3. Language Rights in the Courts
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The right to use both official languages in the courts is guaranteed by several constitutional documents, including the Canadian Charter of Rights and Freedoms (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 Official Languages Act (OLA) and the New Brunswick Official Languages Act (N.B. OLA), complement the bilingualism of federal, and in some cases provincial, judicial institutions.
The federal and provincial governments, each in its sphere of jurisdiction, regulate various aspects of official language use in the courts. The federal government, for its part, regulates the use of official languages in criminal cases and in federal courts. As for the provinces, they set the standards to be respected concerning the use of official languages in civil proceedings. It should be noted that provinces or territories authorized to handle federal offences act on behalf of federal authorities and therefore must ensure language rights provided for in federal legislation are respected.41
The language obligations imposed on the courts during criminal proceedings are set out in Part XVII of the Criminal Code. The provisions dealing with the language rights of the accused, in other words, sections 530 and 530.1, guarantee their right to speak and be understood by a judge or a judge and jury in the official language of their choice. Section 530 provides that, among other things, accused who are not represented by counsel must be advised of their right to a trial in their own language by the judge before whom they first appear. Section 530.1 clarifies the practical consequences of an order granted under section 530. 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.” 42
The language obligations to which the courts are subject in civil proceedings derive, for their part, from the Constitution and federal and provincial legislation. Section 19 of the Charter guarantees 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 or the courts of New Brunswick. Part III of the OLA adds to this fundamental right certain institutional obligations to facilitate access to the federal courts43 in either official language. These obligations include the duty to ensure that witnesses appearing before them can be heard in the official language of their choice without suffering any detriment thereby; to offer simultaneous interpretation services at the request of any party; to ensure that the judge hearing a case understands the official language of the parties without the assistance of an interpreter;44 and to publish decisions in both official languages simultaneously or at the earliest possible time. As for federal institutions that are party to civil proceedings, they have the obligation to use, for their arguments and pleadings, the official language chosen by the civil party.
For some time, language rights in the courts were given a restrictive interpretation. In Société des Acadiens v. Association of Parents for Fairness in Education,45 the Supreme Court of Canada held that the language rights guaranteed in the Charter were based on a political compromise and “the courts should approach them with more restraint than they would in construing legal rights [embodied in ss. 7 to 14 of the Charter].” This restrictive interpretation deviated from earlier decisions on language rights,46 which favoured a liberal interpretation and were based on the purpose of the rights.
Several judgments following Société des Acadiens were influenced by the principle of political compromise before the Supreme Court of Canada rejected it in R. v. Beaulac.47 In that case, the Court held that the fact that language rights resulted from a political compromise had no effect on their scope and that such rights “must in all cases be interpreted purposively, in a manner consistent with the preservation and development of official language communities in Canada”48 [emphasis in original].
The judgment in Beaulac also noted that language rights and the right to a fair trial are distinct rights.49 While the fairness of a trial concerns the right of the accused to understand the trial and be understood,50 language rights are positive rights that have a completely different purpose, namely the preservation and development of minority official language communities in Canada.
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. For example, while discussing the obligation of a municipality to use the official language chosen by the civil party in civil proceedings, the split decision of the Supreme Court of Canada in Charlebois considered the broader question of the importance of the constitutional and legislative context in interpreting language rights.
3.1 Institutions with language obligations in the New Brunswick courts
Charlebois v. Saint John (City)
In this case,51 the Supreme Court of Canada considered the question of the interpretation to be given to the word “institution” in the N.B. OLA.52 It had to decide whether the City of Saint John (City) was an “institution” subject to the obligation of using the official language chosen by the appellant in a civil proceeding that the appellant had initiated against the City. The Court also had to determine the scope of this obligation.
The appellant, Mr. Charlebois, had challenged a parking ticket issued by the City in English only. His application was drafted in French. The City and the New Brunswick Attorney General filed motions to strike Mr. Charlebois’s challenge. The motion filed by the City was drafted in English only and its counsel’s arguments were made in English. Mr. Charlebois objected to the fact that the City defended itself in English only on the ground that section 22 of the N.B. OLA was applicable to the City and required it to use the language that he had chosen for the proceedings.
On this point, the Court of Queen’s Bench53 and the New Brunswick Court of Appeal54 had held that municipalities were not institutions in the sense of section 1 of the N.B. OLA and consequently did not have a duty, under section 22 of that Act, to file pleadings and present arguments in the official language chosen by Mr. Charlebois.
The Court of Queen’s Bench and the Court of Appeal were of the opinion that an interpretation of the word “institution” that included municipalities was inconsistent with the N.B. OLA. They came to this conclusion mainly by considering sections 27 and 36 of the N.B. OLA. Section 27 of the N.B. OLA provides that members of the public have the right to “communicate with any institution and to receive its services in the official language of their choice.” For its part, section 36 provides that municipalities and cities whose official language minority population represents at least 20% of the total population “shall offer the services and communications prescribed by regulation in both official languages.” Thus, if municipalities were considered “institutions,” they would be required to provide all services and communications in both languages, while municipalities whose official language minority population represented at least 20% of the total population would only be required to provide the communications and services that were prescribed by regulation in both languages. The lower courts were of the opinion that a restrictive interpretation of the word “institution” (that excludes municipalities) remedied this inconsistency.
