Writing for a unanimous Court, Justice LeBel held paragraphs 2 and 3 of section 73 of the Quebec Charter of the French Language (provisions dealing with minority language education) as being inconsistent with subsection 23(2) of the Canadian Charter of Rights and Freedoms. However, in attempting to achieve a delicate balance that is arguably necessary when it comes to language and Quebec, the Court also suspended the declaration of unconstitutionality for a full year, resulting in what Peter Hogg calls “Temporary Validity” of the law in question.

When it came to the specific situations of the claimants, the Court issued two different orders to the Ministry of Education despite the one year suspension of unconstitutionality. For one of the claimants, Bindra, the Court ordered that a Certificate of Eligibility for instruction in English be issued. For the other claimant, Nguyen (and the claimant group of 25 that fell within that scope), the Court simply ordered that the files be returned to the Ministry of Education and be reassessed in light of its judgment.

The decision resulted in a heated debate in the Quebec National Assembly during which the leader of the opposition filed a motion to “denounce the decision of the Supreme Court” (« Que l’Assemblée nationale du Québec dénonce la décision rendue ce matin par la Cour suprême du Canada invalidant les dispositions de la loi n° 104. »). Such antics are hardly surprising to anyone who has sat in on a legislative session. On the other end of the spectrum, there was outrage as to why the Court didn’t strike down the laws in a plain vanilla fashion, without a one year suspension. Media coloured the Supreme Court decision with headlines such as “Parents score a win in court – sort of” (The Gazette) and “A qualified win” for minority rights (The National Post). The Ottawa Citizen noted that to regard the case as a rights victory would be an “overstatement” and that the decision will bring to light the “negative impact” Quebec language laws are having on immigrants (“Language Lunacy – Again”).

In light of these criticisms from all sides, it is necessary to return to the underlying constitutional principles and the “reach” of section 23 of the Canadian Charter.

Section 23 of the Canadian Charter enumerates three circumstances which give rise to “Minority Language Educational Rights” (the right to instruction in English in Quebec or instruction in French in the rest of Canada): (i) based on the mother tongue of a parent (s.23(1)(a)); (ii) based on the language of instruction received by a parent in Canada (s.23(1)(b)); and (iii) based on the language of instruction received by one of the children in the family in Canada (s.23(2)). Subsection 23(2) is entitled “Continuity of Language Instruction” and provides:

(2) Citizens of Canada of whom any child has received or is receiving primary or secondary school instruction in English or French in Canada, have the right to have all their children receive primary and secondary school instruction in the same language.

A few important points should be noted regarding section 23:

• Section 23 applies only to “citizens of Canada.” Landed immigrants, permanent residents, and refugee claimants have no right to claim language priority for their children’s education;
• Section 23 confers rights on parents for the education of their children, and not directly on the child;
• Under subsection 23(3), the rights conferred under subsections (1) and (2) take effect only where the number of children who would fall within the scope of those provisions is “sufficient to warrant” public expenditure;
• Finally, paragraph 23(1)(a), or the mother tongue clause (providing that a parent whose “first language learned and still understood” is of a linguistic minority has the right to have their children receive instruction in that language) is inapplicable in the Province of Quebec by virtue of subsection 59(2) of the Constitution Act, 1982.

Given these restrictions on the scope of section 23, the majority of the critics who claim the Court did not go far enough can be addressed. Even though minority language rights are entrenched in the Canadian Charter, the fact that they are the result and the embodiment of political compromise cannot be understated. As Justice LeBel notes at para. 26, a section 23 analysis must take into account “the social, demographic and historical context” as well as a consideration for “the official languages dynamics in each province.” In Quebec, the context includes a recognition of French as “the official language of Quebec” and the protection of the heritage associated with the French language. The Supreme Court had held this to be a “pressing and substantial objective” as early as Ford v. Quebec, [1988] 2 S.C.R. 712. Where section 23 is concerned with protecting official languages in provinces where they are spoken by a minority, in Quebec, the analysis is one of balancing the competing concerns of the francophone and anglophone populations.

Another point to bear in mind is that section 23 of the Canadian Charter does not create an all-out “freedom of choice” as highlighted by the Supreme Court’s decision in Gosselin v. Quebec, [2005] 1 S.C.R. 238. In Gosselin, francophone parents challenged section 73 of the Charter of the French Language as being unconstitutional on the basis of section 23 and section 15 of the Canadian Charter. The Court dismissed all claims, holding on the section 23 issue that the appellants, as members of the francophone majority in Quebec had no right to access to English language instruction for their children.

In the case of the Nguyen claimants (as opposed to Bindra, discussed further below), however, none of this should even be material. The facts clearly indicate a scheme nearing fraud being perpetrated by private institutions on the Government of Quebec. Subsection 73 of the Charter of French Language provides five instances in which children may receive instruction in English. One of these is the case of a child “who has received or is receiving elementary or secondary instruction in English in Canada” (s.73(2), in similar vein to s.23(2) of the Canadian Charter). To meet this requirement, a growing number of “bridging schools” (écoles passerelles) began to prop up, which provided parents the opportunity to qualify under s.73(2):

parents whose children were not entitled to instruction in the minority language were enrolling their children in unsubsidized private schools for short periods so that they would be eligible … to attend publicly funded English schools (at para. 7)

To short-circuit this circumvention, the Quebec National Assembly amended s.73 and added paragraph 2, which reads:

However, instruction in English received in Québec in a private educational institution not accredited for the purposes of subsidies by the child for whom the request is made, or by a brother or sister of the child, shall be disregarded.

