II. Institutional Support to Minority Communities (cont.)
Page 5 of 26
2.2 Bilingual Municipalities in New Brunswick
As reviewed in the previous report on language rights, the principle of equality of English and French in all governmental institutions in New Brunswick (subsection 16(2) of the Canadian Charter of Rights and Freedoms)20 raises important substantive issues regarding the operation of municipalities in the province. Chief among these is the scope of positive obligations that the principle imposes on New Brunswick to take all measures necessary to implement and achieve real linguistic equality. The manner in which local governmental institutions operate quite clearly has an important impact on minority official language communities. This is reflected in the case of Charlebois v. City of Moncton which involves a building standards by-law adopted by the city of Moncton in English only, by virtue of which a unilingual English order was issued against a Francophone resident. The last report examined the reasons given at the trial court level to uphold the validity of the by-law, as well as arguments put forward by Charlebois and various intervenors to show that the unilingual practices of the city of Moncton violated constitutional guarantees.21 The Court of Appeal of New Brunswick has now overturned the trial level decision and declared the unilingual by-law to be unconstitutional.22
The Court of Appeal noted at the beginning of its judgement that New Brunswick is the only Canadian province to have declared itself to be officially bilingual. The unique bilingual status of New Brunswick was elaborated over a number of years by means of provincial law and ultimately entrenched in various constitutional provisions:
" Indeed, the recent history of the last thirty years shows that successive New Brunswick governments have, on four separate occasions during that period, enacted language rights legislation or have entrenched language rights in the Canadian Constitution which collectively provide the province with a constitutional language regime quite peculiar to New Brunswick and unique in the country. Obviously, these legislative and constitutional provisions impose obligations on the province which are also peculiar to New Brunswick."23
Among the constitutional provisions of particular importance are found the declaration that English and French are the official languages of New Brunswick, the principle that the two languages have equality of status and equal rights and privileges in all provincial government institutions, the official recognition of the English and French linguistic communities in the province as well as the affirmation of their equality of status, rights and privileges.24
Whether the terms of the Constitution require the city of Moncton to adopt and issue its by-laws in both official languages also engages ss. 18(2) of the Canadian Charter of Rights and Freedoms, which provides that "[t]he statutes, records and journals of the legislature of New Brunswick shall be printed and published in English and French and both language versions are equally authoritative." The wording of ss. 18(2) is similar to that found in section 133 of the Constitution Act, 1867, requiring both English and French to be used in the records and journals of Parliament and the legislature of Quebec. It was this similarity that had convinced the court of first instance in Charlebois to apply past case law of the Supreme Court of Canada excluding municipal by-laws (in Quebec) from the bilingual requirements of section 133.25 However, the Court of Appeal of New Brunswick pointed out that the interpretation given section 133 by the Supreme Court had been based upon historical circumstances prevailing in 1867, circumstances that tended to reveal the intention of the drafters of section 133 to exclude municipalities in Quebec from its reach. By contrast, the historical circumstances surrounding the adoption of section 18 of the Charter of Rights and Freedoms were entirely different. At the time the Charter was adopted in 1982, New Brunswick had passed through significant political and legislative changes beginning with the adoption of the provincial Official Languages Act in 1969, and leading to the passage in 1981 of a provincial statute recognizing the equality of New Brunswick's two official language communities.26 It is this evolution and events surrounding it that provide the historical circumstances relevant to a proper understanding of the scope of ss. 18(2) of the Charter.
Further guidance in interpreting ss. 18(2) was also found in rules of interpretation that apply to Charter litigation generally. As enunciated by the Supreme Court of Canada, Charter rights and freedoms are best interpreted by considering their underlying purposes. Such purposes should be determined by reference to the nature and broader purposes of the Charter as a whole, the meaning and purpose of other textually related rights and freedoms, as well as the actual wording used and the historical origins of the protected right or freedom.27 The Court of Appeal also referred to and applied rules of interpretation specific to language rights developed by the Supreme Court in R. v. Beaulac. These include the need to interpret language rights in such a way as to encourage the flourishing and preservation of minority official language communities. In addition, language rights should be construed remedially so as to correct past injustices that have gone unredressed.
