III- LANGUAGE RIGHTS AND SERVICE TO THE PUBLIC
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Section 20 of the Charter enshrines the fundamental right of the public to receive services from federal institutions and from those of New Brunswick in either official language. Where federal institutions are concerned, however, this right is limited to services received from the head or central office of the institution in question, offices located in regions where there is a significant demand for use of French and English or offices of the institution where, due to their nature, it is reasonable that bilingual services be offered. Similar limits are not placed on New Brunswick institutions, so that services may be offered in both languages by all "institutions" of New Brunswick, regardless of where they are located in the province.
Part IV of the Official Languages Act codifies this constitutional requirement for services to the public by federal institutions with the same limits, and adds a provision regarding what is termed active offer. Thus, under section 28 of the OLA, federal institutions are required to ensure that appropriate measures are taken to actively offer services to the public in both official languages.
The Official Languages (Communications With and Service to the Public) Regulations define the concepts of "significant demand" and "nature of the office" used in the OLA and indicate the situations in which services must be given in both official languages. Essentially, these Regulations make a distinction between communities of at least 100,000 inhabitants and smaller towns, localities and rural regions. For the minority population in each category, it sets the various thresholds necessary to create a duty to provide federal government services in both official languages.
During the period covered by this report, several questions arising from the duties of federal institutions and of New Brunswick in providing services to the public have been before the courts.
3.1 Broadcasting of House of Commons debates
Quigley v. Canada (House of Commons)
The preceding report on language rights dealt in detail with the judgment of the Federal Court Trial Division in Quigley.63 That case raised the question of the scope of the language obligations of the House of Commons when it chooses to have its debates broadcast by third parties. In particular, it raised the question of whether the House of Commons had a duty under section 25 of the OLA to ensure that the Cable Public Affairs Channel (CPAC)—and, ultimately, the broadcasting distribution undertakings (BDUs) with which CPAC did business—broadcast debates in both official languages. That case also raised the question of whether the Federal Court had jurisdiction to apply the OLA to the House and to order a remedy, or whether the latter could rely on its inherent constitutional privilege with respect to publication of its proceedings.
On the question of privilege, the Federal Court concluded that although a privilege existed for control of publication of House of Commons debates and proceedings, that privilege did not apply in the particular case. "Since the House has in the past and is continuing to provide the CPAC with all three audio signals, floor sound plus English-only and Frenchonly sound signals, the issue of parliamentary privilege relating to the control of the publication of the debates does not arise in this case. The CPAC has all of the above-mentioned feeds available for the BDUs and the BDUs choose which feeds they wish to distribute."64 Accordingly, the Federal Court concluded that it had jurisdiction to apply the OLA to the House.
With respect to the scope of the House of Commons obligations, the Federal Court concluded that the CPAC was the vehicle used by the House to communicate its debates to the public, the CPAC was acting "on behalf " of the House for the public broadcasting of debates, and agreements concluded between the speaker of the House and the CPAC were quite clearly covered by section 25 of the OLA. It also concluded that section 25 of the OLA had not been observed in the particular case, since the "CPAC, in its agreement with the House, did not undertake to ensure that its distribution contracts with various BDUs would guarantee broadcasting in both official languages."65
Finally, the Court held that section 25 of the OLA required that "any agreement between the House and CPAC, based on the facts of this case, must ‘ensure’ that the eventual broadcasting of the proceedings already provided by the House be in both official languages."66 It therefore ordered that the House and its administration take the necessary measures to comply with section 25 of the OLA within a year of the judgment.
The Attorney General of Canada appealed this judgment to the Federal Court of Appeal. That appeal was dismissed as being moot.67 The Court held that the appeal was devoid of any practical significance, as the method currently used to provide public television broadcasting is different from that used when the order at trial was made. It also relied on the fact that Mr. Quigley was now receiving CPAC in the official language of his choice as a result of this new method, made applicable by the new CRTC Regulations that required cable broadcasters, as a condition of their licenses, to distribute House proceedings in both official languages.
Although the Court could have exercised its discretion and decided to hear the appeal on a moot point, it concluded from a "concern for judicial economy" that it would not hear the case. It mentioned the absence of the CRTC and the CPAC in support of its choice, for "any decision made in the absence of these parties would not bind them, so that the same issue could be relitigated at a later date."68 The Court added that "to the extent that the Court must be attentive that it not stray into the legislative domain, it must be particularly careful not to do so in relation to the rights and privileges of Parliament itself. Parliament is not above the law, but the Court ought not to delve into its internal operations except where it is clearly necessary to do so. In this case, it is not".69
In short, the Court held that "no useful order may be made by this Court in an area where evolving technology plays such a great part without the participation of the CRTC and of the broadcasting industry".70