Instruction received at unaccredited private eductional institutions would no longer be counted when determining eligibilty for English language instruction. In Nguyen, the Supreme Court simply struck down this paragraph as being too broad. Under the section 1 analysis, the Court clearly upheld the intentions and objective of the legislature. However, the Court held that wholesale disregard for time spent at unaccredited private institutions would undermine the “Genuine Educational Pathway” (Solski v. Quebec, [2005] 1 S.C.R. 201) approach to assessing whether a child qualifies for minority language education.

The Bindra claim was on a different ground. There, the Quebec Government had given one child in a family a special authorization to study in English but then refused to let the other sibling receive publically funded English education, relying on paragraph 3 (enacted along with paragraph 2 in 2002) which reads: “Instruction in English received pursuant to a special authorization under section 81, 85 or 85.1 shall also be disregarded.” Here, the Supreme Court ordered the Ministry of Education to issue a Certificate of Eligibility in English to the other Bindra sibling.

An argument could be made that the Court should have separated the two different paragraphs when deciding on appropriate dispositions. The Court was correct in suspending the unconstitutionality of paragraph 2 and allowing Quebec to rework how it closes the écoles passerelles loophole. However, the Court should have come down hard on paragraph 3 and struck it down with immediate effect. Once the Ministry gives special authorization to one child in a family to receive instruction in one official language, it does not make sense to deny the same of another child in the family. Such an argument again fails to recognize the delicate political balance that the Court must attain when deciding on language cases in Quebec. Quebec does not have any constitutional obligation to provide special authorization for English education under section 81, 85, or 85.1. Striking down the law without an opportunity for dialogue could result in a chilling effect on granting such special authorizations.

The Government of Quebec provides possibly the most extensive services to its linguistic minority (the anglophones) of all the provinces of Canada. Nguyen v. Quebec represents a reasoned and wise response by the Supreme Court of Canada to an overbroad law that was the result of a legitimate concern. Providing the legislature with a one year period to rework the law—and to ensure that a balance is met between the protection of French cultural heritage and the provision of English language instruction to legitimate claimants—is an appropriate remedy, given the subtle and intricate task demanded of the Court.

In an emailed press release sent to TheCourt.ca, Mr. Godin is quoted as predicting that the bill will be passed. He explained that the bill “has received unprecedented support from a wide range of Anglophones and Francophones, because they understand that it could be detrimental for a Supreme Court justice to be unilingual.” The press release went on to clarify that rather than being drafted in one language and translated to the other, Canadian statutes are drafted independently in English and French. This means that in order to understand the subtleties of the law, justices must understand both languages.

Mr. Godin also said that “the interpretation of the law must never depend on simultaneous interpretation, although I have the utmost respect for the work of interpreters. The parties’ right to a fair trial is at stake. Simultaneous interpretation and translation are not sufficient for judges since the resulting meaning is often different from the original … [f]or years the government has refused to make language skills a criterion for the appointment of Supreme Court justices. The government is out of touch with people and their needs and this must be corrected. New Democrats insists that all parties must be able to be heard in conditions that do not put them at a disadvantage in relation to their adversary.” Mr. Godin concluded by encouraging all MPs and the public to support his bill.

Mr. Godin expressed these views during last Monday’s House of Commons debate over Bill C-232, placing particular emphasis on the potential injustices that could occur simply because one was not properly understood during their trial. But while several members commended the tabling of Bill C-232, some members voiced their disagreement with the proposed bill. Conservative Party member Steven Blaney (Levis-Bellechasse) noted that the appointment process already recognizes Canadian diversity; the Supreme Court Act requires that at least three of the SCC’s judges must be from Quebec, effectively recognizing Quebec’s civil law tradition, and the SCC selections are based on the recognition of legal pluralism and regional diversity. Also, due to the availability of legal proceedings in both official languages and the fact that our national institutions are bilingual without requiring every individual to be bilingual, the Supreme Court is a “model of institutional bilingualism” (1120).

Conservative Mike Allen (Tobique-Mactaquac) echoed Mr. Blaney’s argument that the Supreme Court already demonstrates bilingualism by providing all its services in both languages and allowing parties to use either language in written and oral proceedings. He added that all but one of the current SCC judges are able to hear cases in either official language without the aid of an interpreter; as well, high-quality interpretation and translation services are available during the court’s hearings, and ongoing language training is available to the members of the court. Like Mr. Blaney, Mr. Allen also noted that the Act requires at least three SCC judges from Quebec, honouring the country’s bi-juridical nature, and that the court must demonstrate a broader legal pluralism by ensuring that its judges are drawn from all regions of Canada.

These Conservative critiques did indicate the importance of maintaining competence in both official languages, but de-emphasized the primacy placed upon bilingualism to the perceived detriment of pluralism. Whether this opposition will be strong enough to defeat the bill is a matter that will be watched closely by TheCourt.ca in the coming weeks. Given that 2009 is the 40th anniversary of the Official Languages Act, the renewal of this debate could not have come at a better time.