During the Supreme Court hearing, Mr. Charlebois and the Association des juristes d’expression française du Nouveau-Brunswick argued that the Court of Queen’s Bench and the Court of Appeal had erred in interpreting the word “institution” restrictively. In their opinion, a broad and liberal interpretation of this word did not lead to an inconsistent result since the provisions that dealt specifically with municipalities (35 to 38 of the N.B. OLA) were exceptions to the general provisions of the Act, including sections 22 and 27.
The second question put to the Court had to do with the scope of section 22 of the N.B. OLA, namely whether the duty to use the official language chosen by the civil party for arguments and pleadings extended to evidence submitted during proceedings. On this point, both the majority and the dissenting judges concluded that “oral or written pleadings” did not include items of evidence tendered during the course of a proceeding.
In a split decision,55 the Supreme Court dismissed Mr. Charlebois’s appeal. The Court was divided on the first question, which concerned the interpretive principles applicable to language rights.
Reasons for the majority
1. Meaning of “institution”
Charron J., for the majority, first considered the analysis of the New Brunswick Court of Appeal and noted that the case rested solely on the interpretation given to the word “institution” used in section 22 of the N.B. OLA and defined in section 1, and not on the constitutionality of section 22. She applied the modern method of statutory interpretation, which involves “[reading] the words of an Act . . . in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.”56
She went on to analyse the ordinary and grammatical meaning of the definition of the word “institution” in section 1 of the N.B. OLA, noting that the words “municipality” and “city” were absent from the long list of bodies included in the definition. The question that then arose was whether municipalities and cities constituted bodies “established to perform a governmental function by or pursuant to an Act of the Legislature or by or under the authority of the Lieutenant-Governor in Council.”57
The judge acknowledged that the N.B. OLA was the province’s legislative response to the duties imposed upon it by the Charter. However, she noted that the province’s constitutional obligations did not mandate a single solution:
. . . there is room for flexibility . . . This brings us back to the question of statutory interpretation that occupies us: what approach did the province of New Brunswick adopt in respect of its municipalities to meet its constitutional obligations?58
Considering the structure of the N.B. OLA, Charron J. noted that it contained various headings, one being “Municipalities,” which set out specific language duties in certain areas of activity or service delivery.59 Since the N.B. OLA imposes specific language obligations on municipalities, they are not subject to the same obligations as “institutions.” Instead, municipalities have the option, and not the obligation, of declaring themselves bound by the provisions of the N.B. OLA.60 Moreover, as a matter of statutory interpretation, the Court noted that there was “no doubt . . . that the more restrictive approach was open to the Legislature” and that this interpretation was the only one “that creates no illogical or incoherent consequences when read in the context of the statute as a whole.”61 Since the appellants had not challenged the constitutionality of the Legislature’s choice to prefer a restrictive approach, the judge concluded that it had the option of making this choice.
2. Interpretation of statutes when their constitutionality is not challenged
Charron J. then considered the interpretation adopted by the dissenting judges, by which the specific obligations set out under the heading “Municipalities” are interpreted as exceptions to the general provisions applicable to institutions. She felt that such an approach was incongruous and inconsistent “with the limited role that Charter values can play as an interpretative tool.”62
The majority therefore concluded that, in an action turning on statutory interpretation, the use of the values recognized in the Charter as an interpretative tool has its limits. One should favour the modern method of statutory interpretation and only use the principle of interpretation based on respect for Charter values in cases of genuine ambiguity, “where a statutory provision is subject to differing, but equally plausible, interpretations.”63
Charron J. explained the reasons for such an approach:
In the context of this case, resorting to this tool [statutory interpretation based on Charter values] exemplifies how its misuse can effectively pre-empt the judicial review of the constitutional validity of the statutory provision. It risks distorting the Legislature’s intent and depriving it of the opportunity to justify any breach, if so found, as a reasonable limit under s. 1 of the Charter.64
Consequently, the majority of the Court concluded that the word “institution” did not include municipalities and dismissed the appellants’ appeal with costs.
Dissenting reasons
3. Importance of the legislative context and the presumption of compliance with the Canadian Charter of Rights and Freedoms
The dissenting judges, for their part, per Bastarache J., felt that the majority of the Court had been too formalistic in its approach. They indicated that the ordinary rules of statutory interpretation should continue to guide the courts, but that the legislative background and the presumption of compliance with the Charter were of particular importance. In their opinion, by adopting the N.B. OLA in 2002, the Legislature was following up on the New Brunswick Court of Appeal’s judgment in Charlebois v. Moncton,65 which had concluded that municipalities were subject to constitutional language obligations. Therefore, according to the dissenting judges, it would have been more appropriate for the courts to take a positive stance and see “whether it was necessary to limit the scope of the newly defined term in light of the difficulties posed by the drafting of the OLA.”66
Bastarache J. indicated that when the Legislature chooses to extend minority rights protection, as it did with the N.B. OLA, the courts should not adopt a restrictive interpretation in order to avoid an inconsistent result. Rather, they should search for “a meaning consistent with the protection of minorities and the achievement of equal rights for the two official languages and language communities that can be reconciled with the wording of the legislation whenever possible.”67 For the dissenting judges, it was therefore necessary to follow the rules of interpretation stated in Beaulac and not to dismiss, even in the presence of imperfect drafting, the Legislature’s broader intent of subjecting municipalities to the language obligations provided for in legislation designed to promote the equality of official languages and official language communities in New Brunswick.
