Provincial Principals and Federal Agents in Societe des acadiens et du Nouveau-Brunswick Inc. v. Canada

Language rights, delegated powers and the constitutional culpability of the Royal Canadian Mounted Police (“RCMP”) are all at issue in Société des acadiens et acadiennes du Nouveau-Brunswick Inc v Canada. The case is on the Supreme Court of Canada’s (“SCC”) October docket; it is an appeal from the decision of the Federal Court of Appeal, which can be found here, [2007] 2 FCR 177.

In 2000, Marie-Claire Paulin, a citizen of New Brunswick, was ticketed for speeding by an RCMP officer who was unable to address her in French. The incident occurred in the aftermath of the consolidation of the RCMP’s four Atlantic divisions in the mid-1990s. The “H” Division in Nova Scotia, the “B” Division in Newfoundland and Labrador, the “L” Division in Prince Edward Island, and the “J” Division in New Brunswick all became a single unit. The RCMP was, prior to this particular incident, uncertain about the extent of its language obligations in New Brunswick, which is the only officially bilingual province in Canada. They had retained an outside consultant, Robin S. Wilson, who upon reviewing RCMP operations in the Atlantic region, recommended an overall reduction in the force’s bilingual capabilities, specifically in the area of oral communications.

It was in this context that Marie-Claire Paulin and the Société des Acadiennes du Nouveau-Brunswick, (a non-profit organization dedicated to promoting Acadian interests in New Brunswick), launched a s. 24 Charter challenge of the RCMP’s failure to provide French services to Ms. Paulin.

On account of its bilingualism, New Brunswick receives special attention in the Charter. Section 16(2) of the Charter stipulates that English and French have “equality of status and equal rights and privileges as to their use in all institutions of the legislature and government of New Brunswick.” Alongside the equality of the two languages guaranteed in 16(2) New Brunswick residents are also furnished access to a variety of services in both English and French. Section 20(2) of the Charter reads:

(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.

That policing is implicated under 20(2) is fairly obvious. More controversial however, is the question of which branch of government should be accountable in the event of non-compliance with 20(2) by the RCMP.

In New Brunswick, (as in every province with the exception of Ontario and Quebec), responsibility for provincial policing is contracted out to the RCMP. In other words, although the RCMP is a federal institution, it also operates as an agent of the government of New Brunswick, and in this capacity it is a provincial police force whose authority is delegated to it by the province.

As a result of this arrangement, it is unclear whether the case at bar is justiciable in the Federal Court, or whether it ought to be heard in the New Brunswick Court of Queen’s Bench. On one hand, the administration of provincial police forces is an enumerated provincial power under s. 92(14) of the Constitution Act, 1867, but on the other, the RCMP — the body responsible for provincial policing in New Brunswick — is a federal institution.

Ms. Paulin and the Société brought their respective actions in the Federal Court, where they were successful in obtaining a declaration that s. 20(2) of the Charter did in fact apply to the RCMP. The trial judge, Gauthier J., reasoned that it is “essential to ensure that the provincial government cannot evade its constitutional obligations by assigning a federal institution to maintain order and enforce the law within the province rather than having this done by a municipality or a private entity.” In doing so, she followed the earlier jurisprudence of Blais J. in Canada (Commissioner Official Languages) v Canada (Department of Justice) (2005), 2005 FC 1172.

However, the Federal Court of Appeal reversed the lower court’s judgment, holding that the proceedings should have been brought against the province (and therefore in the provincial court) instead of against the RCMP. For Richard C.J., the RCMP’s position as an agent of the government of New Brunswick pursuant to its contract therewith appears to have been determinative. That the RCMP is also a federal institution had no bearing on Richard C.J.’s finding. The reason for this, the Chief Justice explained, is that all agents of the province are conceptually similar: “all are responsible in the same way… [and] the source of [their] responsibility is contractual, not constitutional.” Put differently, when a province delegates powers — even if the entity assuming provincial powers is itself a federal institution and as such bound by the Constitution — it does not confer responsibility for upholding the constitutional principles that govern the delegated power. Underlying Ms. Paulin and the Société’s “misidentification of the court able to hear [their] dispute,” then, was a “failure to identify the party owing the obligation.”

Regardless of whether the Federal Court of Appeal was correct in finding that the RCMP’s obligations are as a party to a contract as opposed to as a federal institution, the court’s conclusion is problematic. It seems to imply that the federal government can contract with provinces to perform services that fall short of Charter requirements, then escape liability on the grounds that the source of its jurisdiction is a delegated provincial power. From a policy standpoint, it would be far more expedient to hold the federal government accountable for the actions of its own institutions, even when they are involved in provincial undertakings. Surely the federal government is in a better position to address a problem related to the RCMP than is the government of New Brunswick.

Whatever the case, it is clear that the federal government has a normative obligation to comply with the Charter irrespective of contextual factors such as whether it is the principal or the agent in a particular situation. In Société des acadiens et acadiennes du Nouveau-Brunswick Inc v Canada, the SCC will have the chance to transform this normative obligation into a legal one.