Societe des Acadiens et Acadiennes du Nouveau-Brunswick Inc v Canada – revisited

On October 17, 2007, the Supreme Court of Canada (“SCC”) will hear the case Societe des Acadiens et Acadiennes du Nouveau-Brunswick Inc v Canada, [2007] 2 FCR 177, an appeal from the Federal Court of Appeal (“FCA”). This case deals with the Royal Canadian Mounted Police’s (“RCMP”) language obligations under the constitution while performing New Brunswick provincial policing work.

The RCMP, as a federal police force, remains responsible for enforcing federal law in Canada; however, by intergovernmental agreement, the RCMP can assume additional responsibilities that fall within municipal by-laws or provincial legislation. In 1992, an agreement was formed pursuant to the New Brunswick Police Act, SNB 1977, c P-9.2 which allowed the RCMP to act as a provincial police force on behalf of the province. This agreement stipulated that, beyond an RCMP minimum threshold standard, the province was responsible for setting the responsibilities of the RCMP’s police service, as well as setting the goals, objectives, and priorities of the provincial police service. The RCMP was thus accountable to the province for the implementation of these goals. Further, according to the contract, the province was responsible for establishing the RCMP’s requirement for service in both official languages, beyond federally-imposed language obligations on the RCMP. The contract between the government of New Brunswick and Canada, however, did not address these language obligations.

In the mid-1990s, the RCMP combined its four Atlantic divisions. At meetings of the transition team for this region, the issue of official languages was discussed. A subcommittee was formed to investigate this issue and recommended that all positions should be reviewed in order to determine the need for specified bilingual positions. An independent consultant was also hired by the management of the Atlantic RCMP to review the interpretation, application, and implementation of Canada’s Official Languages Act, RSC 1985, c 31 (4th Supp) and its Regulations in the Atlantic region. This consultant suggested that the oral communication language obligations of the RCMP be decreased.

On April 26, 2000, Marie-Claire Paulin, a French-speaking citizen of New Brunswick, was stopped by an RCMP officer for speeding. The officer was unable to speak to Ms. Paulin in French and made no attempts to do so. She received a ticket with an imposed fine, issued in French, which she paid that same day.

The Societe des Acadiennes du New Brunswick Inc., a not-for-profit corporation with the goal of protection and promotion of the rights and interests of the Acadian community of New Brunswick, initiated proceedings to seek a declaration of the language obligations of the RCMP in its New Brunswick policing role.

According to s. 16(1)) of the Charter, English and French are the official languages of the province of New Brunswick with “equality of status and equal rights and privileges as to their use in all institutions of the legislature and government of the province.” Both linguistic communities are also given equality of status, rights, and privileges according to s. 16(2). Section 20(2) of the Charter gives any member of the public in the province the right to receive services and communicate with any office of an institution of the government or legislature of the province of New Brunswick in either language. Further, after Ms. Paulin received her ticket and fine, New Brunswick’s Official Languages Act, SNB 2002, c O-0.5 was implemented and under s. 31, the province was required to provide police services in the official language of the citizen’s choice.

At the Federal Court, the trial judge found that the RCMP was a provincial institution for the purposes of s. 20(2) of the Charter and hence, the provincial police services performed by the RCMP were subject to s. 20(2). The RCMP was given one year to meet the language obligations stemming from this declaration.

The Crown in the right of Canada appealed this judgment and the FCA was faced with two questions:

1) Should the appellant and her institutions fulfill the obligations that the Constitution and the provincial legislation impose on a province?
2) Is the Federal Court the forum conveniens for this dispute?

The FCA unanimously overturned the trial judge’s judgment. In coming to this decision, the FCA explained that the province and its institutions are responsible for ensuring that the Charter obligation in s. 20(2) with respect to allowing citizens of New Brunswick to receive services in the official language of their choice is met. Further, at subsection 92(14) of the Constitution Act, 1867 the provinces are given jurisdiction over the “Administration of Justice,” which includes the responsibility to create and organize police forces.

Parliament has the exclusive jurisdiction to regulate the RCMP, a federal institution, and its members, even when the RCMP acts as provincial police officers. Thus, the RCMP must meet language responsibilities imposed by the Charter on federal institutions, even while acting in a provincial policing role. The province, however, as principal, is responsible for the acts of its agents, including the RCMP, as expressly specified in the Charter, as well as New Brunswick’s Official Languages Act. Hence, the responsibility of the RCMP as agent for the province in providing provincial policing services is contractual, rather than constitutional.

The FCA also added that the failure to recognize that it is the province of New Brunswick who is the party responsible to fulfill the obligation, lead to the incorrect identification of the court with the authority to hear this dispute. Rather than the Federal Court, the Court of Queen’s Bench of New Brunswick has the jurisdiction to hear a dispute involving the language obligations of that province.

Earlier this month, Matthew Shogilev voiced his concerns about the FCA’s decision in a post titled: “Provincial Principals and Federal Agents in Societe des acadiens et du Nouveau-Brunswick Inc. v. Canada.” I will play devil’s advocate to his post and support the FCA decision, the judgment should not be viewed as the federal government contracting with provinces to perform services that fall short of Charter requirements; rather, the federal government, without compromising its obligations, has contracted with the province to fulfill obligations imposed by the contract. It is the responsibility of the principal to ensure that its constitutional obligations are addressed. The FCA’s decision does not relieve the RCMP of their federally-imposed language obligations. As explained in paragraph 36 of the case, “The RCMP must therefore continue to fulfill the language obligations that the Charter imposes on federal institutions, even when it is acting as a police force for a province that is not subject to constitutional official language obligations.” The judgment reinforces the principle that the province is responsible as principal for their agent’s actions, which applies for any person or organization acting in the agent role. This is highlighted in paragraph 42:

The issue raised in this appeal is whether the agent fulfilling those obligations is also responsible for the constitutional obligations of the principal. In this case, the agent is a federal institution, but it could just as easily be a provincial institution or even a business that is not governmental (a private police service). Since all are agents of the province, all are responsible in the same way, if they are responsible. When the issue of the agent’s responsibility is raised in a context other than that of a federal institution, it is obvious that the source of the responsibility is contractual, and not constitutional.

Should the court hold anybody responsible for the failure to fulfill obligations relating to the provision of both official languages, the province, as principal, should be accountable. According to the agreement, the province was responsible for setting the “level of service in both official languages required from the RCMP, beyond the language obligations that the RCMP must already observe as a federal institution.” While a separate proceeding against the RCMP may very well be merited for their failure to provide communication in the French language, in this case, since the dual language obligation did not extend to third party agents of the province, including the RCMP, pursuant to the agreement, the party owing the obligation should have been identified as the province, rather than the RCMP, and the matter should thus have been heard at the province’s Court of the Queen’s Bench, rather than the Federal Court.