R. v. Paquette (No. 2), (1987) 83 A.R. 41 (CA)

• Judge: Stevenson, Hetherington and Irving, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: Friday November 27, 1987
• Citations: (1987), 83 A.R. 41 (CA)

R. v. Paquette (1987), 83 A.R. 41 (CA)

MLB headnote and full text

Luc Paquette v. Her Majesty The Queen in Right of Canada and Her Majesty The Queen in Right of Alberta

(Appeal Nos. 8603-0268-A-0335, 0336)

Indexed As: R. v. Paquette (No. 2)

Alberta Court of Appeal

Stevenson, Hetherington and Irving, JJ.A.

November 27, 1987.

Summary:

An accused was charged with possession of a narcotic for the purpose of trafficking, contrary to s. 4(2) of the Narcotic Control Act. Before the preliminary inquiry, the accused gave notice under the Judicature Act of his intention to elect trial by judge and jury in French.

The Alberta Provincial Court dismissed his application and directed that the preliminary inquiry proceed in the English language, with the aid of an interpreter. The accused applied for an order to prohibit any judge of the Provincial Court from proceeding with the preliminary inquiry in the English language. The accused also sought an order under s. 24(1) of the Charter of Rights and Freedoms declaring that he was entitled to be tried before a judge and jury in the French language.

The Alberta Court of Queen's Bench, in a decision reported 63 A.R. 258, allowed the application in part. The court held that s. 110 of the Northwest Territories Act, which had been adopted into the law of Alberta and had not been repealed, guaranteed the accused's right to use either the French or English language in court proceedings. The court set out the rights conferred by s. 110. The Attorneys General of Canada and Alberta appealed. The accused also appealed.

The Alberta Court of Appeal, Hetherington, J.A., dissenting, in a judgment reported 81 A.R. 12, allowed the appeals of the Attorneys General of Alberta and Canada, dismissed the accused's appeal and set aside the Queen's Bench order in its entirety. The court held that s. 110 did not give an accused the right to a preliminary inquiry in French, therefore prohibition did not lie to prohibit a preliminary inquiry in English. The court set out its opinion on the scope of s. 110.

Hetherington, J.A., held that the Queen's Bench order was declaratory and not an order of prohibition. Therefore, since the Criminal Code did not provide an appeal from a declaratory order, the Court of Appeal had no jurisdiction to hear the appeals.

Before the appeal was heard the parties had appeared to present Charter arguments. Specifically the accused argued that because Part XIV.1 of the Criminal Code, which provided for trials in either official language, was not proclaimed in Alberta but was proclaimed in several other Canadian provinces, he was being discriminated against contrary to s. 15 of the Charter.

In a judgment reported 69 A.R. 87, the Alberta Court of Queen's Bench held that the accused's s. 15 Charter rights were violated by the nonproclamation in Alberta, that s. 1 of the Charter was inapplicable, and ordered as a remedy under s. 24(1) of the Charter that the accused was entitled to all rights conferred by Part XIV.1 of the Code, notwithstanding its nonproclamation. The Attorneys General of Canada and Alberta appealed.

The Alberta Court of Appeal, Hetherington, J.A., dissenting, allowed the appeal and set aside the order in its entirety. The court held that the staged implementation of language rights into the criminal procedure did not violate the accused's equality rights.

Hetherington, J.A., again held that the order was declaratory and the Court of Appeal lacked jurisdiction to hear the appeals.

Civil Rights - Topic 2947

Language - Criminal proceedings - Right to trial in either official language - Criminal Code, Part XIV.1 - Part XIV.1, which provided for criminal trials in both official languages, was proclaimed in several Canadian provinces, but not in Alberta - The Alberta Court of Appeal held that the delay in proclaiming Part XIV.1 did not discriminate against an Alberta accused wanting a French trial - The court stated that the staged implementation of language rights into criminal procedure could not be effectively implemented without time to implement it - The object of the legislation was to extend language rights, not to discriminate - No group was singled out in an offensive or invidious way - Temporary discrimination on geographical grounds was necessary - The court noted that progressive implementation of language rights was envisaged by s. 16(3) of the Charter - See paragraphs 28 to 50.

Civil Rights - Topic 5642

Equality and protection of the law - Federal statute not proclaimed in all provinces - Criminal Code, Part XIV.1 - [See Civil Rights - Topic 2947 above].

Civil Rights - Topic 5660.3

Equality and protection of the law - Language rights - [See Civil Rights - Topic 2947 above].

