Belisle et al., Re, [1968] N.B. Law News No. 81 (CA)

• Judge: Ritchie, Limerick and Hughes, JJ.A.
• Court: Court of Appeal (New Brunswick)
• Case Date: June 04, 1968
• Jurisdiction: New Brunswick
• Citations: [1968] N.B. Law News No. 81 (CA)

Belisle, Re, [1968] N.B. Law News No. 81 (CA)

MLB Law News

In The Matter Of an Application by Jacques Belisle and Jacques Moreau for an Order of Certiorari

And In The Matter Of an Order made by Henry J. Murphy, Judge of the Magistrates Court of the Province of New Brunswick, at the City of Moncton, in the Province of New Brunswick, on the 24th day of April, A.D., 1968.

Indexed As: Belisle et al., Re

New Brunswick Supreme Court

Appeal Division

Ritchie, Limerick and Hughes, JJ.A.

June 4, 1968.

Summary:

Certiorari - Evidence Act, sec. 23 - Can. Evidence Act, sec. 36 - Application for order of certiorari quashing judge's order that proceedings on preliminary inquiry be conducted in the English language refused without costs. Court held section 36 of the Canada Evidence Act regarding the applicability to criminal proceedings of "laws of evidence in force in the province" refers to enactments of the province respecting evidence. See The King v. Doull, 1931 Ex. C.R. 159 at 160. Court stated,

"A law respecting the use of language in a court proceeding is a law respecting procedure, but not, in our opinion, a law respecting the branch of procedure known as evidence. Section 23C of the Evidence Act, being such a law, is not a law of evidence and is therefore not made applicable to criminal proceedings by section 36 of the Canada Evidence Act.

"As 'procedure in criminal matters' is one of the classes of subjects assigned to the Parliament of Canada by section 91(27) of the British North America Act, the legislature of a province is without jurisdiction to enact legislation respecting the use of language in criminal proceedings. Section 23C cannot therefore be construed as having any application to a criminal prosecution unless it were made applicable thereto by federal legislation, which we have held has not been done."

Prior to the enactment of section 23C of the Evidence Act, English was the only language for the conduct of proceedings in the courts of New Brunswick. See R. v. Kelly, a New Brunswick Court of Appeal Judgment dated December 9, 1966, and reported in the N.B. Law News (1967) February issue 67-22 and Randall v. The Queen (1965) 44 C.R. 354 (N.B.C.A.). The Court said,

"The Provincial courts have always regarded the English common law and those statutes in amendment of the common law enacted prior to the Restoration of 1660, if applicable to the colonial conditions of the Province, as forming part of the law of the Province. See The King v. McLaughlin (1830) 1 N.B.R. 218, followed in Boyd et al. v. Fudge et al. (1965) 46 D.L.R.(2d) 679 (N.B.C.A.)."

In 1650 prior to the Restoration An Act for Turning the Books of the Law, and all Process and Proceedings in Courts of Justice, into English was passed by the Parliament of England and this Act was subsequently, after the Restoration, repealed but since acts passed prior to the Restoration, if otherwise applicable, were to form part of the law of New Brunswick the repeal of the Act after the Restoration had no effect on its application here. Court stated,

"Great sociological changes have occurred in New Brunswick since its establishment as a separate province in 1784. The French language has come into more wide-spread use and in its 1968 session the legislation reaffirmed by resolution that the English and French languages have full rights of usage in all proceedings in the assembly. It is, however, the function of this Court to interpret and apply the law not to remake it, that being the responsibility of parliament and of the legislature ...

"Counsel for the applicants has not suggested any foundation for his contention that the order of the learned trial judge constituted a denial of a civil or constitutional right other than whatever right or privilege may have been conferred by section 23C of the Evidence Act, which we hold does not apply to criminal proceedings.

"While certiorari lies where some procedure of an inferior court constitutes a denial of natural justice, as where an accused is not permitted to make his full answer and defence, the decision of the learned trial judge to proceed with the hearing in the official language of the courts of this Province cannot in law constitute a denial of natural justice."

Counsel:

Roger Savoie, for the applicant;

Donald Friel, for the Crown.

This appeal was heard before Ritchie, Limerick and Hughes, JJ.A., of the New Brunswick Supreme Court, Appeal Division, who delivered the following decision on June 4, 1968.