Facts

Industry Canada has economic development plans for Ontario’s rural areas which are implemented by community future development corporations (“CFDCs”). The North Simcoe CFDC facilitates economic development by providing various services, including the provision of capital, advice, and strategic plans for the community.

Raymond DesRochers was the Executive Director of Corporation de développement économique communautaire CALDECH (“CALDECH”). This organization was created by the Francophone community in Huronia to address the shortcomings in economic development services provided to the French-speaking population of Huronia by the North Simcoe CFDC.

CALDECH received no funding from the CFDC, and had to find its funding from other governmental sources.

Procedural History

In 2000, CALDECH filed a complaint with the Commissioner of Official Languages in Canada (“Commissioner”), alleging that North Simcoe did not provide its services in French. The resultant report found that Industry Canada had breached its duties under the OLA. The report further recommended that services provided by North Simcoe to the francophone community be equal in quality to those provided to the Anglophone community.

Despite attempts by North Simcoe CFDC to resolve the issues pointed out in the report, the Commissioner found in subsequent reports in 2003 and 2004 that the OLA still had not been fully complied with.

The shortcomings were brought to the attention of the Federal Court by way of s. 77(1) of the OLA. Mr. DesRochers and CALDECH mainly sought an order forcing compliance with the OLA and the Charter, as well as permanent and stable funding for CALDECH.

CALDECH lost at the Federal Court because the judge held that the initial corrective measures taken by Industry Canada were sufficient to comply with the OLA.

The Federal Court of Appeal overturned the lower decision, holding that the correct timeframe to consider was the time before the initial complaint. This meant that the corrective measures taken by Industry Canada after the initial Commissioner report were not to be considered in whether there was a breach of the OLA. Nevertheless, because appropriate remedial measures had already been taken, no remedy other than costs was appropriate.

The Official Languages Act

The SCC deals only with Part IV of the OLA. In that part, the court mainly examines s. 22, which states,

22. Every federal institution has the duty to ensure that any member of the public can communicate with and obtain available services from its head or central office in either official language, and has the same duty with respect to any of its other offices or facilities
(a) within the National Capital Region; or
(b) in Canada or elsewhere, where there is significant demand for communications with and services from that office or facility in that language.

The court also noted that s. 22 is to be assessed in light of the purpose of the OLA, which is stated in s. 2:

2. The purpose of this Act is to
(a) ensure respect for English and French as the official languages of Canada and ensure equality of status and equal rights and privileges as to their use in all federal institutions, in particular with respect to their use in parliamentary proceedings, in legislative and other instruments, in the administration of justice, in communicating with or providing services to the public and in carrying out the work of federal institutions; (emphasis theirs, para. 41)

Analysis

Since there was no dispute that Huronia was a region with “significant demand” for communications and services in the French language, the court described its task as “essentially … conduct[ing] a comparative analysis in order to determine whether the services provided by the federal institution in each official language community are of equal quality.” (para. 23)

In espousing the definition of “equal quality”, the court first noted that substantive equality, not formal equality, was the norm (para. 31). Then, it rejected Industry Canada’s narrow view that the government only has an obligation to change its method of providing the service, but not the content itself (para. 48). At para. 51, Charron J., for a unanimous court, wrote,

“it is not entirely accurate to say that linguistic equality in the provision of services cannot include access to services with distinct content. Depending on the nature of the service in question, it is possible that substantive equality will not result from the development and implementation of identical services for each language community. The content of the principle of linguistic equality in government services is not necessarily uniform. It must be defined in light of the nature and purpose of the service in question.” (emphasis theirs, para. 51)

In the case at bar, the court noted that the need for distinct content was especially poignant in achieving substantive equality. This is because Industry Canada described its economic development program as being particularly adaptive to the communities in which they are to operate (para. 52). Specifically, the court writes at para. 54,

“What matters is that the services provided be of equal quality in both languages. The analysis is necessarily comparative. Thus, insofar as North Simcoe, in accordance with the programs’ objectives, made efforts to reach the linguistic majority community and involve that community in program development and implementation, it had a duty to do the same for the linguistic minority community.”

Charron J. then put some limits on the scope of the obligations. She made it clear to clearly demarcate the line between the content of the programs under scrutiny, and the results of the program. At paras. 55-56, she states that (1) the OLA does not require any minimum quality level, and (2) different results for the different linguistic communities do not necessarily indicate that the obligations of the OLA have been violated.

In this case, the court determined that “the apparent disparity in results between the two language communities does not support a conclusion that the services were of unequal quality” (para. 62). As such, the court concludes that the deficiencies complained of by CALDECH do not relate “to the principle of linguistic equality in communications and the provision of services as implemented in Part IV of the OLA.” (para. 63)

Comment

This case will likely have an impact on many Francophone minority communities across the country. The extent of this impact, however, is unclear.

Although the SCC has indicated that the content of programs can be adapted to achieve linguistic equality, the reach of such adaptation is restricted because it needs to be “defined in light of the nature and purpose of the service in question.” (para. 51)

In Desrochers, Industry Canada had a clear service objective that required catering to local community priorities. However, other federal services may have narrower mandates which do not facilitate such a broad requirement of catering to community needs. As such, it may well be the case that absent such a broad requirement, the “distinct content” mentioned here may never materialize.

