Lost in Translation: Language Rights in Federal Courts
As the two official languages of Canada, French and English form the bedrock of our legal system, and their usage is a constitutionally protected right found in both the Constitution Act, 1867 (“Constitution”) and the Canadian Charter of Rights and Freedoms (“Charter”). With such a high level of recognition and protection, one might assume the right to speak in either language before any of the federal courts in the nation as a given. Yet at a recent hearing of the Tax Court of Canada (“TCC”), the judge asked all participants to speak in English, despite the fact that several witnesses and counsel for one of the parties had asked to speak in French. In Mazraani v Industrial Alliance Insurance and Financial Services Inc, 2018 SCC 50 [Mazraani] the Supreme Court of Canada (“SCC”) reviewed this decision of the TCC and reiterated the importance of language rights and the judge’s duties to uphold them.
In 2012, Kassem Mazraani worked as an insurance representative for Industrial Alliance Insurance and Financial Services Inc. (“Industrial”). Following the termination of his contract, which stipulated that he was “self-employed,” Mazraani asked the Canadian Employment Insurance Commission (“Commission”) to consider his employment with Industrial to be insurable so that he could obtain employment insurance benefits. The Commission concluded that the employment had not be insurable and Mazraani appealed the decision to the Canada Revenue Agency (“CRA”), which upheld it. He then took the case to the TCC as a self-represented litigant.
The TCC Proceedings
Initially, Mazraani and the Minister of National Revenue (“MNR”) were the only parties. Industrial, who employed around 400 representatives under the same contract as Mr. Mazraani, was granted later intervener status since the proceedings would call into question its business model.
There are procedures for giving the TTC advance notice of the official language in which a party’s witnesses will be speaking and request the court to make available an interpreter if necessary. However, Mazraani’s proceedings were conducted informally according to the Tax Court Act, RSC 1985, c T-2, which provides that certain appeals to the TCC shall be dealt “as informally and expeditiously as the circumstances and considerations of fairness permit” (ss 18.15 and 18.29(1)(b)). The TCC’s rules of procedure do not specify mechanisms for language choices or accommodations for such informal proceedings.
This procedural gap caused problems from the start: no parties gave the court advance notice of official language choices; the judge commenced the hearing in English and asked witnesses and counsel, many of whom were more comfortable communicating in French, to try their best to proceed in English; and no interpreters were provided. When the proceedings commenced, Mazraani indicated that he had trouble understanding French, but the majority of Industrial’s witnesses and counsel asked to provide testimony in French. Although the judge asked whether Mazraani would need an interpreter, when it was confirmed that he did, the judge instead encouraged Industrial’s first witness to be “pragmatic” and testify in English to avoid delays (Mazraani, para 11). Subsequent witnesses for Industrial had more difficulty communicating in English, but whenever they would attempt to speak French, the judge would steer them back to English. Sometimes witnesses would, by necessity, intersperse their testimony with French. All the while, an interpreter was never provided for Mazraani.
The TCC judge ultimately found in favour of Mazraani, concluding that he was an insurable employee of Industrial. In his lengthy judgement, the judge wrote scathingly about Industrial’s witnesses, interpreting their evidence as “misleading” and their words chosen so as to avoid telling the truth (Mazraani, para 15). The judge also attacked Industrial’s counsel, accusing him of inciting their witnesses, distorting the truth, and misleading the court. Although merely an intervener, the judge ordered Industrial to pay costs, employing the TCC’s power “to prevent and discourage any abuse of its process” (Mazraani, para 16).
Industrial appealed the TCC’s decision to the Federal Court of Appeal (“FCA”) on the grounds that the TCC proceedings had violated the language rights of its counsel and witnesses. The FCA agreed and that Mazraani’s rights had also been violated since he had not been provided an interpreter for parts of the witnesses’ testimony delivered in French. The FCA further held that judges cannot seek a shortcut around language rights as had the TCC judge, because language rights must be proactively protected. The FCA therefore ordered a new hearing before a different judge.
Mazraani appealed the FCA decision, arguing that the initial compromise between the TCC judge and Industrial’s first witness to speak in English was an agreement that applied throughout the hearing to all subsequent witnesses. However, Justices Gascon and Côté, writing for the unanimous Court, disagreed and upheld the FCA’s order of a new hearing before a different judge of the TCC.
