Constitutional, Federal, Provincial and Territorial Laws

2^nd edition

2017 CanLIIDocs 1

Department of Justice Canada, July 2017

ABSTRACT: The Annotated Language Laws of Canada - Constitutional, Federal, Provincial and Territorial Laws (“Annotated Language Laws of Canada” or “the publication”) is a comprehensive and evergreen legal reference tool. It inventories all constitutional, federal, provincial and territorial legislation and regulations relating, in whole or in part, to the use of language(s) with and within government institutions and in commercial or private activities. The publication covers a large variety of legislative and regulatory provisions and relevant case law excerpts relating to the official languages of Canada, aboriginal languages and the language rights of those who speak neither French nor English. The publication is being made available online progressively, beginning with the Canadian Charter of Rights and Freedoms, which is available as of July 27, 2017 in addition to other constitutional laws, which are available as of October 2017. The other chapters on federal, provincial and territorial laws were completed in January 2018.

CanLII Publishing Data

Authors(s): Official Languages Directorate, Department of Justice Canada

Citation: Annotated Language Laws of Canada - Constitutional, Federal, Provincial and Territorial Laws, 2017 CanLIIDocs 1

Source: Department of Justice Canada

Publication: Montreal, July 2017

Last modification date: July 6, 2018 (please consult the update information for each chapter).

Web accessibility (HTML version): JAWS-tested – July 2017, NVDA-tested – October 2017

Other URL: http://open.canada.ca/data/en/dataset/f17d967a-98c0-454f-a07b-f95d4a2820f1

Information contained in this publication or product may be reproduced, in part or in whole, and by any means, for personal or public non-commercial purposes, without charge or further permission, unless otherwise specified.

You are asked to:

exercise due diligence in ensuring the accuracy of the materials reproduced;

indicate both the complete title of the materials reproduced, as well as the author organization; and

indicate that the reproduction is a copy of an official work that is published by the Government of Canada and that the reproduction has not been produced in affiliation with, or with the endorsement of the Government of Canada.

Commercial reproduction and distribution is prohibited except with written permission from the Department of Justice Canada. For more information, please contact the Department of Justice Canada at: www.justice.gc.ca.

represented by the Minister of Justice and Attorney General of Canada, 2017

ISSN 2561-0376

Cat. No. J12-6E-PDF

Annotated Language laws of Canada —

Constitutional, Federal, Provincial and Territorial laws

Preface by Nathalie E. Drouin, Ad. E., Deputy Minister of Justice and Deputy Attorney General of Canada

Language rights in Canada have always played a major role in the development of this country. They have helped shape Canada and their protection and promotion are fundamental to the development and vitality of our official languages communities.

I am extremely proud of the work done by the Official Languages Directorate of the Department of Justice in publishing the second edition of the Annotated Language Laws of Canada - Constitutional, Federal, Provincial and Territorial Laws. This publication constitutes an updated and expanded version of the 1998 first edition and is available for all Canadians free of charge on CanLII and the Open Government Portal.

From coast to coast to coast, we see examples of language rights in statutory and regulatory provisions designed to protect and promote a linguistic diversity unique to the regions in which they are adopted. From the Inuit Language Protection Act in Nunavut to the Francophone Community Enhancement and Support Act in Manitoba to the First Peoples' Heritage, Language and Culture Act in British Columbia to the Official Languages Act in New Brunswick, legislative efforts have addressed a variety of linguistic realities and needs in Canada.

In addition to annotating legislative provisions relating to the English and French languages, this publication encompasses annotated legislative provisions on aboriginal languages and on other languages.

In 1999, less than a year after the publication of the first edition of the Annotated Language Laws of Canada, the Supreme Court of Canada - in the landmark case of R. v. Beaulac - placed a renewed emphasis on the importance of language rights when it stated that "language rights must in all cases be interpreted purposively, in a manner consistent with the preservation and development of official language communities in Canada" (emphasis in the judgment) and that these rights must be construed "as a fundamental tool for the preservation and protection of official language communities where they do apply" .

I am certain that this unique publication will contribute immensely to the study, reflection and knowledge of language rights in Canada, especially since it is an evergreen tool available online in a bilingual format for all Canadians for free.

In the context of the 150th anniversary of Canada and of the first constitutional language rights, the Department of Justice Canada is proud to provide Canadians with this important legacy.

