VI. Language Rights Related to Provincial Jurisdiction
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1. Policing Services and Communications in New Brunswick
New Brunswick is the only province where English and French are constitutionally declared (under the Charter) to be official languages and to have “equality of status and equal rights and privileges as to their use in all institutions of the legislature and government” of the province.91 The Charter also 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 any institution of the legislature or government of New Brunswick in English or French.”92
In addition, the province has constitutionally entrenched the principle that “the English linguistic community and the French linguistic community in New Brunswick have equality of status and equal rights and privileges, including the right to distinct educational institutions and such distinct cultural institutions as are necessary for the preservation and promotion of those communities.”
R. v. Cormier
In the case of R. v. Cormier,93 a provincial court judge considered whether any of these constitutional provisions had been breached by a police officer who did not actively inquire as to what official language an individual being questioned wished to use. The facts of the case pertain to a routine stop under the Highway Traffic Act of New Brunswick, during which it was discovered that the licence plate on Mr. Cormier’s car had expired. The ensuing conversation between the police officer and Mr. Cormier took place entirely in English, during which time no indication was given that Mr. Cormier wished to communicate in French, nor that he had any difficulty in understanding the police officer who had stopped him. Indeed, there seemed to be no dispute before the court about Mr. Cormier’s ability to speak and understand English.
In concluding that the police officer had not breached any constitutionally protected language rights, the provincial court judge placed considerable emphasis upon the failure of Mr. Cormier to indicate in any way his preferred official language. He cited case law from the New Brunswick Court of Appeal confirming that a police officer has the duty and obligation to accord members of the public a reasonable and significant choice regarding the official language of communication. However, he emphasized that the Court of Appeal had also established that it was neither relevant nor necessary (in dealing with cases such as this one) to hold police officers to a strict duty actively to offer a choice of language. Whether or not a reasonable and significant choice of language had been accorded would be deduced from all the circumstances surrounding a specific event, or so it would seem.
The Provincial Court also emphasized the fact that Mr. Cormier understood without any difficulty his conversation with the police officer who issued the ticket. The latter also testified in court that, had he detected the least difficulty with respect to comprehension, he would have immediately requested the assistance of a police officer who spoke French. Thus, in the absence of any evidence that Mr. Cormier was unable to understand why he had been stopped and what infraction he was alleged to have committed, and in the absence of any evidence regarding Mr. Cormier’s choice of language (i.e., his desire to communicate and to be served in French), the Court rejected arguments that his constitutional language rights had been breached.
While the decision of the judge in this case can be said to turn upon its specific circumstances, some elements of his reasoning may be open to question. For example, considerable weight was given to the proposition (now rejected by the Supreme Court in Beaulac) that language rights should be interpreted with restraint because they are based inherently upon political compromise. It is now more correct to state that language rights, like other fundamental rights protected by the Charter, should be interpreted purposively and with a view to achieving their remedial objectives. There is no reason in principle to refuse a liberal and contextual interpretation to language rights. Thus they should be interpreted in a manner consistent with the preservation and development of official language communities.
Second, the issue of comprehension brings to mind the distinction made by the Supreme Court in Beaulac between the right to a fair and equitable trial, on the one hand, and language rights on the other. In that context, it was underscored that respect for language rights should not be limited by the ability of an individual to speak and understand both English and French. If the purpose of language rights is to achieve substantive equality of access for minority official language speakers to a range of public institutions, it would be counterproductive to make such access contingent upon an individual’s inability to understand the majority language. For this reason, the scope of the right to communicate with, and receive services from, government institutions in New Brunswick should be determined by factors other than the ability of an individual to understand the majority official language of the province.
