4. Language Rights and Service to the Public
Page 11 of 22
Section 20 of the Canadian Charter of Rights and Freedoms (Charter) grants two fundamental rights to members of the public: the right to receive services from and communicate with federal institutions and the institutions of New Brunswick in either official language. While the obligation imposed on New Brunswick applies to all of the province’s institutions, wherever they may be, the obligation on federal institutions depends on certain criteria: the communication or service must originate from the head or central office of the institution concerned or any other office located in an area where there is significant demand for the use of English or French, or an office that, because of its nature, is required to provide services in both official languages.
The rights and obligations imposed by the Charter on federal institutions are restated and clarified in Part IV of the Official Languages Act (OLA). This part provides, among other things, that federal institutions must ensure that services offered to the public by third parties, on their behalf, are available in both official languages when the institution itself would be subject to such a requirement. The OLA also requires federal institutions to make an active offer to inform members of the public of the option they have to be served in English or French.
The Official Languages (Communications with and Services to the Public) Regulations specify the situations in which communications and services must be offered in both official languages, dealing in particular with the concepts of “significant demand” and “nature of the office” used in Part IV of the OLA.
The use of a language by government authorities is an important aspect of protecting the vitality of communities speaking that language. Accordingly, in Fédération francoténoise, the Court concluded on the basis of the evidencepresented that the use of a language in the public sphere, in particular in government communications and services, contributes to the legitimacy of that language and encourages its use by members of the language group.79
The principle of active offer is an essential part of the public’s right to communicate with government institutions and receive their services. Under that principle, the institution required to offer its services in both official languages must inform all members of the public of their right to communicate and receive services in the official language of their choice. Although active offer is expressly provided for in some language legislation, 80 it is nevertheless an inherent component of the public’s right to use the official language of its choice in communications with government institutions, since it offers them a real choice between English and French. As it appears from the two judgments handed down in the period covered by this report, the right to be served in the language of one’s choice includes the right to be informed of that choice.81
In ruling on the nature of the obligation of institutions to provide services and communications in both official languages, the courts have adopted the concept of the obligation of result. Under this concept, the standard imposed on institutions is to provide a specific, given result, in other words, a service or communication of equal quality in the official language chosen by the member of the public, and not simply to take reasonable measures to fulfill their obligations.
Several judgments rendered in the period covered by this report considered the public’s right to be served by and communicate with government institutions in the official language of choice. While some dealt with rights conferred by the Charter and federal legislation, others explored the obligations imposed on government institutions at the provincial, territorial and municipal levels.
4.1 Constitutional language obligations applicable to the Royal Canadian Mounted Police when acting as provincial police in New Brunswick
Canada v. Société des Acadiens et Acadiennes du Nouveau-Brunswick Inc.
In Société des Acadiens et Acadiennes,82 the Federal Court and the Federal Court of Appeal ruled on the constitutional language obligations of the Royal Canadian Mounted Police (RCMP) when providing provincial policing services in New Brunswick.
The plaintiff, Ms. Paulin, had filed a complaint with the federal Office of the Commissioner of Official Languages (OCOL) because the RCMP officer from the Woodstock detachment who had stopped her for speeding on the Trans-Canada Highway in New Brunswick was unable to provide her with service in French and did not call for a bilingual colleague. In its investigation report, OCOL concluded that the complaint was justified.
Ms. Paulin subsequently filed an action in the Federal Court pursuant to the Charter. This action concerned the services offered by the RCMP Woodstock detachment on the Trans-Canada Highway in New Brunswick, particularly the obligations provided for in paragraph 6(1)(d) of the Official Languages (Communications with and Services to the Public) Regulations (Regulations). At the same time, the Société des Acadiens et Acadiennes du Nouveau-Brunswick (SAANB) filed a court action against the RCMP arguing that any review of the functions of RCMP positions in New Brunswick to determine their language requirements should take into account the unique characteristics of New Brunswick in matters of language, and in particular section 16.1 and subsections 16(2) and in 20(2) of the Charter. The two cases were joined for hearing.
The plaintiffs argued in court that the provisions of the Charter that are of general application in the territory of New Brunswick, namely section 16.1 and subsections 16(2) and 20(2), as well as the provisions of the New Brunswick Official Languages Act (N.B. OLA), apply to the RCMP, as it is acting on behalf of the province and is therefore required to observe the same constitutional obligations.
