3. LANGUAGE RIGHTS IN THE ADMINISTRATION OF JUSTICE
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The right to use either English or French before the courts is guaranteed by several constitutional instruments, including the Charter, the Constitution Act, 1867 and the Manitoba Act, 1870. Several provisions of federal and provincial statutes, such as the Criminal Code, Part III of the federal OLA and the New Brunswick Official Languages Act, complement the bilingualism of federal and in some cases provincial judicial institutions.
The federal and provincial governments regulate various aspects of the use of official languages in the courts within their respective jurisdictions. The federal government is responsible for regulating the use of official languages in criminal proceedings and in federal courts.
In criminal proceedings, the courts’ language obligations are set out in Part XVII of the Criminal Code. The provisions dealing with the language rights of the accused, namely sections 530 and 530.1, guarantee the right to speak and to be understood by a judge or a judge and jury in the official language of choice. Whereas section 530 provides for the right of an accused to apply for an order to have the trial conducted in his or her official language, section 530.1 describes the practical consequences of such an order. Recently, these rights have been improved and clarified by Parliament with the adoption of Bill C-13,67 which received royal assent on the May 29, 2008. In addition, section 530, which previously provided that only unrepresented accused were to be advised of the right to a trial in the official language of choice, now provides that the judge is to ensure that all accused are advised of that right. These provisions apply to all provincial courts that conduct criminal trials. Their purpose 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."68 It should be noted that, where the provinces or territories are authorized to handle federal offences, they act on behalf of the federal government and must therefore ensure the respect of the language rights established in federal legislation.69
The language obligations of federal courts70 derive from the Constitution and from the OLA. Section 19 of the Charter provides that either English or French may be used by any person in, or in any pleading in or process issuing from, any court established by Parliament.71 Part III of the OLA adds to this fundamental right by providing certain institutional obligations to facilitate access to the federal courts in both official languages. These obligations include the duty to ensure that witnesses appearing before federal courts can be heard in the official language of their choice without suffering any detriment thereby; offer simultaneous interpretation services at the request of any party; ensure that the judge hearing a case understands the official language of the parties without the assistance of an interpreter;72 and publish decisions in both official languages simultaneously or at the earliest possible time. When a federal institution is a party to the proceedings, its counsel has the obligation to use, in arguments and pleadings, the official language chosen by the civil party.
In addition to certain constitutional obligations,73 the provinces and territories are responsible for regulating the use of official languages in civil proceedings. For example, the Courts of Justice Act of Ontario and the Languages Act of the Yukon Territory provide for the use of both official languages in civil proceedings before their respective judicial institutions.
It should be noted that language rights in the administration of justice can only be implemented if there is a sufficient number of bilingual judges and staff to put these rights into practice. Recently, in Belende v. Patel, the Ontario Court of Appeal commented on the negative impact caused by the shortage of bilingual judges on the language rights of parties appearing before the courts.
In the seminal Beaulac74 judgment, the Supreme Court of Canada held that language rights "must in all cases be interpreted purposively, in a manner that is consistent with the preservation and development of official language communities in Canada"75 [Emphasis in original]. The judgment in Beaulac also recognized that language rights and the right to a fair trial are distinct in nature.76 The right to a fair trial concerns the right of an accused to understand the proceedings and make him or herself understood,77 whereas language rights are positive rights that have a completely distinct purpose. As will be seen, the Ontario Court of Appeal applied these principles in the Belende v. Patel decision, while the Court of Appeal for the Yukon Territory failed to make the distinction between language rights and the right to a fair trial in the Kilrich Industries Ltd. v. Halotier case.
During the two-year period covered by this report, the courts handed down several judgments on the question of official languages in the administration of justice. Language rights in civil proceedings in Ontario, the Yukon Territory and Alberta are among the issues discussed, as are the rights of the accused and witnesses in the criminal context.
3.1 The right to a bilingual hearing in Ontario
Belende v. Patel78
In this case, the Ontario Court of Appeal considered the nature of the right to a bilingual proceeding pursuant to section 126 of the Courts of Justice Act.79
The plaintiff, Mr. Belende, initiated a bilingual proceeding in the Ontario Superior Court of Justice against the defendants, Babubhai Patel, CDN Business Investor Corp., Farzana Nabizada and Seena Nasrati. Mr. Belende was seeking an order rescinding the sale of his property and awarding him general damages in the amount of $1.5 million. Prior to the hearing, Mr. Belende was notified that a bilingual judge would not be available to hear the scheduled motions, which included a motion to dismiss. On the day of the hearing, his lawyer requested that the hearing of the motions be adjourned to a later date when a bilingual judge would be available. The motion judge, who was not bilingual, denied the request for an adjournment. He found that, due to Mr. Belende’s behaviour, in particular his objection to the presence of more than 16 individual judges on the basis of language, his request for a bilingual judge was an attempt to further delay the proceedings. The motion judge proceeded with the hearing and granted the motion dismissing Mr. Belende’s action.
Mr. Belende appealed the order, arguing that the motion judge’s failure to adjourn the proceedings and to refer the matter to a bilingual judge violated his right to a bilingual proceeding conferred by section 126 of the Courts of Justice Act. The Ontario Court of Appeal allowed Mr. Belende’s appeal, having found that his right to a bilingual proceeding had been violated.
In his analysis, Rouleau J.A. first addressed the decision of the motion judge to refuse the adjournment of the proceedings. He found that there was no evidence to support the conclusion that all bilingual judges in the region were precluded from hearing Mr. Belende’s case. He also explained that the Court need not resort to violating a litigant’s statutory right to a bilingual trial in order to address a litigant’s abuse of process. The Court has other means of doing so. Furthermore, the Court’s inherent jurisdiction to control proceedings cannot be exercised in a manner that would conflict with the express provisions of a statute. In the case at bar, the right to a bilingual proceeding provided for in section 126 of the Courts of Justice Act is not qualified by any grant of judicial discretion. Rouleau J.A. concluded that the motion judge should have adjourned the proceedings until a bilingual judge was available.
Rouleau J.A. then addressed the respondents’ argument that the appeal should be dismissed because Mr. Belende did not suffer any prejudice. Citing the Supreme Court of Canada decision in Beaulac,80 he held that the right to a bilingual hearing is a particular kind of right: more than a procedural right, it is substantive. Rouleau J.A. described the consequences of this distinction in paragraph 24 of his decision:
English and French are the official languages of the courts in Ontario, and the court has a responsibility to ensure compliance with language rights under s. 126 of the Courts of Justice Act. A proper interpretation of this provision is one that is consistent with the preservation and development of official language communities in Canada and with the respect and preservation of their cultures: see Beaulac, at paras. 25, 34 and 45. Violation of these rights, which are quasi constitutional in nature, constitutes material prejudice to the linguistic minority. A court would be undermining the importance of these rights if, in circumstances where the decision rendered on the merits was correct, the breach of the right to a bilingual proceeding was tolerated and the breach was not remedied.81
Consequently, the Court of Appeal set aside the order of the motion judge, and referred the matter back to the Superior Court to be heard by a bilingual judge.
Following the resolution of this case, Rouleau J.A. added, "it is somewhat troubling that although the motions below were brought as part of a bilingual proceeding with sufficient notice, no bilingual judge was available to hear them." He then referred to the Honourable Coulter A. Osborne, Q.C.’s November 2007 report entitled Civil Justice Reform Project82 in which the author highlights the need for more bilingual judges in Ontario courtrooms, particularly in Toronto.