We can all attest to it: even people who share a language occasionally have difficulty understanding each other. Languages are alive. They are characterized by nuances and subtleties which vary, namely, according to cultural references and speakers’ intentions.

However, while we cannot aspire to fully understanding others, why not strive to do so, to reduce the gap separating people by using language, to improve understanding, to succeed in formulating informed opinions as much as possible?

Before a person is appointed as a judge, consideration is given to a host of factors linked to that person’s competency, professional experience and personal qualities. While we see in-depth knowledge of the law as fundamental prior to taking up these duties, so too are language skills. We will explain that below.

First of all, bear in mind that the laws of Canada are not written in one language and subsequently translated. They are drafted in parallel, in both official languages, and neither version takes precedence over the other. The Official Languages Act (1985, c. 31 (4th Supp.) and the Canadian Charter of Rights and Freedoms are in place to preserve this historic accomplishment.

The Official Languages Act states that:

Both versions simultaneous and equally authoritative
13. Any journal, record, Act of Parliament, instrument, document, rule, order, regulation, treaty, convention, agreement, notice, advertisement or other matter referred to in this Part that is made, enacted printed, published or tabled in both official languages shall be made, enacted, printed, published or tabled simultaneously in both languages, and both language versions are equally authoritative.

The Canadian Charter of Rights and Freedoms reads as follows:

Parliamentary statutes and records
18. (1) The statutes, records and journals of Parliament shall be printed and published in English and French and both language versions are equally authoritative.

Consequently, Canadian law is made up of two languages that are interwoven, inextricably linked. If a judge does not recognize that neither the English nor the French version of the law takes precedence over the other, and that the two are one, how can that judge fully enforce the law? How can that judge understand the law, without understanding it as it is? The judge will no longer embody impartiality, and rights will be threatened.

Based on this principle, language is a qualification like all others required to be a judge. The aspiring judge should focus his or her training accordingly. Simultaneous interpretation and translation are not enough: they are the result of an interpretation which often tends to stray from the original meaning.

The Supreme Court is the last legal resort, and it is imperative for judges to understand the subtleties of the law in both official languages, as well as the parties involved in proceedings, without the assistance of an interpreter so as to avoid being prejudicial.

To this end, in May 2008, Liberal Member of Parliament Denis Coderre tabled Bill C-548 which “amends the Official Languages Act to extend the duty to understand the official languages to the judges of the Supreme Court of Canada.”

While it extends the duty to understand to the judges of the Supreme Court, the wording nevertheless clearly indicates that the said amendment to the OLA will not guarantee that the nine Supreme Court judges will be able to hear a case without the assistance of an interpreter. In fact, the Supreme Court does not always sit with a complement of nine judges: it may sit with a complement of 5, 7 or 9. Therefore, instead of strengthening a bilingual legal system, Bill C-548 would open to door to the appointment of four unilingual judges. (At present, the Court comprises seven bilingual judges and one unilingual one. Another is in the process of being appointed.)

The proposed amendment to the Official Languages Act (OLA) in Bill C-548:

16. (1) Every federal court, other than (replaced by “including”) the Supreme Court of Canada, has the duty to ensure that:

(a) if English is the language chosen by the parties for proceedings conducted before it in any particular case, every judge or other officer who hears those proceedings is able to understand English without the assistance of an interpreter; (b) if French is the language chosen by the parties for proceedings conducted before it in any particular case, every judge or other officer who hears those proceedings is able to understand French without the assistance of an interpreter; and (c) if both English and French are the languages chosen by the parties for proceedings conducted before it in any particular case, every judge or other officer who hears those proceedings is able to understand both languages without the assistance of an interpreter.

To remedy this situation, in July 2008, New Democratic Member of Parliament Yvon Godin tabled Bill C-559 which “amends the Supreme Court Act and introduces a new requirement for judges appointed to the Supreme Court to understand English and French without the assistance of an interpreter.”

Proposed amendment to the Supreme Court Act in Bill C-559:

1. Section 5 of the Supreme Court Act is renumbered as subsection 5(1) and is amended by adding the following:

(2) In addition, any person referred to in subsection (1) may be appointed a judge who understands French and English without the assistance of an interpreter.

This amendment, without disrupting the current system, will make it possible in the long term to eliminate appointments that are contrary to the Act and the Charter. In so doing, we will better ensure respect for equality of authoritativeness as well as the vitality of linguistic communities.

The simplest and most obvious con is that a requirement of bilingualism restricts judicial selection for the Supreme Court. Let’s be honest here: when we express concern about monolingual judges, we’re really expressing concern about monolingual anglophone judges. (Monolingual francophone judges are few and far between for reasons that should be fairly obvious, not the least of which is that there is far less opportunity to practice as a monolingual francophone judge in Canada than there is to practice as a monolingual anglophone.)

Mr. Coderre’s bill would have rendered Justice Marshall Rothstein ineligible to serve as on the Supreme Court, as well as his predecessor, John Major, had it been introduced and passed in earlier years. The fact that both Justice Rothstein and Justice Major are representatives of the Western provinces to the Supreme Court should not be overlooked; the western half of Canada is almost entirely anglophonic. A bilingualism requirement would vastly shrink the pool of available jurisprudential talent from the Western provinces.

