Language Rights

“Language” not its own matter – to determine what power it relates to ask:
What is the subject matter of the legisl (other than language) – what institution /
activity?
eg. Courts of NB use of both Fr and Eng --> matter = adiministration of justice -
s92(14)

-alternatively may be a matter outside any enum power – therefore fedl power
under POGG

Jones v AG NB – SCC upheld the Official Languages Act – made Eng & Fr the
“official languages in the institutions of Parliament and the Government of
Canada. --> Fedl power over fedl govt + parlt institutions (pogg power); fedl
courts (s101); criminal proceedings – power over crim procedure (s91(27));
In the same case NB's own Official Lang Act which prov for use of both langs in
the NB courts upheld under - power over admin of justice in the province (92(14)).

Devine v Que – SCC upheld Que Charter of Fr lang as in relation to commerce w/in
the province (92(13)).

Fr version of the 1867 Act never introduced, so not official – ie any discrepancy
resolved in favour of the Eng version

1982 Act (which inc Charter) enacted in both langs and s57 provides that both
versions have equal authority.

How to interpret discrepancies btw Eng / Fr version:

1. if one lang is more clear and other more ambiguous, use the clear one
2. if one gives better effect to the purpose of the statute, use that one

Statutes :
-use both langs for records and statutes of both Houses Parlt, Que Legisl by s133
1867 Act
-Manitoba also by s23 Manitoba Act

Constitutionally bound to print and publish statutes in both langs:

-NB Legislature (s18(2) 1982 Act); manitoba (s23 Man Act); Parlt Que (s133, 1867
Act)

Test for when s133 (or s23 Manit Act) Fr/Eng Lang Reqt applies:
“Instruments of a legislative nature which
1. establish a “rule of conduct”
2. have the force of law
3. are of general application rather than applicable only to specific individuals /
situations
Otherwise – no Constl oblig to translate into Fr/Eng
-Re Manitoba Lang Rights (No 2)

AG Que v Blaikie – Que tried to make Fr the lang of legisl and bills – and to make
Eng an unofficial version – SCC struc down the provision – Que had to sit and
enact corrective statute to avoid legal vacuum

Re Manitoba Lang Rights – confirmed that failure to comply w/ s23 rendered the
stat invalid. Had to allow them to be deemed vaid until translated to avoid legal
vacuum.
Court also held not enough to enact in Eng then provide Fr translation – Fr
speakers had to be given opp to particip in the process.

Incorporation by Reference: If an Act is subj to the lang reqt and it incorp

another act that incorp act must also be in both langs.
A-G v Collier – note the external document must be an “integral part” of the main
Act to be subject to the lang reqt.

R v Massia – unless the incorp document emanates from a source that is under no
oblig to e bilingual (Fedl traffic law (Eng/Fr reqt) referred to Ont traffic law (Eng
only))

Delegated Legislation :
AG v Blaikie – s133 applies to delegated legisl as well as to statutes
Blaikie (No 2) – only Regs made by “Govt” (L-G; Exec, Ministers) and those made
outside Govt but subject to its approval came under s133.

Not subject to s133 (lang reqt):

-Regs not made by Govt and not subject to its approval
-municipality by-laws, school board by-laws, (even if those by-laws are subj to got
approval)

Court rules of practice – subj to s133

*see test above

Sinclair v Que – could new municip be created by issuing letters patent in French
only?
Court held municip not validly est – because it would have legal power over
residents (unlike a priv co.)

Courts:
per s133 Rng and Fr may be used in any process / pleading (in Fedl Crt and Que)

Blaikie – Que's attempt to limit avail of Eng to “certain circumstances” rejected –

s133 says “any” court process / pleading.

Process:
MacDonald v Montreal – summons was in Fr only – ok because Courts can choose
the language for procedure

Proceedings:
-lang rights to be interpreted in a liberal, purposive manner (ie. broadly)

s14 Right to Interpreter

-foregin anguage or deaf persons, incl witnesses, in any proceedings.
also exists in Bill of R (excpt deaf); CL principles of nat justice; and stat right in CC
(accused cannot be considered “present” if he/she cant be understood)

-judge should pro-actively facilitate an interpreter

R v Tran - Standard of Interpretation:

continuity; precision; imparitality; competence and contemporaneousness

*not going to apply where accused's vital interests not involved (eg scheduling)
*applies to civil/criminal/admin tribunal proceedings

R v Tran – The standard failed during witness testimony on:

− continuity – break in translating during defence evidence;
− precision – summaries not conveying all that was said
− contemp – transl did not occur at same time ques asked and same time answer
given
*not relevant that it was defence's own witness

Governemnt
s16 Charter right to equal status of Fr and Eng in all instit of Parlt and Govt of Can
and NB
(this is a minimal reqt and s16(3) auth Fedl govt to create more lang rights)

s20 Charter right to communicate w/ govt in Fr or Eng, applies to:

1. any head/control office of Instit of Parlt
2. other offices if:
a) significant demand or
b) nature of office reasonably requires it

Des Rocher – Must provide equal services to minority language speakers =

substantive equality, not mere formality.

Acadiens case – RCMP subj to s20 – Fedl Instit, but also subj to Provl reqts when
contracted by them – in N.B. s20(2) meant that P entitled to Fr communication
from RCMP officer who gave her a ticket.
Commerce:
Lang rights n/a in private sector
-but a stat lang reqt may offend freedom of expr – if either lang is imposed on a
commercial entity

Ford v Que – Que's reqt that all signs be in French – disprop measure not saved by
s1)
In that case stat permitted French only, but in -
Devine v Que – the court pointed out that “Freedom” = absence of compulsion
not just absence of restraint. In that case Eng also permitted – still infringed
Charter right (although in that case – it was saved by s1 because the purp was
important, namely preservation of Fr)

Education
s93 of the 1867 Act --> provl power over edu incl power to prescribe lang of edu
note any rights enjoyed by a priv/denominational school at time of Confed
remained in force

Mackell case – RC schools in Ont spole Fr – if French not a right at time of Confed
then not entrenched by s93 and Ont could make the school teach in Eng

Charter s23 – Minority Language Rights

Who gets them?:
1. Parent living in Que whose mother tongue is Eng or
living outside Que whose mother tongue is French, s23(1)(a);
2. Parent's Language of Instruction was the minority language, s23(1)(b); or
3. A sibling's language of Instruction is the minority language, s23(2)
*numbers must warrant, s23(3)(a), and facilities / programs will vary depending
on those numbers

1. --> mother tongue provision n/a in Que until they choose to adopt it, per s59
2. --> Canada Clause does apply to Que
3. --> Child already instr provision also applies in Que

-Que tried to qualify 2 as only where parent recd instr in Que in the min lang –
SCC struck that down in AG Que v Que Protestant Schools
-Que successfully qualif 3 as only where the other child has recd “major part of
their schooling in Canada – SCC upheld that one in Solski v Que

Arsenault v Cameron – SCC agreed a school should be est for Fr students even
though avg bus ride for Eng students no longer then bus ride to attend nearest
already existing Fr school
SCC held that the purpose of s23 was for Fr lang to be preserved and to flourish –
best achieved by establishing a new school (even though only about 100 would
attend)

Breach of s23
s24(1) affords such remedy as Court considers approp and just in circumst -

Doucet-Boudreau NS judge ordered 5 schools be built, programs of instr be devd

for each, w/deadlines for completion (!) and reporting hearing to assess progress –
upheld by SCC – first time a court provided for judicial supervision for compliance
w/ a s24(1) order.