2. Language Rights and Proceedings of Parliament
Page 6 of 22
Section 133 of the Constitution Act, 1867 and subsection 17(1) of the Canadian Charter of Rights and Freedoms (Charter) entrenched the right of every person to use either official language in the debates and proceedings of Parliament. This right is reaffirmed in Part I of the Official Languages Act (OLA), which makes French and English the official languages of Parliament. This part of the OLA also imposes on Parliament the duty to provide simultaneous interpretation of its debates and other proceedings. Furthermore, reports of debates or other proceedings of Parliament must be reported in the official language in which it was said and a translation of it into the other official language must be included.
These rights and duties, which are rarely the subject of court actions, are intended to give English and French equal rights and privileges of use in parliamentary activities, such as the debates of the House of Commons and Senate and the work of their committees. During the period covered by this report, only one decision considered the content of the right provided for by Part I of the OLA, in the context of the language of documents tendered by a member of the public who appeared as a witness before a parliamentary committee.
2.1 Language rights of witnesses appearing before parliamentary committees
Knopf v. Canada (Speaker of the House of Commons)
The Federal Court’s judgment38 in this case raises the question of the interpretation of section 4 of the OLA and section 17 of the Charter, to determine whether a parliamentary committee’s refusal to distribute unilingual documents , tendered by a witness in support of his appearance before this committee, to its members was an infringement of his language rights.
The applicant, Mr. Knopf, had testified in English, the language of his choice, before the Standing Committee on Canadian Heritage (Committee) in April 2004, and the clerk of the Committee had accepted the unilingual English documents tendered in support of his appearance. However, the chair of the Committee refused to distribute the documents to Committee members in accordance with a motion adopted earlier authorizing the clerk to only distribute documents to the members that were written in both official languages.
Mr. Knopf filed a complaint with the Office of the Commissioner of Official Languages about the Committee chair’s refusal to distribute the documents. The Commissioner concluded that the Committee’s decision was not a breach of the OLA and was entirely consistent with the intention and spirit of the Act.
Mr. Knopf subsequently filed an action in the Federal Court pursuant to section 77 of the OLA. He asked the Court, among other things, to declare that his language rights provided for in sections 16 and 17 of the Charter and section 4 of the OLA had been infringed upon by the Committee and to order all committees of the House of Commons to accept, distribute and consider relevant documents submitted by all witnesses in either official language, without the documentation having to be translated beforehand.
The three parties involved in the case, that is, the applicant, Mr. Knopf; the respondent, the Speaker of the House of Commons of Canada; and the respondent, the Attorney General of Canada, each characterized the issue differently. For the applicant, it consisted primarily of determining whether the OLA or the Charter gave him the right to tender unilingual documents for immediate distribution to Committee members, and whether the Committee had the right, because of parliamentary privilege, to refuse to distribute the unilingual documents to Committee members. The Speaker of the House of Commons summed up the question in the following manner: could the House and its committees, by virtue of parliamentary privilege, establish their own internal procedures free from interference from the courts or other outside entities? The Attorney General wanted to know if Mr. Knopf’s right to express himself in the official language of his choice obligated a House of Commons committee to distribute unilingual documents to its members.
Layden-Stevenson J. of the Federal Court dismissed Mr. Knopf’s application on the ground that there was no infringement of his language rights. Furthermore, she noted that the Court could not review the Committee’s decision since it was protected by parliamentary privilege.
1) Whether the Committee’s refusal to distribute the documents was a breach of the Official Languages Act
It should be noted that subsection 4(1) of the OLA gives everyone the right “to use either [official language] in any debates and other proceedings of Parliament.” As to whether or not Mr. Knopf’s language rights had been infringed upon, the Court concluded that the Committee’s refusal to distribute documents prepared only in English was not a breach of subsection 4(1) of the OLA. It pointed out that this provision protects everyone’s right, including that of witnesses, to speak in the official language of his or her choice during committee proceedings and debates, but does not confer the right to have a document circulated in the official language chosen by the witness. Since Mr. Knopf was able to address the Committee in the official language of his choice, it follows that his language rights were respected. In the judge’s view, his request to have unilingual documents distributed to Committee members was not a question of language rights: rather, it was a challenge to the way in which the Committee conducted its business.
In short, the Court held that, in form, Mr. Knopf’s complaint related to language rights, but in substance, it was concerned more with the Committee’s decision and its refusal to consider the documents submitted by the applicant.
2) Whether the Committee’s decision was protected by parliamentary privilege
In view of her conclusion that there was no infringement of the applicant’s language rights, the judge considered that it was unnecessary for her to address the issue of parliamentary privilege. However, she did consider the issue since it was the focus of most of the arguments at the hearing.
Following the principles established by the Supreme Court in Vaid,39 the judge noted that there has long been an inherent category of parliamentary privilege regarding the control exercised by the Houses of Parliament over their day-to-day procedure. As the distribution of documents directly affects the internal operations of the Committee, that is, the House’s right to determine its own rules of procedure and to conduct its activities without interference, the privilege was established in this case. Consequently, the judge indicated that it was for Parliament, and not the courts, to determine whether exercising this privilege was necessary or appropriate in a particular case. In short, the Committee’s decision not to distribute the documents could not be reviewed by the Court.
3) Costs and related charges
Finally, on the question of costs and related charges, Mr. Knopf had referred to subsection 81(2) of the OLA, which provides that where a court is of the opinion that an application raises an important new principle in relation to the Act, it shall order that costs be awarded to the applicant. On this point, the judge concluded that the issues raised in this case were important, but did not fall within the parameters of subsection 81(2). The action was accordingly dismissed, with each party bearing its own costs.
It should be noted that Mr. Knopf has appealed this decision to the Federal Court of Appeal40.