Nathalie E. Drouin, Ad.E.

Annotated Language Laws of Canada 1

Constitutional, Federal, Provincial and Territorial Laws. 1

I. Publication Structure. 6

II. About the Authors. 7

III. Foreword. 8

IV. Acknowledgments. 9

V. User Guide. 10

VI. Additional Disclaimers. 11

VII. Questions or Comments. 11

Chapter 1: Constitutional Laws. 12

Constitution Act, 1982 – Canadian Charter Provisions. 12

Constitution Act, 1982, Schedule B to the Canada Act 1982 (UK), 1982, c. 11. 12

Constitution Act, 1982 – Other Provisions. 345

Constitution Act, 1982, Schedule B to the Canada Act 1982 (UK), 1982, c. 11. 345

Constitution Act, 1867. 369

Constitution Act, 1867, 30 & 31 Victoria, c. 3 (U.K.) 369

Other Constitutional Laws. 437

Rupert’s Land and North-Western Territory Order (1870) U.K. (Reprinted in R.S.C. 1985, App. II. No. 9) 437

Manitoba Act, 1870, c. 3 (Reprinted in R.S.C. 1985, App. II, No. 8) 443

* * * * * * * * * * * * * * *

The objective of protecting official language minorities […] is realized by the possibility for all members of the minority to exercise independent, individual rights which are justified by the existence of the community. Language rights are not negative rights, or passive rights; they can only be enjoyed if the means are provided. […]

This principle of substantive equality has meaning. It provides in particular that language rights that are institutionally based require government action for their implementation and therefore create obligations for the State [...]. It also means that the exercise of language rights must not be considered exceptional, or as something in the nature of a request for an accommodation. [...]

Language rights must in all cases be interpreted purposively, in a manner consistent with the preservation and development of official language communities in Canada […].

- R. v. Beaulac, [1999] 1 S.C.R. 768 at paras 20, 24 and 25, 1999 CanLII 684 (SCC)

The protection of linguistic minorities is essential to our country. Dickson J. captured the spirit of the place of language rights in the Constitution in Société des Acadiens […]: "Linguistic duality has been a longstanding concern in our nation. Canada is a country with both French and English solidly embedded in its history." As stated by La Forest J. in R. v. Mercure […], "rights regarding the English and French languages . . . are basic to the continued viability of the nation."

As we have already mentioned, the [Canadian] Charter [of Rights and Freedoms] enhanced language rights. The entrenched guarantee of equality in s. 15 and the provisions requiring the respect and protection of aboriginal rights enhanced the protection of the rights of other minorities and the right to be free from discrimination. As the Supreme Court of Canada explained in the Secession Reference […], "There are linguistic and cultural minorities, including aboriginal peoples, unevenly distributed across the country who look to the Constitution of Canada for the protection of their rights."

The principle of respect for and protection of minorities is a fundamental structural feature of the Canadian Constitution that both explains and transcends the minority rights that are specifically guaranteed in the constitutional text. This is an area where, as the Supreme Court of Canada explained in the Secession Reference […], "[a] superficial reading of selected provisions of the written constitutional enactment, without more, may be misleading." This structural feature of the Constitution is reflected not only in the specific guarantees in favour of minorities. It infuses the entire text and, as we have explained, plays a vital role in shaping the content and contours of the Constitution's other structural features: federalism, constitutionalism and the rule of law, and democracy.

- Lalonde v. Ontario (Commission de restructuration des services de santé), 2001 CanLII 21164 (ON CA) at paras. 112-4

* * * * * * * * * * * * * * *

I. Publication Structure

1. CONSTITUTIONAL LAWS

2. FEDERAL LAWS

3. BRITISH COLUMBIA

4. ALBERTA

5. SASKATCHEWAN

6. MANITOBA

7. ONTARIO

8. QUEBEC

9. NEW BRUNSWICK

10. NOVA SCOTIA

11. PRINCE EDWARD ISLAND

12. NEWFOUNDLAND AND LABRADOR

13. YUKON

14. NORTHWEST TERRITORIES

15. NUNAVUT

II. About the Authors

This update and expansion of the Annotated Language Laws of Canada is the work of the Official Languages Directorate (OLAD) of the Department of Justice Canada (Department of Justice). The following OLAD members have produced this second edition of the publication:

Michel Francoeur, Director and General Counsel

Renée Soublière, Senior Counsel and Litigation Coordinator

Isabelle Palad, Analyst and Project Co-Manager

Helen Kneale, Legal Counsel and Project Co-Manager

Rana El-Khoury, Legal Counsel

Stephanie Melski, Paralegal and responsible for updates

Alison Williams, Legal Assistant

The following members of OLAD, current and former, have also contributed to the second edition at different moments in the past years:

Michael Aquilino, Legal Counsel

Daniel Wirz, Legal Counsel

Diane Brazeau, Legal Assistant

Chadia Brahim, Paralegal

Anne-Marie Duquette, Legal Counsel

Richard Keswick, Legal Counsel

Christine Lemaire, Legal Counsel

Claude Imbeau, Legal Counsel

Sylvie Paquette, Paralegal

Carolina Mingarelli, Deputy Director and Senior Counsel

Leeda Tahiri, Administrative Assistant

Marie-Ève Bélair, Legal Assistant Intern

Kaitlyn Chiasson, Student Analyst

Breanne Lavallée-Heckert, Law Student

From 1996 to 1998, the following members of the Official Languages Law Group (now the Law Team in OLAD) of the Department of Justice produced the first edition of the publication (1998):

Michel Francoeur, Manager and Senior Counsel

Alain Tremblay, Project Manager

Bruno Thériault, Legal Counsel

Alexandre Larouche, Legal Counsel

Liliane Marcil, Administrative Assistant

III. Foreword

First Edition (1998)

The first edition of this publication was written and published in 1998 as part of the National Symposium on Canada’s Official Languages. The event commemorated the tenth anniversary of the coming into force of the second Official Languages Act of Canada (1988) – the first federal Official Languages Act came into force in 1969 and was repealed in 1988 – and the twentieth anniversary of the enactment of the main linguistic provisions of the Criminal Code (section 530 – Language of Accused) in 1978.

The first edition, undertaken by the Department of Justice in co-operation with the Department of Canadian Heritage, contained not only the federal Official Languages Act and the Criminal Code but also almost all other Canadian language laws – i.e. constitutional, federal, provincial and territorial legislation (398 laws in total) relating, in whole or in part, to the use of language(s) with and within government institutions and in commercial or private activities.

For each of these laws, the publication reproduced relevant case law excerpts and references (331 in total). However, for administrative and financial reasons, the publication did not reproduce regulations and other delegated legislation adopted pursuant to these laws, with the exception of a few texts, nor did it reproduce provincial and territorial laws related to minority language education. However, section 23 of the Canadian Charter of Rights and Freedoms, which protects minority language educational rights, was reproduced and annotated with the relevant case law.

The objective of the publication was to enable jurists and non-jurists to achieve a better understanding of the legal principles applicable to language rights in Canada. It was published in a paper version only, and 2,000 copies were distributed free of charge.

Second Edition (2017)

This second edition of the Annotated Language Laws of Canada is published in 2017 in commemoration of the 150^th anniversary of Canada and the first constitutional language rights in Canada, which were entrenched in section 133 of the Constitution Act, 1867.

Since the publication of the first edition in 1998, language rights in Canada have evolved considerably. Legislative and judicial developments, notably the Supreme Court of Canada’s landmark decision in R. v. Beaulac, [1999] 1 S.C.R. 768 and the 2005 amendments to Part VII (Advancement of English and French) of the federal Official Languages Act, continue to shape the ways in which language rights are created, implemented and interpreted. To reflect this changing landscape, the Official Languages Directorate of the Department of Justice decided in 2015 to update and expand its scope.

To keep up with new or modified language laws, regulations and case law in Canada, this second edition is an evergreen reference tool that is available online and free of charge for all Canadians. Its content will be updated regularly based on the frequency of case law and legislative activity.

The objective of the publication remains the same as that of the first edition (1998): to enable jurists and non-jurists to achieve a better understanding of the legal principles applicable to language rights in Canada. Additionally, the authors have endeavoured to provide an exhaustive compilation of relevant language legislation, regulations, and case law excerpts that encompasses not only official languages rights, but also aboriginal language rights and the rights of those who speak neither French nor English. It is important to mention that legislative texts and case law excerpts relating to official languages law inventoried in the publication have tripled since 1998.