In its defence, the RCMP argued that performing policing services in New Brunswick under a contract with the province does not alter its status as a federal institution. Consequently, it maintained that it is subject to the same constitutional and legislative provisions as other federal institutions, whether in New Brunswick or not.
Federal Court judgment
Gauthier J. of the Federal Court first considered the question of whether the RCMP should observe the constitutional language obligations specific to New Brunswick, namely the obligations provided for in subsection 20(2) of the Charter for the province’s institutions. The judge answered this question in the affirmative: in her opinion, although the RCMP is a federal institution, it is subject to the control of the provincial Attorney General or Minister responsible for policing services when it provides provincial policing services under its contract. Furthermore, in issuing a ticket to Ms. Paulin pursuant to the New Brunswick Motor Vehicle Act,83 the RCMP officer was performing a provincial government function. Accordingly, when the RCMP is acting in accordance with provincial legislation, it has to be bound by the specific constitutional obligations of the province provided for in subsection 20(2) of the Charter.
In regards to the second question, whether a federal institution such as the RCMP should take subsection 16.1(1) into account when interpreting the concept of “significant demand” found in paragraph 20(1)(a) of the Charter, in section 22 of the federal OLA and in the Regulations, the judge concluded that it was for the Governor in Council to enact regulations into law that comply with all constitutional language obligations. As long as the Regulations are valid, it is not up to the RCMP to interpret them, but rather enforce them. Given the specificity of the Regulations, the RCMP has no discretion, even though there is nothing to prevent it from going beyond its statutory duties if it deems it appropriate.
As to whether paragraph 6(1)(d) of the Regulations imposed an obligation on the RCMP to provide its services in both official languages throughout the territory served by the Woodstock detachment, the judge did not rule on this point, since evidence was not available at the hearing.
In conclusion, the Court noted that subsection 20(2) of the Charter applied to the provincial policing services offered by the RCMP under its agreement with the province of New Brunswick. The RCMP was given a year to meet the language obligations issuing from this declaration.
The Attorney General of Canada appealed the judgment.
Federal Court of Appeal judgment
In a unanimous ruling,84 the Federal Court of Appeal allowed the appeal and overturned Gauthier J.’s decision.
The primary question before the Court of Appeal was whether the RCMP had a duty to comply with the specific constitutional obligations of the province as set forth in sections 16.1 and subsections 16(2) and 20(2) of the Charter. From the outset, the Federal Court of Appeal noted that this question dealt with the accountability of a third party, in this case the RCMP, for compliance with language obligations imposed by the Charter on its principal, specifically the Government of New Brunswick.
The Court of Appeal unanimously answered this question in the negative. Essentially, it accepted the position of the appellant Attorney General of Canada, who argued that the constitutional language obligations in subsection 20(2) of the Charter applied only to the province of New Brunswick. Consequently, the Court concluded that as a federal institution, the RCMP had to comply with the language obligations imposed on it by the federal OLA and the obligations provided for in subsection 20(1) of the Charter, even when it was acting on behalf of the province.
The Court of Appeal clearly indicated that it is the province that remains responsible for the relevant obligations imposed by subsection 20(2) of the Charter and the N.B. OLA.85 It emphasized the distinction between the linguistic provisions governing the RCMP as a federal institution and the additional language obligations that the province might impose under a service contract.
Thus, the judgment of the Federal Court of Appeal confirmed that as a federal institution, the RCMP must meet the language obligations imposed on it by subsection 20(1) of the Charter, even when acting as a police force for a province that is not subject to constitutional obligations in official language matters. It also confirmed the Federal Court’s decision in the contraventions case,86 holding that the person on whom constitutional obligations are imposed cannot avoid them by delegating them to others.
The secondary question before the Court was to determine whether the Federal Court was the appropriate forum to hear the case. As indicated by the Court of Appeal, the misidentification of the party owing the obligations had led to the misidentification of the Court competent to hear the resulting proceeding. As the case had to do with constitutional language obligations in New Brunswick, the Court of Appeal found that the Court of Queen’s Bench of that province should actually have heard the case.
The Supreme Court of Canada has agreed to hear the appeal of this judgment.
