4. LANGUAGE RIGHTS AND SERVICES TO THE PUBLIC
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Section 20 of the Charter grants members of the public two fundamental rights: the right to receive services from federal institutions and the institutions of New Brunswick in either official language and the right to communicate with these institutions in either official language. While the obligations imposed on New Brunswick apply to all of the province’s institutions, wherever they may be, the obligations on federal institutions depend on certain criteria: whether the communication or service originates from the head or central office of the institution concerned, the office is located in an area where there is significant demand for the use of English or French or, because of its nature, the office is required to provide services in both official languages.
The rights and obligations imposed by the Charter on federal institutions are implemented and clarified in Part IV of the OLA. This part stipulates, among other things, that federal institutions must ensure that services offered to the public by third parties, on their behalf, are available in both official languages when the institution itself is subject to such a requirement. The OLA also requires federal institutions to make an active offer of service, informing members of the public that they have the option to be served in either English or French.
The Official Languages (Communications with and Services to the Public) Regulations further clarify the situations in which communications and services must be offered in both official languages, particularly in regards to the concepts of "significant demand" and "nature of the office" used in Part IV of the OLA.
Recently, the Supreme Court of Canada rendered two important judgments in relation to language rights and services to the public. In Société des Acadiens et Acadiennes du Nouveau-Brunswick Inc. v. Canada, the Court determined that members of the Royal Canadian Mounted Police (RCMP), a federal institution, are required, when performing the duties of provincial police officers, to fulfill the language obligations imposed on institutions of the New Brunswick government. In DesRochers v. Canada (Industry), the Court found that substantive equality does not necessarily translate into identical services for each language community. Rather, linguistic equality in government services must be defined in light of the nature and purpose of the service in question. While the first of these two judgments is an important victory for members of New Brunswick’s French-speaking community, the latter is expected to have important repercussions for all official language minority communities throughout the country.
Several other judgments rendered in the period covered by this report considered the public’s right to be served by and communicate with government institutions in the official language of choice. While some dealt with rights conferred by the Charter and federal legislation, others explored the obligations imposed on government institutions at the provincial or territorial level.
4.1 Constitutional language obligations of the Royal Canadian Mounted Police when acting as a provincial police force in New Brunswick
Société des Acadiens et Acadiennes du Nouveau-Brunswick Inc. v. Canada127
In this case, the Supreme Court of Canada formulated the following constitutional question:
Does section 20(2) of the Charter require the RCMP to provide services in both official languages when acting as a provincial police force pursuant to an agreement between the governments of New Brunswick and Canada?
Under an agreement between Canada and New Brunswick, the RCMP, a federal institution, acts as the provincial police force for that province. Section 20(2) of the Charter provides that any member of the public has the right to communicate with and receive available services from New Brunswick institutions in English or French, whereas under section 20(1), the right is dependent upon the presence of a "significant demand" or based on the nature of the office in question. Both the New Brunswick128 and federal129 official languages acts further detail the right to communicate with and receive available services in the language of choice within their respective jurisdictions. The issue in this appeal was whether the RCMP is bound by the more generous rules respecting language in New Brunswick or is required to meet only the federal official languages standards.
A. Federal Court judgment130
The Federal Court held that serving as a provincial police force makes the RCMP a New Brunswick institution for the purposes of section 20(2) of the Charter and is therefore required to provide services in accordance with the province’s language requirements. In the Court’s opinion, although the RCMP is a federal institution, it is subject to the control of the Attorney General or the minister responsible for policing services when providing provincial policing services under the agreement. Furthermore, in enforcing the New Brunswick Motor Vehicle Act,131 the RCMP is performing a provincial government function. Accordingly, when the RCMP is acting under provincial legislation, it has to be bound by the specific constitutional obligations of the province provided for in section 20(2) of the Charter.
B. Federal Court of Appeal judgment132
In a unanimous decision, the Federal Court of Appeal granted the appeal and set aside the Federal Court judgment. Essentially, the Court of Appeal concluded that the language obligations contained in section 20(2) of the Charter applied only to the province of New Brunswick. As a federal institution, the RCMP’s statutory language obligations were limited to section 20(1) and the federal OLA, even when it was acting on behalf of the province. The court clearly indicated that it is the province that remains responsible for the obligations imposed by section 20(2) and the New Brunswick Official Languages Act (NB OLA), emphasizing the distinction between the linguistic obligations governing the RCMP as a federal institution and the additional language obligations that the province might impose under the terms of an agreement.
C. Supreme Court of Canada judgment
In a decision written by Bastarache J., the Supreme Court of Canada examined the provincial and federal legislation surrounding the agreement between Canada and the province of New Brunswick regarding the provision of police services, as well as the content of that agreement, in arriving at its conclusion that the RCMP is subject to the specific constitutional obligations found in section 20(2) of the Charter.
The agreement is authorized by both provincial statute (section 2 of the Police Act133) and by federal statute (section 20 of the Royal Canadian Mounted Police Act134 [RCMPA]). In addition to the RCMP’s role as a federal institution, the RCMPA provides that it may also be given the responsibility for the administration of justice and law enforcement in provincial or municipal jurisdictions. In the words of Bastarache J., "[p]rovincial laws must, of course, be enforced in a manner consistent with the Constitution."135 The provincial nature of the RCMP’s role in the administration of justice is reinforced by the fact that section 2(2) of the Police Act gives every member of the RCMP all the attributes of a New Brunswick peace officer. Given that the Police Act authorizes members of the RCMP to administer justice in the province, the Supreme Court found that the RCMP is performing the role of an "institution of the legislature or government"136 of New Brunswick, and must therefore comply with the obligations contained in section 20(2) of the Charter.
As for the agreement itself, the Supreme Court found that there was no transfer of responsibility for the administration of justice in the province; the New Brunswick Minister of Justice is responsible for setting "the objectives, priorities and goals of the Provincial Police Service (art. 3.3)," thus retaining "control over the RCMP’s policing activities," and "[t]he RCMP remains responsible for internal management only (art. 3.1(a))."137 Much like the Federal Court, the situation described in the agreement led the Supreme Court to conclude that "the institution in question is an institution of the New Brunswick government, that is, its Minister of Justice, and that the Minister discharges his or her constitutional obligations through the RCMP members designated as New Brunswick peace officers by the provincial legislation."138 As such, the provision of policing services must be consistent with the obligations provided for under section 20(2) of the Charter.
In short, the RCMP assumes by way of contract the obligations associated with the policing function. The content of that function is set out in both provincial and federal legislation, and is subject to specific constitutional obligations. As such, the Supreme Court found that "[t]he RCMP may not take on such functions without assuming the obligations associated with them."139
The appeal was therefore allowed.