Civil Rights - Topic 8363

Canadian Charter of Rights and Freedoms - Denial of rights - Jurisdiction - Court of competent jurisdiction - Before trial an accused challenged the nonproclamation in Alberta of Part XIV.1 of the Criminal Code, which provided for trials in either official language, as discriminating against him contrary to s. 15 of the Charter - The Alberta Court of Appeal held that the Court of Queen's Bench, not the preliminary hearing judge, was a court of competent jurisdiction to grant a Charter remedy - The court stated that although Charter questions were ordinarily dealt with at trial, the Queen's Bench had jurisdiction to determine the issue in this case - See paragraphs 12 to 14.

Civil Rights - Topic 8380.1

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Conferring of rights - Part XIV.1 of the Criminal Code provided for criminal trials in both official languages - Part XIV.1 was proclaimed in several Canadian provinces but not in Alberta, even several years after Part XIV.1 was enacted - The Alberta Court of Queen's Bench held that an accused in Alberta who desired a French trial was discriminated against contrary to s. 15 of the Charter because of the delay in proclamation in Alberta - The court, as a remedy under s. 24(1) of the Charter, ordered that the accused was entitled to all rights given by Part XIV.1 of the Code, notwithstanding its nonproclamation in Alberta - The Alberta Court of Appeal held that assuming there was a breach, the proper remedy would have been a declaration coupled with a requirement of proclamation after an appropriate time; immediate implementation was impractical and should not have been ordered - See paragraphs 51 to 54.

Civil Rights - Topic 8412

Canadian Charter of Rights and Freedoms - Criminal proceedings - Appeals from interlocutory decision - When available - An accused, before trial, challenged the nonproclamation in Alberta of Part XIV.1 of the Criminal Code as discriminating against him contrary to s. 15 of the Charter - The trial judge found nonproclamation to be contrary to s. 15 and granted a Charter remedy - The federal and provincial Crown appealed - The Alberta Court of Appeal held that it had jurisdiction to hear the appeal, because the proceeding sought prerogative relief - The court stated that it would have had no jurisdiction if the proceedings were not prerogative in nature, because the Charter gave no right of appellate review of a decision under s. 24 and if the proceeding were criminal in nature no appeal was available where not authorized by the Criminal Code - See paragraphs 15 to 24.

Civil Rights - Topic 8484

Canadian Charter of Rights and Freedoms - Interpretation - Language rights - The Alberta Court of Appeal stated that the inclusion of ss. 16 to 22 of the Charter, which dealt with the official languages of Canada, excluded language from the protection of s. 15 of the Charter, because to hold otherwise would make ss. 16 to 22 redundant - The court stated that "the decision is not based on language and the official languages are simply not accorded equality status by the Charter" - See paragraph 35.

Civil Rights - Topic 8486

Canadian Charter of Rights and Freedoms - Interpretation - Equality provision - The Alberta Court of Appeal made three general statements on the scope of equality rights under s. 15 of the Charter - The court stated that (1) decisions on similar provisions of the Bill of Rights were of limited value, (2) the enumerated heads of prohibited discrimination were not exclusive and (3) legislation must not offend equality rights either in purpose or effect - See paragraph 32.

Courts - Topic 8388

Provincial courts - Alberta - Court of Appeal - Jurisdiction - Appeals from interlocutory orders - [See Civil Rights - Topic 8412 above].

Cases Noticed:

R. v. Mills, [1986] 1 S.C.R. 863; 67 N.R. 241; 16 O.A.C. 81; 26 C.C.C.(3d) 481; 2 C.R.R. 76, appld. [para. 14].

R. v. Rahey, [1987] 1 S.C.R. 588; 75 N.R. 81; 78 N.S.R.(2d) 183; 193 A.P.R. 183, refd to. [para. 14].

Re Anson and The Queen (1983), 4 C.C.C.(3d) 119 (B.C.C.A.), refd to. [para. 14].

R. v. Kendall (1982), 42 A.R. 183, refd to. [para. 14].

Operation Dismantle Inc. et al. v. Canada et al. (1985), 59 N.R. 1; 3 D.L.R.(4th) 481 (S.C.C.), refd to. [para. 25].

R. v. Hamilton, Asselin and McCullagh (1986), 17 O.A.C. 241; 54 C.R.(3d) 193 (C.A.), dist. [para. 26].

Smith, Kline and French Laboratories Limited v. Canada (Attorney General) (1986), 78 N.R. 30; 34 D.L.R.(4th) 584 (F.C.A.), refd to. [para. 31].

