists should not have to go out of their way or use a telephone or radio when they want to address a member of the RCMP in French (Doucet 2004 at paragraphs 43 and 79).

In Tailleur, the Federal Court concludes that the fact that members of one official language community might wait more than members of the other official language community in order to obtain a service from a federal institution through a telephone line does not comply with the constitutional obligation to make services of equal quality in both official languages available to the public (Tailleur, at paragraph 106).

See also, in the context of Via Rail employees communicating with travellers, Norton that stated that simultaneous or consecutive translation is impractical in the case of oral communication, and that it diminishes the quality of service. Therefore, the opportunity to be served in the official language of one’s choice in the cases contemplated by the law can only be assured by the presence of bilingual personnel (Norton, at paragraph 76).

However, in Thompson, the Federal Court interpreted the scope of section 20 in the context of the disclosure to an individual of already existing notes (inserted by the immigration officer in the individual’s file). The Court found that it is implied in section 20 that where applicable, government institutions must provide communications within a “reasonable” time of the request for the provision of the communication in a particular official language or, put another way, within a time that results in no prejudice to the individual seeking the communication in a specific language (Thompson at paragraph 8; in that case, the notes had been translated from French to English, to respect the individual’s choice of language). See also Musa at paragraphs 13‑15).

Section 20 of the Charter does not inhibit federal institutions to offer services in languages other than English or French if the members of the public involved do not wish to exercise their right under section 20(1) of the Charter, and, indeed, wish to conduct business in any other language in which the institution’s officials are capable of reliably communicating without an interpreter (Abbasi at paragraph 16, concerning an interview held in Urdu). In addition, section 83(2) of the federal Official Languages Act provides that nothing in the Act shall be interpreted in a manner that is inconsistent with the maintenance and enhancement of languages other than English or French, nor with the reclamation, revitalization and strengthening of Indigenous languages.

The concept of active offer

Section 28 of the federal Official Languages Act and section 28.1 of the Official Languages Act of New Brunswick state that institutions must ensure that there is an active offer in both official languages, when applicable. In addition, section 31(1) of the Official Languages Act of New Brunswick states that “members of the public have the right, when communicating with a peace officer, to receive service in the official language of their choice and must be informed of that right.” Section 31(2) of the Official Languages Act of New Brunswick is to the effect that if a peace officer is unable to provide service in the language chosen by the member of the public, the peace officer shall take whatever measures are necessary, within a reasonable time, to ensure compliance with the choice made by the member of the public.

The question of whether active offer under section 28 of the federal Official Languages Act is the expression of a constitutional obligation arising out of section 20(1) (for the federal government) of the Charter has not yet been completely resolved. In Doucet 2003, the Supreme Court of Nova-Scotia concluded that section 20(1) of the Charter does not require that Royal Canadian Mounted Police officers patrolling in the province actively inquire whether defendants wish to be served in one or the other official language (Doucet 2003 at paragraph 36).

That question, however, has been discussed by the New Brunswick courts in relation to section 20(2) of the Charter and section 31 of the Official Languages Act of New Brunswick. At first, the decisions were quite a contrast (see in particular: Gaudet 2009 at paragraph 23; Robichaud at paragraphs 19 and 25‑32; Robinson at paragraphs 21‑22; Haché at paragraphs 46 and 58; McGraw 2007 at paragraph 22; Gaudet 2010 at paragraph 41; Losier 2010 at paragraph 16; Losier 2011 at paragraphs 8-9; Furlotte at paragraph 28; Robichaud 2011 at paragraphs 22, 31, 39‑41).

The question has now been resolved at the provincial level by the New Brunswick Court of Appeal in 2011 in the Losier decision. In that decision, the Court found that the police officer who stopped the respondent while conducting a spot check program was under a duty to comply with the obligations under section 20(2) of the Charter (Losier CA 2011 at paragraph 9). The Court adopted the findings of the Provincial Court (Losier 2010) and the Court of Queen’s Bench (Losier 2011), which had both determined that the absence of an active offer of service in both official languages on the part of the peace officer and the violation of these language rights amounted not only to a violation of section 31(1) of the Official Languages Act of New Brunswick but also to a violation of section 20(2) of the Charter, which opened the way to remedial action under section 24(2) of the Charter (Losier CA 2011 at paragraph 8, Losier 2011 at paragraphs 21, 28, 29). The Court of Appeal also validated the lower courts’ decision to exclude the evidence gathered following the Charter violation, which led to the acquittal of Mr. Losier (Losier CA 2011 at paragraph 12).

In subsequent decisions, the Court of Appeal’s conclusions on active offer were applied, but, contrary to Losier, the exclusion of evidence was refused in the circumstances (see Savoie, at paragraph 71; Landry at paragraph 38; Thériault at paragraph 36; Robichaud 2012 at paragraph 29; Robinson 2014 at paragraphs 57, 67; Soh at paragraph 81; Lavoie at paragraph 39; Gautreau at paragraph 38).

An active offer is a greeting that informs the member of the public that they may communicate in either French or English. Its purpose is to ensure that an individual feels comfortable requesting a service. It is a sign of respect. An active offer can take the form of a sign, a personal greeting or a message (FFT at paragraph 139).