The Court of Appeal also referred to the unwritten constitutional principle of the protection of minorities, which can be used as an aid to interpretation. It stressed that this unwritten principle can be important for the purposes of interpreting an existing constitutional text. However, the Court cautioned against any use of the principle to establish a free-standing right unrelated to a specific provision in the Constitution:
"the Supreme Court expressly acknowledged that these underlying constitutional principles may be used to fill gaps in the express terms of the constitutional text.[...] As I understand the effect of the statements made by the Supreme Court concerning the use of these principles, I think that the argument that this unwritten and underlying principle can also be used independently of any constitutional text, as a basis of an application for judicial review to strike down government action is not very convincing. I believe that the "powerful normative force" referred to by the Supreme Court concerns the interpretation of constitutional texts and not the creation of rights outside of the constitutional texts."28
With these interpretive principles in mind, the Court of Appeal returned to the correlation of ss. 18(2) of the Charter to other Charter rights to which it was textually related. It placed particular emphasis upon the principle of equality found in ss. 16(2), and upon the principle in ss. 16.1(1) that the English and French linguistic communities of New Brunswick enjoy equality of status and equal rights and privileges. While the Court of Appeal acknowledged that the Supreme Court in past decisions had recommended that caution be exercised when interpreting official language guarantees and that the implementation of the principle of equality found in section 16 of the Charter is best achieved through the legislative process,29 it also underscored the liberal and purposive rules of interpretation for language rights developed by the Supreme Court in Beaulac. The latter decision specifically rejected the notion that reference to the legislative process in ss. 16(3) should limit the legal effect of the principle of official language equality.30 In short, the principle of equality has substantive effects that cannot be ignored: "The principle of equality entrenched in subsection 16(2) must be interpreted according to its true meaning, i.e., substantive equality is the applicable norm. Substantive equality means that language rights that are institutionally based require government action for their implementation and therefore create obligations for the government."31
Turning to the official recognition and equality of New Brunswick's two linguistic communities, the Court of Appeal declared: "To the same extent as subsection 16(2), the principle of the equality of the English linguistic community and the French linguistic community in New Brunswick entrenched in section 16.1 of the Charter is a telling indication of the purpose of language guarantees and a source of guidance in the interpretation of other Charter provisions, including subsection 18(2)."32 Moreover, the constitutional entrenchment of the equality of English and French linguistic communities and the role explicitly given to the government of New Brunswick to protect and promote that equal status33 are unique and give to New Brunswick a distinctive place among Canadian provinces.
As to the meaning to be given the principle of equality of status of the two linguistic communities, the Court of Appeal looked to the purposes that lay behind it. It found that section 16.1 was meant to preserve both official languages and to favour the development and flourishing of the English and French linguistic communities. Being remedial in nature, section 16.1 also imposed substantive obligations on the New Brunswick government to introduce measures to ensure that past injustices were corrected and that the minority linguistic community did in fact enjoy the same status and privileges as that of the majority.
In light of New Brunswick's history, the evolution of its statutory provisions regarding English and French, and the constitutional entrenchment of principles that have no equivalent in the text of the Constitution Act, 1867, the Court of Appeal concluded that the past interpretation of section 133 was not wholly applicable to a proper understanding of the scope of ss. 18(2) of the Charter.34 The latter had to be interpreted by reference to the two principles of inter-community equality and the equality of both official languages. To exclude municipal by-laws from the scope of ss. 18(2) would not only run counter to the attainment of real substantive equality for members of a minority official language community, but would be inconstistent with the preservation and vitality of the minority community. The Court of Appeal also indicated that a broad and purposive interpretation of ss. 18(2) is supported by the unwritten constitutional principle of the protection of minorities.
The Court of Appeal rejected arguments to the effect that the city of Moncton was somehow not subject to the provisions of the Charter, pointing to Supreme Court jurisprudence to the contrary. It emphasized two factors identified by the Supreme Court as establishing the general applicability of the Charter to municipal corporations. First, municipalities have the power to enact rules of law and to enforce them over a designated territory. Second, municipalities are created by provincial governments that are, themselves, subject to the terms of the Charter of Rights and Freedoms. In the event that municipalities were found not to be subject to the Charter, provincial governments could easily escape their own obligations under the Charter by delegating rule-making authority to the local level of government. The constitutional obligation of New Brunswick to adopt, print and publish its provincial statutes in both official languages (under ss. 18(2) of the Charter) was thus quite rightly applied to municipalities which, in effect, acted as delegates of the provincial government.