Consider also the Maritime provinces. The vast majority of bilingual legal practitioners in the Maritimes work and reside in New Brunswick, and this is one of the reasons a great majority of Maritime representatives to the Supreme Court have been from New Brunswick (all but three of them). One of the leading contenders for Justice Michel Bastarache’s emerging empty seat is Justice Derek Green of the Newfoundland Supreme Court – but Justice Green is not bilingual. Newfoundland has never had a representative sit upon the Supreme Court, and with no widespread tradition of bilingualism within its courts, it would likely continue to wait a long time should Mr. Coderre’s bill become law. (Prince Edward Island faces much the same problem, with an almost entirely monolingual judicial tradition, although it has had one representative to the Supreme Court: Sir Louis Davies back in the first quarter of the 20th century.) A requirement for bilingualism would vastly reduce the amount of judicial talent available for consideration, and the distribution of that remaining talent would mean a continuation of New Brunswick’s domination of the Maritime seat on the Supreme Court, with the occasional representative from Nova Scotia for variety.

It is worth remembering that judicial convention allots three of the nine seats on the Supreme Court to Quebec, and another three to Ontario (where bilingual legal practitioners are relatively common, and the pool of talented bilingual lawyers and judges is deep). These conventions exist to protect and glorify regional diversity, and part of that regional diversity is language. Is the convention not enough to protect our French speaking minority? After all, we don’t require Members of Parliament or even the Prime Minister to be bilingual (although, in practice, the Prime Minister is just about always going to be bilingual).

Should we sacrifice legal talent in favour of bilingualism – an issue that, while certainly important, is obviously constrained to a minority of cases and which can be dealt with through the Supreme Court’s staff of expert translators? Justices Major and Rothstein are proof enough that monolingual Anglophones can be productive members of the Supreme Court. (Indeed, Justice Rothstein seemed to have no problem sitting in decision upon the two most recent decisions of the Supreme Court involving linguistic conflict – Montréal (City) v. Quebec (Commission des droits de la personne et des droits de la jeunesse), 2008 SCC 48 and R. v. S.A.C., 2008 SCC 47.) Bilingualism is a fine policy to pursue, and one of our country’s unique legal aspects. That does not mean it should be a mandatory requirement; in this instance, we need not sacrifice practicality on the altar of idealism.

Similarly, in S.A.C., Deschamps J. contrasted the English word “history” and the French word “après” in their respective versions of s. 39(1)(c) of the Youth and Criminal Justice Act 2002. c. 1 (YCJA). She found that while “history” was amenable to either a broad or narrow interpretation of criminal convictions, “après” connoted the latter; it stipulated only the inclusion of those convictions entered prior to the offence under consideration.

On the other hand, Deschamps J. explained, the use of the English word “pattern” is narrower then “plusieurs,” its French counterpart in s. 39(1)(c) of the YCJA. Unlike “plusiers”, “pattern” does not imply a specific threshold number of offences, but rather creates a need for courts to discern the existence of past behaviour that is indicative of an escalation in criminality. As such, to demonstrate a “pattern” within the meaning of s. 39(1)(c) of the YCJA, the Crown (Deschamps J. found) must adduce evidence of at least three prior findings of guilt, (or alternatively two that are sufficiently similar to disclose a “pattern”). By considering both “après” and “pattern”, Deschamps J. was able to glean from the “shared meaning” of s. 39(1)(c) of the YCJA, an interpretation that “comports with Parliament’s intent to reduce the youth incarceration rate, and is also clearly more favourable to the accused whose liberty is at stake.”

Inasmuch as they illustrate the usefulness of cross referencing statutes in each official language, Montréal and S.A.C. are arguments in favour of mandating bilingualism in the Supreme Court of Canada. At bottom, those without a strong command of both official languages, (yours truly included), are not as well positioned to engage in effective statutory interpretation; their arsenal of legal arguments lacks a technique that has quite clearly established itself as a mainstay in Canadian jurisprudence.

For proponents of mandatory bilingualism in the Supreme Court, the timing of Montréal and S.A.C. could not have been better. The two decision come on the heels of Liberal and NDP bills advocating an increased level of bilingualism in the Supreme Court.

The Liberal bill, tabled by MP Dennis Corderre, Bill C-548, “An Act to amend the Official Languages Act (understanding the official languages — judges of the Supreme Court of Canada)”, received first reading on May 15, 2008. Bill C-548 proposes to amend s. 16 of the Official Languages Act R.S.C. 1985 c. 31. Section 16 of the Act establishes an obligation on the part of federal courts (with the notable exception of the Supreme Court) to ensure that all judges who hear proceedings are able to do so in either official language, as requested, without the support of an interpreter. Mr. Corderre’s bill proposes to expressly include (instead of expressly exclude) the Supreme Court as a party to this obligation.

The Liberal Bill was recently criticized by NDP Critic for Official Languages and MP Yvon Godin. Ìn Mr. Godin`s view, “the Liberals’ proposed amendment to the Official Languages Act would not guarantee that the nine Supreme Court judges could hear a case without an interpreter and would allow for the appointment of four unilingual judges.” I am not entirely certain of the legitimacy of Mr. Godin’s criticism, (it is arguable that Mr. Corderre’s bill would in fact necessitate that all judges are in fact bilingual).

