III- LANGUAGE RIGHTS AND SERVICE TO THE PUBLIC
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3.2 Services provided by the RCMP
R. v. Desgagné
The judgment of the Saskatchewan Provincial Court in Desgagné71 raises two questions, namely (1) that of the linguistic obligations in that province regarding the drafting of municipal tickets; and (2) that of the language obligations of Royal Canadian Mounted Police officers when they are performing provincial duties, in particular when an officer is addressing a motorist to issue him a ticket for a breach of the highway code, especially his obligations regarding the active offer.
In that case, Mr. Desgagné was charged with speeding on two occasions. On the first occasion, he allegedly infringed the Highway Traffic Act when he was driving on the highway near Moose Jaw and was stopped by an RCMP officer. On the second occasion, he allegedly infringed a municipal by-law of the city of Regina and was apprehended by a municipal police officer.
1) Language obligations regarding municipal tickets
This question concerned the incident in Regina. The Court was careful to note that unlike section 530 of the Criminal Code, section 11 of the Saskatchewan Language Act72 does not confer a right to decide the language of a trial, it simply states that French may be used in the provincial courts. In addition, unlike section 849 of the Criminal Code, this Act contains no provision regarding the language used on forms; in so far as section 11 can be applied to ticket offences, the choice of language belongs to the person writing the ticket. Finally, it held that no provision guaranteed access to a bilingual municipal police officer.
2) Language obligations of the RCMP
This question concerned the incident that occurred near Moose Jaw. The Court considered the testimony given at the trial and concluded that Mr. Desgagné had been arrested for speeding, he had addressed the constable in French and the latter asked him if he could answer in English. Mr. Desgagné replied that he understood that language and the conversation proceeded in English. It also noted that Mr. Desgagné had not asked for service in French and the constable had indicated that if that had been the case, he could have served Mr. Desgagné in halting French. If that proved unsatisfactory, the RCMP could have provided this service, as there was an officer at the detachment assigned to that specific duty.
In its judgment, the Court concluded that [translation] "Whatever the RCMP’s duties are when performing provincial functions, there is no requirement that the force offer service in French if it is not requested".73 Consequently, the Court held that the two arguments made did not constitute a defence and convicted Mr. Desgagné on both counts. It should be noted that the accused did not invoke section 28 of the Official Languages Act regarding the duty imposed on federal institutions, such as the RCMP, to make an active offer. If that had been the case, the decision might have been different.
R. v. Doucet
As in Desgagné, the judgment of the Nova Scotia Supreme Court in Doucet74 raises, in addition to the question of a reasonable delay in the holding of the trial, the question of the linguistic obligations of RCMP officers when they are performing provincial duties, particularly their active offer obligations.
While travelling along the Trans-Canada Highway in the Amherst region, Mr. Doucet was arrested for speeding by an RCMP officer. At the time of the arrest and throughout the conversation that followed, Mr. Doucet addressed the RCMP officer in French and the latter spoke to him only in English. It further appeared from the evidence that the officer was a unilingual Anglophone, that Mr. Doucet understood English and that he made no express request for services in French.
The trial was held in the Provincial Court in November 1999. In his judgment, the trial judge considered inter alia that section 20 of the Charter did not apply to the RCMP when it was offering services under a provincial contract and that, therefore, this provision could not be applied in the circumstances. Accordingly, he convicted the accused of a breach of the Nova Scotia Motor Vehicle Act.
Appealing the Provincial Court judgment, Mr. Doucet alleged that the trial judge erred in law and in fact, specifically in three respects: (1) by not taking into account that the RCMP is a federal institution, whatever the nature of the service it is providing, and so subject to the Charter; (2) by giving an erroneous interpretation of the concept of "active offer" in deciding that using French as a language of communication did not amount to requesting service in that language; and (3) by deciding that the appellant’s request for service was not a significant demand within the meaning of the Act.
1) Application of section 20 of the Charter to the RCMP
Considering first the question of language rights under the Charter, the Nova Scotia Supreme Court judge indicated that [translation] "there was no doubt members of the RCMP were bound to uphold both provincial and federal statutes under the RCMP Act"75 and that in his opinion [translation] "members of the RCMP do not lose their federal status when they act under a contract with a province or give effect to provincial legislation".76 Accordingly, the RCMP remained a federal institution. He added, referring to Canada (Commissioner of Official Languages) v. Canada (Department of Justice)77 that [translation] "federal institutions are not allowed to avoid their linguistic responsibilities by means of contracts or other arrangements transferring or delegating some of their functions".78 Consequently, he concluded that section 20 of the OLA applied to the case at bar.
2) Whether section 20 of the Charter was breached in this particular case
Going on to analyse the circumstances of the arrest, the judge concluded that the appellant had not made a specific or express request to the officer for services in French and accepted the officer’s testimony that he had not realized the appellant wished services in French. The judge was careful to indicate, however, that if he had been satisfied that the officer realized the appellant wanted services in French, the fact that the officer thought the appellant understood English would not have been an excuse.
The judge further indicated that he was [translation] "not satisfied that RCMP officers patrolling Nova Scotia highways must actively inquire into whether the accused wish services in either official language."79 Consequently, he held that it [translation] "was not necessary for members of the RCMP to notify the accused that they can select the language of communication."80 He noted, however, that an accused did not have to persist if met with indifference by an arresting officer, but more was necessary than what the appellant had done in the case at bar. The judge accordingly relied on the view taken on the facts by the trial judge. He therefore could not [translation] "conclude that the trial judge made an error in finding that the appellant had not submitted enough evidence to show a specific or explicit demand, or even implicit demand, for services in French."81 He consequently dismissed the appeal.
The judge also ruled on the question of the significance of the demand. He concluded that the appellant had not submitted any evidence to show that needs were different on the Trans-Canada Highway from other highways. Accordingly, it could not be concluded that the RCMP’s mission when it was patrolling the Trans-Canada Highway could justify use of French and English. Finally, although French might be the subject of significant demand on the Trans-Canada Highway in the Amherst region, the appellant did not submit sufficient evidence to show a significant demand for service in French within the meaning of paragraph 20(1)(b) of the Charter in that region, although the burden of proof was upon him to do so. The Court cannot take judicial notice of such demand, even though it is a Maritime province where many Francophones live and the Amherst region is a principal point of entry between New Brunswick and Nova Scotia.
Noting these comments on the evidence, Mr. Doucet subsequently filed a proceeding in the Federal Court on the same facts, accompanied this time by evidence of "significant demand" for the use of French on the Trans-Canada Highway in the Amherst region. A summary of this proceeding follows.
