Parliamentary Committee Language Rights case will not be heard

Two weeks ago, the Supreme Court of Canada (“SCC”) dismissed the leave application in Knopf v Canada (Speaker of the House of Commons), 2007 FCA 308. This leaves the Federal Court of Appeal’s (“FCA”) decision as the final word on the matter of whether the right to address committee members in either official language guaranteed by the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982 [“Charter“] and the Official Languages Act, RSC 1985, c 31 (4th Supp) [“OLA“], was confined to oral presentations, or whether it extended to written submissions as well.

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 online: <www.excesscopyright.blogspot.ca>. 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, (UK), 30 & 31 Victoria, c 3:

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,

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 [(5 September 2007) online: <www.excesscopyright.blogspot.ca>].