At any rate, Mr. Godin tabled a Bill C-559, “An Act to amend the Supreme Court Act (understanding the official languages)”, which received first reading on June 5, 2008. Mr. Godin’s Bill proposes to amend s. 5 of the Supreme Court Act R.S.C. 1985 c. S-26 to make it a requirement for judges appointed to the Supreme Court to understand both official languages without the aid of a interpreter.

With respect to the next Supreme Court appointment, whether or not either of the above bills pass, it will most likely be a moot point. Given the political pressure being placed on the Harper government from both the Liberals and the NDP, it seems likely that the Supreme Court of Canada Appointments Advisory Committee will, for reasons of political expediency, produce a list of exclusively bilingual Supreme Court nominees. That said, making bilingualism mandatory in the Supreme Court would help to ensure a court that is able to engage in effective statutory interpretation.

Quebec v. Nguyen concerns the constitutionality of one aspect of Quebec’s unique system of certificates of eligibility to receive subsidized instruction in English, established by the Charter of the French Language, R.S.Q. c. C-11 (“CFL”).

In 2002, An Act to Amend the Charter of the French Language, S.Q., 2002, c. 28 (“Bill 104”) came into force and added what is now the first sentence of the penultimate paragraph of section 73 of the CFL. This sentence provides that instruction received in a private unsubsidized English school in Quebec is to be disregarded in the determination of eligibility for public instruction in English in that province.

The purpose of Bill 104, according to the Parti Québécois government of the time, was to address the problem of so-called “springboard” schools, a perceived loophole in the CFL that allowed an Allophone or Francophone child to attend a non-subsidized English-language elementary school for a year or less and then receive a certificate of eligibility for English language education in any school. These schools marketed themselves as a way for parents to obtain a certificate of eligibility for subsidized instruction in English by having their children spend little time receiving unsubsidized English education. These “springboard” schools were characterized by large first grade classes and very small second grade classes.

A number of parents, Hong Ha Nguyen et al., alleged that Bill 104 is inconsistent with section 23 of the Canadian Charter of Rights and Freedoms (“Charter”), and that this infringement does not constitute a reasonable limit as can be demonstrably justified in a free and democratic society.

The constitutional challenge was rejected by the Quebec Administrative Tribunal (SAS-M-079528-0210) and by the Superior Court of Quebec ([2004] Q.J. No. 9812).

In a judgment released in August 2007, the Court of Appeal for Quebec declared that the impugned sentence of section 73 of the CFL is unconstitutional (2007 QCCA 1111). The Honourable Justices Hilton and Dalphond each penned separate reasons in support of this result, the Honourable Mr. Justice Giroux dissenting. The Court of Appeal gave immediate effect to the declaration of unconstitutionality but a week later, the rota judge of the Court of Appeal stayed the declaration of unconstitutionality, pending the Supreme Court of Canada’s final determination of the case (2007 QCCA 1136).

To some, this appeal can be characterized as one regarding “access” to English language instruction. Bill 104 has the effect of indiscriminately barring entitlement to English language instruction out of public funds based on an impermissible consideration, namely whether instruction was received in unsubsidized private schools. Under Bill 104, such instruction is to be mathematically “disregarded”. The Supreme Court of Canada has already concluded that a strict mathematical approach is inconsistent with subsection 23(2) of the Charter: Solski (Tutor of) v. Quebec (Attorney General), [2005] 1 S.C.R. 201. Bill 104 calls on administrators and courts to ignore otherwise legitimate linkages between a family and Quebec’s English-speaking minority communities for the sole reason that these linkages were developed through the unsubsidized private educational system. One is not a less legitimate member of Quebec’s English-speaking minority because one was educated in such a system. Bill 104 represents an arbitrary norm grossly inconsistent with section 23 of the Charter.

Yet this appeal may have significant institutional ramifications. Quebec’s minority English-speaking communities enjoy a relatively well developed institutional network, with reasonably good access to a network of schools, health care and social services, media and cultural bodies. The network of English language private schools in Quebec constitutes an important link in the institutional framework required for the protection and flourishing of the province’s English language minority communities. Bill 104 needlessly jeopardizes the future of Quebec’s English language private schools by cutting off their access to the communities which they serve.

Relatively few students in Quebec were registered in so-called “springboard” schools. In particular, none of the more than twenty members of the Quebec Association of Independent Schools (“QAIS”) had large first grade classes and very small second grade classes. QAIS member schools have never marketed themselves as “springboard” schools. Bill 104 has meant that parents who wanted to receive English instruction at QAIS member schools could no longer expect their children to receive a certificate of eligibility on the basis of the child’s attendance at a QAIS member primary school. Enrollment in QAIS member schools has been declining as a result of Bill 104 and the future of some of these institutions is threatened.

While Bill 104 was being studied by the National Assembly, the QAIS appeared before one of its committees. The QAIS pointed out that Bill 104 was overly broad. The QAIS indicated to the drafters that it was possible for the Quebec Government to prevent Allophone or Francophone children from obtaining a certificate of eligibility after having received a year or less of instruction in a non-subsidized English-language elementary school without threatening Quebec’s network of English-language private schools. Unfortunately, the Quebec Government of the time never seriously considered this compromise solution.

The bottom line is that by severely limiting access to English-language schools – even barring Anglophones from accessing English-language schools – Bill 104 is having a significant impact on the Anglophone minority and on member schools of the QAIS, in some cases threatening their continued existence.