The authors hope therefore that this publication, as a whole, will provide readers with a better understanding of the scope and magnitude of language rights issues. Going well beyond constitutional language rights entrenched in section 133 of the Constitution Act, 1867, section 23 of the Manitoba Act, 1870, and sections 16 to 23 of the Canadian Charter of Rights and Freedoms, this publication illustrates how language issues cut across a panoply of fields regulated by statutes or regulations: criminal law, administrative law, family law, labour and employment law, immigration and citizenship law, aboriginal law, commercial law, aviation law, natural resources, broadcasting, health care, and so on. May our readers enjoy exploring the innovative – and sometimes unexpected – manifestations of language rights issues rooted in everyday life.

IV. Acknowledgments

The authors wish to thank Laurie C. Wright, Assistant Deputy Minister (Public Law and Legislative Services Sector) of the Department of Justice, for her support to this project.

The project brought together a number of key partners who collaborated on the format, structure and technical assistance associated with this online publication. The authors would like to express their appreciation to the following people from the Department of Justice for their contributions: Dugald Topshee, Anne-Murielle Hassan and Marc Bernard from the Information Solutions Branch of the Department of Justice; Karine Briand from the Communications Branch of the Department of Justice; Deborah MacNair, Corporate Counsel of the Department of Justice; and Ashley Casovan and Alannah Hilt from the Treasury Board Secretariat of Canada.

The authors also want to thank the Translation Bureau for handling the translation services required for this project.

The authors also wish to sincerely thank Xavier Beauchamp-Tremblay, President of CanLII and Frédéric Pelletier, Ivan Mokanov and Maude Adam from Lexum Inc. for their exemplary collaboration from the beginning to the end of this publication.

The authors would like to express their appreciation to the following people for their comments: Julie Blackhawk, Senior Counsel, Aboriginal Affairs Portfolio, Department of Justice Canada, Mike Reddy, Director, Legislation Division, Department of Justice (Northwest Territories), Mark Aitken, Assistant Deputy Minister, Department of Justice (Northwest Territories), Sandra Schnell, Senior Legislative Crown Counsel, Legislative Drafting Branch, Ministry of Justice (Saskatchewan), Stephen P. Shaddock, Acting Director, Policy and Planning, Department of Justice (Nunavut), Erin George, Legislative Counsel, Department of Justice (Nunavut), Sheri Hogeboom, Legislative Counsel, Legislative Counsel Office, Department of Justice (Yukon), Robert Deschênes, avocat, Direction générale de l’accès à la justice, Direction des orientations et politiques, ministère de la Justice (Québec), Deborah Carlson, Constitutional Law Section, Legal Services Branch, Manitoba Justice and Philip Samyn, Crown Counsel (Legislation), Manitoba Justice.

Finally, the authors would like to thank WestlawNext©Canada, Thomson Reuters Canada Limited, as well as LexisNexis Canada, Inc. for their support to this project.

V. User Guide

Wherever possible, the authors have incorporated hyperlinks into the titles of judgments, laws and regulations, allowing the reader to consult the full version of a reference in CanLII. Such titles are reproduced in the style and form of the CanLII referencing system.

In terms of legislation, only the current version of a provision is featured in the publication. When significant legislative amendments have been made to a provision, annotations may be divided under separate headings. In Chapter 2: Federal Laws, for instance, the annotations for subsection 530(3) of the Criminal Code feature a separate heading for “Case Law Subsequent to the 2008 Amendments”.

Separate headings are also used in some cases to group together case law excerpts sharing a common theme or legal question. An example is Chapter 1: Constitutional Laws, where the annotations for section 1 of the Canadian Charter of Rights and Freedoms are subdivided into headings corresponding to the Charter provisions that were allegedly infringed.

When a provision is repeated across several laws or regulations, such laws or regulations may be grouped into a distinct category of language provisions. For example, in Chapter 8: Quebec, under the annotations for the Professional Code, C.Q.L.R. c. C-26, a list of regulations governing professional orders in Québec is provided. These regulations use similar wording for provisions that allow for a professional exam to be taken in French or English.

Explanatory notes, identified by “N.B.”, are integrated throughout the publication to provide the reader with supplementary information on the history or the status of a judgment, or to provide a disclaimer regarding the scope of annotations in a given chapter. The following is an example of an explanatory note:

N.B. – This judgment is currently under appeal before the Quebec Court of Appeal. See also the trial judgment: Quebec (Attorney General) v. 156158 Canada Inc. (Boulangerie Maxie's), 2015 QCCQ 354 (CanLII).