The Court insisted that the right of an individual to speak in the official language of his or her choice is a substantive right rather than a procedural one, which means that the right cannot be interfered with and that the state has a duty to ensure that it is implemented. The Court also clarified that language rights exist no matter what the ability of the speaker.
They do not relate to the person’s ability to speak one language or another. Indeed, those who are bilingual are no less entitled to exercise them than those who are unilingual.” (Mazraani, para 20)
When a person exercises their language rights, there is also no need to verify whether he or she speaks better in one language or the other; in fact a “person may choose to stick to a single official language or may even change his or her mind while testifying” (Mazraani, para 40). As the Court made clear throughout its decision, language rights are about choice, not proficiency.
Constitutional and Quasi-Constitutional Protections
Whether there exists specific procedural rules relating to language accommodation, language rights are substantive, having both constitutional and quasi-constitutional protection. First, section 133 of the Constitution provides that a person may use either of the official languages in any pleading or process in any court of Canada. Furthermore, Section 19 of the Charter reads: “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.” Since the TCC is a court established by Parliament, both constitutional sections apply and protect the right to use French or English in the TCC. Finally, the Official Languages Act, RSC 1985, c 31 (“OLA”) also govern the exercise of constitutional rights in federal courts such as the TCC, providing additional quasi-constitutional protection to language rights. In particular, sections 14 and 15 of the OLA provide individuals, including witnesses, both the right to speak in the official language of his or her choice, but also the right to understand what others say in hearings through the aid of a court provided interpreter.
The Court interpreted sections 14 and 15 of the OLA as restating the essence of the right guaranteed in section 19 of the Charter and should therefore apply even to informal proceedings such as the one conducted in by the TCC. The Court further elaborated that the failure of the TCC’s rules of procedure to provide rules regarding language rights does not mean that they do not exist:
On the contrary, the OLA requires that in every case the TCC, a federal court, provide interpretation services at the request of a party and allow every person to speak in the official language of his or her choice.” (Mazraani, para 31)
The OLA merely decrees that any person can use either official in federal courts but requires no specific request nor special procedure to be followed for an individual to assert their language rights; to do so, individuals need do no more than speak in the language of their choosing in federal court.
The Court acknowledged that rules help facilitate the exercise of language rights by managing accommodations or difficulties ahead of time, but such rules are meant to speed up the process. In the absence of such rules, it is the duty of the judge and counsel for the parties to protect the language rights of individuals participating in a hearing. Lawyers have an ethical duty to serve the best interests of their clients, which include informing them and their witnesses of their language rights. However, since language rights are substantive rather than procedural, it is the judge of the federal court, more so than counsel, who is primarily responsible for upholding language rights, even where rules of procedure are lacking.
The duty of judges extends to ensuring that participants are aware of their language rights and that their choice of language is informed. The mere fact that a person uses one official language does not always reflect whether he or she made an informed choice to do so; many participants unaware of their rights may believe that they must proceed in the other official language. The Court warned that judges must be particularly vigilant not to disregard “switches in languages during certain parts of his or her testimony” or any “sign that a witness is uncomfortable in one language or wishes to speak in the other official language … as that could result in a violation of the witness’s language rights” (Mazraani, paras 34, 45).
Finally, when a judge observes that a witness will give testimony or counsel will be argue in a language the other party does not understand, the judge must inform the party of his or her right to an interpreter. The Court insisted that the judge should not hesitate to adjourn the hearing so that arrangements can be made for an interpreter, contrary to the conduct of the TCC judge.
Urging witnesses to speak in English not only deprives them of their constitutionally protected rights, but such a violation also goes to the heart of access-to-justice. Because the Industrial witnesses could not communicate in the language of their choice, they were unable to give fulsome evidence and properly participate in the judicial process. As Justices Gascon and Côté observed, many of the issues the TCC judge took with Industrial’s evidence were likely miscommunications due to language barriers, and what the judge interpreted as “bad faith … may simply have been an awkward use of expressions in a language in which the witness was not fluent” (Mazraani, para 67).
Although we all know that French and English are the official languages of Canada—as with so many of our legal rights—there are no doubt many who are not aware that they have the right to speak the official language of their choice, especially when the judge and other party speak the other. Therefore, when a judge not only shirks his or her duty to ensure that participants exercise informed language choices, but goes so far as to pressure individuals to go against their preference, the administration of justice is at risk of appearing unfair and biased.