The Attorney General of Quebec has not met its burden of demonstrating that the means chosen, namely a complete and total disregard of any instruction in English received in Quebec in a private unsubsidized educational institution, is reasonable and demonstrably justified. The National Assembly has resorted to a drastic measure in order to stamp out a very minor problem. Bill 104 does not strike any reasonable or justifiable balance between the interests of the majority and those of the province’s English-speaking minority communities.

Note: Ronald F. Caza and Mark C. Power act for the Quebec Association of Independent Schools, an intervener in the Court of Appeal for Quebec.

20. (2) Any member of the public in New Brunswick has the right to communicate with, and to receive available services from, any office of an institution of the legislature or government of New Brunswick in English or French.

The Societe des Acadiens et Acadiennes du Nouveau-Brunswick were joined in Ms. Paulin’s action at the Federal Court, where they argued that the New Brunswick RCMP were subject to the language obligations imposed on the province in this Charter section. The RCMP responded that s. 20(2) was not applicable because it is a federal institution, and the section at issue only applied to New Brunswick institutions.

The Federal Court agreed with the appellants, holding that the RCMP was an institution of the New Brunswick government for the purposes of s. 20(2), as it functioned as a provincial police force. However, the Federal Court of Appeal set aside this judgment on the basis that the RCMP could not assume the province’s constitutional language obligations. Richard C.J. of the FCA held that only the province is responsible for discharging the language obligations under this section; as such, the proceedings should have been brought against the province alone, at the New Brunswick Court of Queen’s Bench.

When this case was about to be heard by the Supreme Court of Canada, Matthew and Jakki took the opportunity to voice their divergent opinions on the FCA’s holding. Matthew argued against the FCA’s findings, and his reasons can be found here. He thought that the decision effectively permitted the federal government to contract with provinces, perform services that fell short of Charter requirements, and then escape liability due to the provincial source of its jurisdiction. Conversely, Jakki advocated for the holding at the FCA in this post, arguing that the party owing to the contractual obligation was the province, as principal, rather than the RCMP as agent. In her view, and in the opinion of the FCA, it was the responsibility of the principal to ensure that its constitutional obligations were addressed. On Friday, the SCC weighed in, and allowed the appeal on grounds that echo Matthew’s critique.

The question before the SCC in Societe des acadiens et acadiennes du Nouveau-Brunswick Inc. v. Canada, 2008 SCC 15 was whether, by contracting with the province to provide police services, the federal RCMP was bound by the rules respecting language in New Brunswick, or was required to meet only the federal official languages standards. The appellants’ position was that since the RCMP had taken the responsibility for a function of the New Brunswick government, it must have assumed the same obligations as the province. These obligations include those elaborated under s. 20(2) of the Charter. Conversely, the respondent relied on the principle of constitutional accountability, arguing that New Brunswick was constitutionally responsible for the administration of justice. The province cannot evade its constitutional obligations by alleging that its delegate, the RCMP, has assumed them; this would essentially render the RCMP both a federal and provincial institution. Rather, the respondent argued that the constitutional obligations of the RCMP are federal. Additional obligations can only be contractual, and the agreement with New Brunswick in this regard included no specific language obligations for the RCMP to uphold.

The SCC’s decision, delivered by the soon-to-be-retired Bastarache J., first inquired into the institutional obligations of the RCMP. Section 20(1) of the Royal Canadian Mounted Police Act authorizes the RCMP to enter into agreements with the provinces and enforce their laws. Bastarache J. noted that provincial laws should also be enforced in a manner consistent with the Constitution, and that this does not complicate the fact that the RCMP is a federal institution.

Correlatively, section 2(2) of the Police Act provides that each RCMP member is authorized by the New Brunswick legislature to administer justice in that province. Bastarache J. clarified that each member must also comply with s. 20(2) of the Charter, since the RCMP’s administration of justice performs the role of an enumerated “institution of the legislature or government” of New Brunswick. This means that while New Brunswick remains responsible for administering justice in accordance with its s. 20(2) language obligations, the RCMP may still have its own language requirements to meet in fulfilling its New Brunswick mandate.

These language requirements were not extinguished by the agreement between the province and the RCMP. The SCC examined the content of the agreement and noted that the question on appeal was actually tied to the provincial government’s Minister of Justice. In article 3.3 of the agreement, this Minister was responsible for setting “the objectives, priorities and goals of the Provincial Police Service.” Accordingly, Bastarache J. found that the institution in question on the appeal was an institution of the New Brunswick government, as the Minister of Justice discharged the province’s constitutional obligations through the RCMP members being designated as New Brunswick peace officers. Due to this arrangement, Bastarache J. concluded that the provision of police services by the RCMP must be consistent with the obligations of the province arising under s. 20(2) of the Charter.

The SCC then cast their net more broadly, examining the RCMP’s general government functions that are subject to constitutional obligations, and how these functions operate in the context of this appeal. According to Lamer J. (as he then was) in Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038, and Peter Hogg in The Constitutional Law in Canada, a legislature that delegates a power of compulsion to a body or person then transfers its Charter duties to the delegate as well. As the trial judge found that the ticketing RCMP officer, acting under the Motor Vehicle Act, was performing a government function of the province, it became clear to the SCC that the RCMP adopted the Charter duties of the province in its functions. In New Brunswick, these duties include the provision of services in either English or French, under s. 20(2). Again, the SCC’s analysis belied a Charter obligation on behalf of the RCMP.

