4. Language Rights and Service to the Public
Page 12 of 22
4.2 Principle of active offer with respect to policing services in New Brunswick
R. v. McGraw
In this case, 87 the New Brunswick Court of Queen’s Bench ruled on the principle of the active offer of service stated in section 31 of the N.B. OLA.
Mr. McGraw was stopped by an RCMP officer in the village of Tracadie-Sheila, a predominantly Francophone community on the Acadian Peninsula, and received two tickets pursuant to the Motor Vehicle Act. 88 Both tickets were written in French and the communication between the RCMP officer and Mr. McGraw was entirely in French.
During the trial in Provincial Court, Mr. McGraw moved for a dismissal of the charges on the ground that the RCMP officer had not given him the choice of the language in which he wanted to communicate and be served. In his testimony, the officer indicated that he took Mr. McGraw’s choice for granted.
The evidence at trial disclosed that the officer initiated communication with Mr. McGraw in French. The latter responded in French and at no time requested that the communications be in English. In his testimony, Mr. McGraw said that he was “perfectly bilingual” and stated that he had understood everything the officer had said to him. However, he argued that the N.B. OLA imposes a duty on New Brunswick police officers to inform members of the public of their right to receive service in the official language of their choice.
Since Mr. McGraw understood the police officer, the Provincial Court concluded there had been no infringement of his language rights. It found him guilty on both charges. Mr. McGraw appealed this decision to the province’s Court of Queen’s Bench.
On appeal, McIntyre J. began his analysis by mentioning that the N.B. OLA was enacted in 2002 to advance institutional bilingualism in the province. He noted the comments by the Supreme Court in Charlebois 89 that “the OLA is the province’s legislative response to its obligations under the Canadian Charter of Rights and Freedoms in relation to institutional bilingualism in New Brunswick”. 90 In examining subsection 31(1) of the Act, McIntyre J. noted that this provision created a dual right, namely (1) to communicate with and receive the services of a police officer in the official language of choice, and (2) to be informed of that choice. In his opinion, the right to be informed of the existence of the right to choose the language of communication and service is essential in order to exercise that right.
The judge went on to note that the right to language choice belongs to the member of the public and not the police officer. Thus, even if the member of the public responds in the language in which the communication was initiated, the police officer cannot assume that the language in which the response was made reflects the individual’s choice. Consequently, McIntyre J. concluded that there had been an infringement of the accused’s right to be informed of his choice of language under subsection 31(1) of the N.B. OLA. He therefore overturned the Provincial Court’s decision.
Having then to determine the appropriate remedy for a breach of section 31 of the N.B. OLA, the Court indicated that under subsection 116(1) of the Provincial Offences Procedure Act, 91 subsection 686(2) of the Criminal Code 92 applied. This Criminal Code provision allows a court of appeal to quash a conviction and direct a judgment or verdict of acquittal to be entered, or order a new trial.
Given the distinct status of language rights in New Brunswick, the principle of substantive equality and the preamble to the N.B. OLA, McIntyre J. found that the only effective remedy was to order that the information be quashed and to declare the charge a nullity. Accordingly, the guilty verdict was quashed and Mr. McGraw was acquitted.