In the Thériault decision, the New Brunswick Court of Queen’s Bench affirmed the decision of the lower court, which had determined that a peace officer who stops a member of the public and says “Hello-Bonjour” without saying anything further is not complying with the active offer duty in section 31(1) of the Official Languages Act of New Brunswick or with section 20(2) of the Charter (Thériault at paragraph 13; see also McGraw 2012 at paragraph 28). The words “service en français / service in English” implicitly offer the choice between service in French and in English. In the Boucher case, the New Brunswick Court of Queen’s Bench attached importance to the fact that the accused’s choice of language was respected at all times, even if the active offer could have been clearer (Boucher at paragraphs 6, 7 and 14).

The concepts of significant demand and nature of the office at subsection 20(1) of the Charter

The concepts of significant demand and nature of the office found at section 20(1) of the Charter are defined and implemented by part IV of the federal Official Languages Act and the Official Languages (Communications with and Services to the Public) Regulations, SOR/92‑48 (the Regulations).

In Norton, the Federal Court stated that the Regulations provided greater certainty and uniformity in the application of the concepts found at section 20(1) of the Charter and Part IV of the federal Official Languages Act, but they are not exhaustive and should not be rigidly interpreted and applied. The Federal Court added that the Regulations cannot supersede or restrain the federal Official Languages Act or the Charter. They must always be interpreted and applied in a manner consistent with the general objectives of the preamble of the federal Official Languages Act and a recognition of the fundamental values of the Charter and Canadian policy in the matter of bilingualism (Norton at paragraph 98, see also Doucet 2004 at paragraph 49).

Limits to the government’s choice of service delivery model

The power of the government to authorize the authorities of another jurisdiction to deliver services for which it is responsible appears to be subject to certain limits.

For example, the Federal Court examined the case of communications with the public and the delivery of extrajudicial services in relation to the administration of prosecutions for federal contraventions. These services had been previously provided by the Department of Justice Canada in accordance with section 20(1) of the Charter and Part IV of the federal Official Languages Act. The Court stated that the definition of a new legislative framework providing for the application of provincial law must comply with the applicable language rights. More specifically, it determined that the successive and cumulative application of the Contravention Act of Canada, the French Language Services Act of Ontario and the agreements between the Attorney General of a province and municipalities does not make section 20 of the Charter or Part IV of the federal Official Languages Act inoperative. Those provisions must continue to apply and, in the event of conflict with the provincial statute, precedence must be given to the federal Official Languages Act and section 20(1) of the Charter (Commissioner of Official Languages at paragraphs 148-149).

A government may not adopt policies that would, as a result of agreements entered into, hinder the protection of guaranteed rights (SAANB SCC 2008 at paragraph 17).

Services provided by another person or organization on behalf of institutions

Section 25 of the federal Official Languages Act provides for cases in which communications and services provided by another person or organization on behalf of a federal institution must be made available in both official languages. This section states that where the federal institution responsible for the communications and services would be required to provide them in either official language if it provided them directly, that institution must ensure that the other person or organization “acting on its behalf” provides them under the same conditions. Since the amendments made to the federal Official Languages Act, which came into force on June 20, 2023, section 25 now consists of three paragraphs: section 25(1) reiterates former section 25, section 25(2) provides that “[f]or the purpose of subsection (1), the other person or organization is presumed to provide or make available services on behalf of the federal institution if (a) the federal institution exercises sufficient control over the other person or organization; or (b) the other person or organization implements a program or legislative regime for which the federal institution is responsible.” Section 25(3) provides that “[f]or greater certainty, a mere financial contribution by the Government of Canada to another person or organization is not sufficient to trigger the application of subsection (1).” A similar provision is found at section 30 of the Official Languages Act of New Brunswick.

In SAANB CSC2005, the Supreme Court of Canada cited with approbation the federal Court decision in Commissioner of Official Languages, to the effect that section 25 of the federal Official Languages Act confirms the constitutional principle that a government may not divest itself of the constitutional obligations imposed on it by the Charter by delegating certain of its responsibilities (Commissioner of Official Languages at paragraph 116, SAANB SCC 2008 at paragraph 17).

Also, a federal institution cannot justify non-compliance with section 20(1) by relying on the goodwill of a manufacturer or other government institution responsible for purchasing or supplying a product in federal buildings (Senate at paragraph 42).

Distinction between s. 19 and s. 20 of the Charter

Disclosure of evidence and summonses to appear in court proceedings are not covered by section 20(1) of the Charter or Part IV of the Official Languages Act and the Regulations because the very structure of sections 16 to 20 of the Charter shows that each of these sections governs a separate and distinct area of parliamentary, governmental and judicial activities. Everything suggests that the framers of the Charter were conscious of the distinction, on one hand, between judicial language rights (section 19 of the Charter) and the right to a fair trial (section 11(d) of the Charter), and, on the other hand, between judicial language rights (section 19 of the Charter), and communications with government offices under section 20 of the Charter. (Charlebois SCC 2005 at paragraph 54, Bastarache J. dissenting on another point, see also Société des Acadiens at paragraphs 52, 53).

Section 20(1) of the Charter and Part IV of the federal Official Languages Act and its regulations do not require that the disclosure of evidence within a criminal trial be done in the official language of the accused. However, the oral and written communications of the Office of the Department of Justice outside judicial proceedings must take place in the official language of choice of the accused or in the accused’s counsel official language of choice (Rodrigue at paragraph 28).

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