Finally, the SCC addressed the Federal Court of Appeal’s analysis that the RCMP’s obligations were contractual, not constitutional. These obligations, according to Bastarache J., are not mutually exclusive. Article 2.2 of the agreement specified that the RCMP, as the provincial police service, shall perform the duties of police officers and render services that are necessary to perform all duties and services in relation thereto, under the laws of Canada or the province. Similarly, article 4.1 was explicit in requiring that the Commanding Officer act under the direction of the Minister in aiding the administration of justice in the province, carrying into effect the laws in force therein. From the language of these articles, the SCC concluded that the parties intended that the RCMP’s mandate in the province include the language duties in relation to s. 20(2), providing citizens with bilingual service. As bilingualism is a constitutional requirement, the SCC saw no need to expressly provide for the duty in the agreement, countering the respondent’s argument that such obligations would have to be set out in the contract.

Ultimately, the SCC allowed the appeal and declared that s. 20(2) of the Charter required the RCMP to provide services in both official languages when acting as a provincial police force, pursuant to their agreement with the New Brunswick government. Matthew’s concern that the federal government could appeal to provincial jurisdiction when breaching Charter language rights was clearly shared by the SCC. In thwarting this possibility, the SCC has made a definitive statement on the role of federal institutions in provincial capacities, as well as solidifying the Charter’s protection of New Brunswick bilingualism.

Facts

Mr. Knopf is a lawyer in Ottawa with expertise in copyright reform, World Intellectual Property Organization treaty ratification, and private copying. His popular blog can be found here. Prior to his appearance before the House of Commons Standing Committee on Canadian Heritage, he sent documents to the Committee clerk, which he requested to be copied and distributed to the members. In accordance with Committee rules of procedures, however, the documents were not distributed because they were only in English.

The especially poignant provisions of law (though not all) are as follows:

S. 133 of the Constitution Act, 1867:

133. Either the English or the French Language may be used by any Person in the Debates of the Houses of the Parliament of Canada and of the Houses of the Legislature of Quebec; and both those Languages shall be used in the respective Records and Journals of those Houses; and either of those Languages may be used by any Person or in any Pleading or Process in or issuing from any Court of Canada established under this Act, and in or from all or any of the Courts of Quebec.

The Acts of the Parliament of Canada and of the Legislature of Quebec shall be printed and published in both those Languages.

S. 17(1) of the Charter:

17. (1) Everyone has the right to use English or French in any debates and other proceedings of Parliament.

S. 4(1) of the Official Languages Act, R.S.C. 1985, c. 31 (4th supp.) [OLA],

4. (1) English and French are the official languages of Parliament, and everyone has the right to use either of those languages in any debates and other proceedings of Parliament.

History

Appealing from a dismissal of a complaint to the Commissioner of Official Languages, the Federal Court decided against Mr. Knopf. Justice Layden-Stevenson decided that s. 4(1) of the OLA did not encompass the right to distribute documents in the language of the addressee’s choice. Rather, it was a “a challenge to the procedure adopted by the Committee regarding the distribution of documents…., and not … a language rights issue” (para. 39). S. 133 of the Constitution Act was also found to be satisfied by Mr. Knopf’s ability to orally address the committee in his language of choice.

Federal Court of Appeal

In also dismissing his appeal, Trudel J.A. distinguished prior distribution from complete preclusion of the committee’s attention. She noted that the committee had access to his documents during the oral hearing, and pointed to the committee policy which stated that it only “educates itself in both official languages.”

She also rejected Mr. Knopf’s argument that the trial court limited the applicability of s. 4(1) of the OLA to speech in front of parliamentary committees. Starting at para. 32, she writes,

The first judgment and the authorities cited by the applications judge do not suggest such a restriction….

Justice Layden-Stevenson does not restrict the word “speak” to oral speech. Rather, she states that subsection 4(1) of the Act provides the appellant with a right to address the House in the language of his choice. She is of the opinion that the appellant’s request that his documents be circulated does not fall within the parameters of subsection 4(1) of the Act.

And at para. 42, Trudel J.A. concludes,

The right to use an official language of choice does not include the right to impose upon the Committee the immediate distribution and reading of documents filed to support one’s testimony. The decision on how and when to treat the information received from a witness clearly belongs to the Committee. I find, therefore, that the appellant’s language rights were not infringed upon.

Comment

In refusing this case, the SCC effectively leaves a hole that continues to allow parliamentary committees to not distribute documents because they have not been translated. While the Federal Court of Appeal’s decision left room for language rights to subsist in non-oral addressing of committee members, the free standing ability of committees to set their own policies may continue to lead to less-informed committee members.

As the situation stands, individuals appearing before committee members still need to translate all the documents they submit before they will be distributed. This adds additional costs in time and money, and may lead to a possibility that translation may not be done, and documents not distributed. In turn, this may result in a weaker ability for the committee to grasp the oral presentation of the individual.

Interestingly, the Federal Court of Appeal chose not to deal with the issue of parliamentary privilege, and felt that the case could be dealt with on the basis of the scope of language rights alone.

For further commentary, see Mr. Knopf’s own comments at the time of the Court of Appeal hearing.