E. Interpreting Language Rights

Author:Robert J. Sharpe - Kent Roach
Profession:Court of Appeal for Ontario - Faculty of Law, University of Toronto

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1) Institutional Bilingualism

The Supreme Court has not been entirely consistent in its approach to the interpretation of language rights. In early cases involving section 133 of the Constitution Act, 1867, the Court took an expansive view. In Blaikie (No 1),19the Court held that, in deciding which institutions were covered by section 133, the words of the constitution should be given a progressive interpretation, taking into account the changing nature of courts and government since 1867. Although section 133 required that "laws" be in both French and English, the Court found that the guarantee should encompass regulations and delegated legislation, not just statutes, given the proliferation of this type of law making today. In addition, the term "courts" was interpreted to include adjudicative tribunals, like labour relations boards or human rights tribunals, since many legal disputes are now determined by these bodies.

This generous view of language rights was evident again in Reference Re Manitoba Language Rights.20In an earlier decision, Manitoba (AG) v Forest,21the Supreme Court had found that legislation enacted by Manitoba in 1890 purporting to repeal the bilingualism requirement in section 23 of the Manitoba Act, 1870 was unconstitutional. A reference was then launched to determine the effect of almost one hundred years of non-compliance with section 23. The Court held that the requirement was mandatory, so that all laws passed only in English were invalid. If the Court had stopped here, a large component of Manitoba law would have been invalid and the legislature would have been improperly elected under an English-only law. Recognizing the need to prevent a "legislative vacuum" and to preserve the rule of law, the Supreme Court suspended the effect of its declaration of invalidity for a period that allowed Manitoba to translate and re-enact its laws - this time, in both official languages.

The Supreme Court was initially unwilling to embrace an expansive view of language rights in relation to court proceedings. In cases decided under both section 133 of the Constitution Act, 1867 and section 19(2) of the Charter, a majority of the Court accepted the argument that

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the right to use French or English in proceedings of the courts entitles an individual to no more than that - a right to speak in either language. The individual cannot demand that the court proceedings be conducted in the language of his or her choice, nor that the judge understand that language. The right to use French or English in court proceedings extended not only to the litigant but also to the court staff and the judges. In MACDONALD v Montreal (City),22the use of a unilingual French summons was found to be acceptable, while in Société des Acadiens, the Court held that a francophone litigant in New Brunswick could not demand a French-speaking judge.23In both cases, Beetz J, writing for the majority, emphasized that language rights were different from most others in the Charter. In his view, they were the result of a historic political compromise and should be interpreted more narrowly, with an attitude of judicial restraint.24In contrast, legal rights were described as "seminal in nature because they are rooted in principle."25It should be noted, however, that in Société des Acadiens, Beetz J emphasized that the rules of natural justice or procedural fairness would require that any individual who did not understand proceedings be given access to an interpreter.

In contrast, the dissenting reasons of Dickson CJC and Wilson J emphasized that the right to use one’s language included the notion of being understood. Neither stated definitively what this would mean. Chief Justice Dickson stated that this might encompass the use of interpreters or simultaneous translation, although on the facts of the case, it had not been shown that the judges did not understand French. Justice Wilson felt that section 19(2) of the Charter was evolving towards a requirement of a bilingual judiciary.

The Supreme Court has now repudiated the narrow view of language rights that it took in Société des Acadiens. In R v Beaulac,26the Court interpreted the right to be tried in either English or French granted by section 530 of the Criminal Code. Although the case did not arise under the Charter, the Court explicitly stated that it would no longer be bound by the view that language rights should be interpreted more narrowly than other rights. Writing for the majority, Bastarache J stated:

Language rights must in all cases be interpreted purposively, in a manner consistent with the preservation and development of official

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language communities in Canada . . . . To the extent that Société des Acadiens du Nouveau-Brunswick stands for a restrictive interpretation of language rights, it is to be rejected.27The Court now takes the position that the language rights in the Charter are meant to achieve substantive equality between linguistic groups, rather than formal equality.28In an example of this expansive approach to language rights, the Supreme Court found that RCMP officers acting as a provincial police force in New Brunswick were obligated to provide services in both English and French.29The decision was based on section 20(2) of the Charter, which specifically provides that all services from a governmental body in New Brunswick shall be available in both official languages. The Court found that as the RCMP had contracted with the New Brunswick government to serve as a provincial police force, they were bound by that provision of the Charter which applied specifically to services of the New Brunswick government.

Where the Charter requires that government services be provided in both official languages, the services provided in each language must be of equal quality.30This requirement will not always be satisfied simply by ensuring that the services provided in each language are identical to each other. Depending on the nature of the services being provided, it may be necessary to provide services with distinct content in order to achieve substantive equality between the services offered to different linguistic groups.31For example, when the content of services is...

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