The Court of Appeal entertained little doubt that the government of New Brunswick was obliged to take positive measures to ensure that the constitutional obligation under ss. 18(2) was fully implemented. It pointed to the provisions under ss. 16.1(2) regarding the role of the government to protect and promote the equal status, rights and privileges of the two linguistic communities. It concluded that: "This provision encompasses, like section 23 of the Charter, a collective dimension and imposes on the government the obligation to act positively to ensure the respect and substantive application of these language guarantees."35 In addition, provincial statutory law (An Act Recognizing the Equality of the Two Official Linguistic Communities in New Brunswick, section 3) sets out in clear terms the obligation of the government: "The Government of New Brunswick shall, 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." By adopting these statutory and constitutional provisions: "[...]New Brunswick has accepted that is has the responsibility to take all possible steps for the preservation and development of the two official language communities. By that, it recognizes that the two languages and the two cultures they transmit constitute the common heritage of all persons in New Brunswick, and they must be able to enjoy an atmosphere conducive to development."36
Having determined that the city of Moncton had failed to adopt and issue its by-laws in both official languages as required by ss. 18(2) of the Charter, the Court of Appeal turned to the issue of possible remedies that might be ordered. While a declaration that such by-laws were legally invalid (and thus of no force and effect) was justified in the circumstances, the Court took notice of the possible legal uncertainty and chaos that might ensue if such an order issued without qualification. It therefore adopted the reasoning of the Supreme Court of Canada concerning a breach of a similar constitutional guarantee by the province of Manitoba.37 In that case, the Supreme Court had suspended the operation of its declaration of invalidity against unilingual Manitoba statutes for a period of time necessary to allow the province to readopt and reissue its laws in both official languages. By so doing the Supreme Court avoided creating a legal vacuum that would have been inconsistent with the rule of law. It was this solution that the Court of Appeal adopted:
" In this case, the effect of a declaration of invalidity of municipal by-laws within the boundaries of the City of Moncton, if not throughout most of the province, must also be considered. In my view, a solution of the type adopted by the Supreme Court in the circumstances outlined above appears to be the most appropriate remedy given the potentially wide ramifications that would result from a legal vacuum if the by-laws were declared invalid without the necessary period to remedy the problem of unilingual
The Court of Appeal therefore suspended its declaration of invalidity for a period of one year in order to allow the government of New Brunswick to take the steps necessary to correct the constitutional breach. It also indicated that the provincial government should have some latitude to enact the type of measures it judged appropriate in the circumstances, suggesting that bilingual issuance of by-laws might be subject to a "where numbers warrant" test:
"It is obvious that the government has a choice in the institutional means by which its obligations can be met. For example, the exhaustive inquiry of the task force on official languages in New Brunswick (Towards Equality of Official Languages in New Brunswick, at pages 337-84) dealt with the linguistic composition of the population of New Brunswick municipalities. The report acknowledged that a possible approach that would meet the constitutional obligation of the principle of equality of official languages might be to implement a language policy whereby municipal services would be available in both official languages only where numbers warrant. This is a quantitative approach in which certain municipalities might be declared bilingual on the basis of a percentage of the population representing an official language minority. The percentage would have to be determined by the legislature."39
The government of New Brunswick subsequently announced that no appeal would be launched against the Charlebois decision and that a complete review of the Official Languages Act of New Brunswick would be undertaken.
A new Official Languages Act for the province has now been adopted that significantly extends the rights and obligations under previous legislation.40 The new Act confirms the obligations of the largest urban centres in the province to adopt and publish their by-laws in both English and French, and extends the same obligation to any other municipality containing an official language minority of at least 20%.41 The new Act also establishes a time frame within which these obligations are to be met. With respect to new by-laws and new amendments made to existing by-laws, the bilingual rule takes effect as of December 31, 2002. This same obligation (including the time frame) is extended to the minutes of council proceedings in the cities and municipalities covered by the Act. As to existing by-laws that were adopted in these cities and municipalities in the past (with the exception of Moncton to which the obligation takes effect at the earlier date), the new Act provides that they will be adopted and published in both official languages on or before December 31, 2005. Cities or municipalities to which these obligations apply are also required by the new Act (section 36) to offer services and communications in both official languages as prescribed by regulation. A regulation has been enacted that identifies a wide range of services and communications that must be offered in English and French.42 In addition, the new Act explicitly recognizes the authority of any municipality in the province to declare itself bound by the provisions of the Act through the adoption of a by-law to that effect by its municipal council. In the event of such a declaration, only those provisions of the Act apply which relate to the adoption and publication of by-laws (as well as the minutes of council proceedings) in both official languages. The new Official Languages Act also contains provisions that enhance and clarify rules regarding the use of both official languages in the legislative and judicial processes.
Finally, it should be mentioned, that the new Act creates the position of Commissioner of Official Languages (the fourth in Canada) with the authority to investigate, report on and make recommendations with respect to compliance with the Act. To fulfill this role the Commissioner is empowered to investigate complaints from third parties or on his or her own initiative and to report and make recommendations with respect to the results of such investigations.