Mahe et al. v. Alberta (1987), 81 A.R. 161 (C.A.), consd. [para. 35].

R. v. P.J.T. et al., [1986] 1 W.W.R. 690; 65 A.R. 29 (C.A.), consd. [para. 36].

R. v. Tremblay (1986), 41 Sask.R. 49; 20 C.C.C.(3d) 454 (Q.B.), consd. [para. 37].

Andrews v. Law Society of British Columbia, [1986] 4 W.W.R. 242 (B.C.C.A.), refd to. [para. 40].

B.C. and Yukon Territory Building and Construction Trades Council et al. v. A.G. of B.C. and Expo '86 Corporation et al. (1986), 22 D.L.R.(4th) 540, refd to. [para. 40].

Smith, Kline and French Laboratories v. Canada (Attorney General) (1986), 12 F.T.R. 81; 24 D.L.R.(4th) 321 (F.C.T.D.), refd to. [para. 40].

Reference Re French Language Rights of Accused, [1987] 5 W.W.R. 577; 58 Sask.R. 161 (C.A.), disagreed with [para. 40].

Missouri v. Lewis (1879), 101 U.S. 22, refd to. [para. 42].

Salsburg v. Maryland (1954), 346 U.S. 545, refd to. [para. 42].

Ringuette v. Canada (Attorney General) and Newfoundland (Attorney General) (1987), 63 Nfld. & P.E.I.R. 126; 194 A.P.R. 126 (Nfld. C.A.), consd. [para. 48].

Societe des Acadiens du Nouveau-Brunswick Inc. and Association des conseillers scolaires francophones du Nouveau-Brunswick v. Minority Language School Board No. 50 and Association for Fairness in Education, Grand Falls District 50 Branch, [1986] 1 S.C.R. 579; 66 N.R. 173; 69 N.B.R.(2d) 271; 177 A.P.R. 271, refd to. [para. 51].

Manitoba Languages Rights Reference (1985), 59 N.R. 321; 35 Man.R.(2d) 83; 19 D.L.R.(4th) 1 (S.C.C.), refd to. [para. 52].

Brown v. Board of Education, 349 U.S. 294, refd to. [para. 52].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 15(1) [para. 5]; sect. 24(1) [para. 72].

Criminal Code, R.S.C. 1970, c. C-34, sect. 462.1(1), sect. 462.1(4), sect. 462.1(5), sect. 462.2, sect. 462.4 [para. 4]; sect. 719(1) [para. 76].

Criminal Code Amendment Act, S.C. 1977-78, c. 36, sect. 6(1), sect. 6(5), sect. 6(6) [para. 3].

Criminal Code Amendment Act, S.C. 1985, c. 19, sect. 188 [para. 3].

Rules of Court (Alta.), rule 437 [para. 78].

Authors and Works Noticed:

Gold, The Principled Approach to Equality Rights: a Preliminary Inquiry (1982), 4 Sup. Ct. L. Rev. 131, p. 147 [para. 40].

Wakeling and Chipeur, An Analysis of Section 15 of the Charter after the First Two Years (1987), 25 Alta. L. Rev. 407 [para. 40].

Canada, Minutes of the Standing Committee on Justice and Legal Affairs, 3rd session, issue no. 31, p. 31 [para. 51].

Gibson, The Law of the Charter: General Principles, p. 190 [para. 53].

Drapeau, Les Effets Linguistiques des Recentes Modifications au Code Criminel, p. 128 [para. 55].

Bastarache, Les Droits Linguistiques au Canada (1986) [para. 55].

Salhany, R.E., Canadian Criminal Procedure (4th Ed. 1984), p. 548 [para. 78].

Chasse, Ken, Criminal Procedure: Canadian Law and Practice (1984), vol. 3, p. XVII-1 [para. 85].

Counsel:

M.T. Moreau, for Luc Paquette;

C.D. O'Brien, Q.C., and G.N. Stapon, for Her Majesty the Queen in the Right of Canada;

P.T. Costigan and J.R.M. Black, for Her Majesty the Queen in the Right of Alberta.

This appeal was heard before Stevenson, Hetherington and Irving, JJ.A., of the Alberta Court of Appeal.

On November 27, 1987, the judgment of the Court of Appeal was delivered and the following opinions were filed:

Stevenson, J.A. (Irving, J.A., concurring) - see paragraphs 1 to 57;

Hetherington, J.A., dissenting - see paragraphs 58 to 92.