Legislative and regulatory provisions are reproduced in the language(s) in which they were enacted whereas case law excerpts are provided in both English and French. Unilingual case law excerpts have been translated for the reader’s convenience only and do not constitute official translations of unilingual judgments.

Translations are identified at the beginning of a case excerpt by [OUR TRANSLATION] in English and [NOTRE TRADUCTION] in French.

Wherever possible, the authors respect the authenticity of the reproduced texts in the publication. In the rare case of a typographical or clerical error within a case law excerpt noted by the authors, “(sic)” may be indicated within the text. Abbreviations or acronyms are also spelled out and indicated between square brackets, as illustrated below:

[34] Where both UPSs [unsubsidized private schools] and special authorizations issued by the province are concerned, the children are in fact receiving or have in fact received instruction in English and fall, in principle, within the categories of rights holders under s. 23(2). […]

- Nguyen v. Quebec (Education, Recreation and Sports), [2009] 3 SCR 208, 2009 SCC 47 (CanLII)

To keep the content of the publication as concise as possible, the authors use ellipses […] in both legislative provisions and case law excerpts to represent omitted paragraphs or sentences.

VI. Additional Disclaimers

Readers should note that the individual chapters of Annotated Language Laws of Canada are date-stamped to indicate their most recent updates. In addition, while the content of the publication is updated regularly, it does not have official status. The reader is therefore encouraged to consult the official version of any law, regulation or judgment that is reproduced in the publication. Unilingual case law excerpts have been translated for the reader’s convenience only and do not constitute official translations of unilingual judgments. Moreover, the publication constitutes neither a legal opinion nor a legal position of the Department of Justice Canada.

Ontario statutes, regulations, judicial decisions and decisions of the Human Rights Tribunal of Ontario are reproduced with the permission of the Queen’s Printer for Ontario and are unofficial versions of Government of Ontario legal materials, © Queen's Printer for Ontario, 2017.

The laws, regulations and orders in council of Québec are reproduced with the authorization of the Québec Official Publisher and are not official versions; readers are encouraged to consult the official version.

The laws and regulations of Manitoba are reproduced with the authorization of the Manitoba government and do not constitute official versions and are subject to change without notice. Readers are encouraged to consult the official versions on the Manitoba Laws website: http://web2.gov.mb.ca/laws/search3.php.

Prince Edward Island legislation is published by authority of the office of the Queen's Printer, Charlottetown.

Saskatchewan legislation is used with permission of the Queen’s Printer on behalf of the Government of Saskatchewan in right of Her Majesty the Queen, 2017.

Alberta legislation is reproduced with permission of the Queen’s Printer for Alberta, © Alberta Queen's Printer, 2017.

Legislation from British Columbia is reproduced with permission and these materials contain information that has been derived from information originally made available by the Province of British Columbia at: http://www.bclaws.ca/ and this information is being used in accordance with the Queen's Printer License – British Columbia available at: http://www.bclaws.ca/standards/2014/QP-License_1.0.html. They have not, however, been produced in affiliation with, or with the endorsement of, the Province of British Columbia and THESE MATERIALS ARE NOT AN OFFICIAL VERSION.

VII. Questions or Comments

If you have any questions or comments, feel free to contact the Official Languages Directorate of the Department of Justice Canada by email at olad-dlo@justice.gc.ca.

Chapter 1: Constitutional Laws

Constitution Act, 1982 – Canadian Charter Provisions

Constitution Act, 1982, Schedule B to the Canada Act 1982 (UK), 1982, c. 11

Part I – Canadian Charter of Rights and Freedoms

Guarantee of Rights and Freedoms (section 1)

1. Rights and freedoms in Canada

1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

Annotations for section 1 dealing with an alleged breach of Subsection 2(b) of the Canadian Charter of Rights and Freedoms

Devine v. Quebec (Attorney General), [1988] 2 S.C.R. 790, 1988 CanLII 20 (SCC)

[24] It remains to be considered whether the limit imposed on freedom of expression by the challenged provisions of the Charter of the French Language, which require the use of French while at the same time permitting the use of another language, is justified under s. 1 of the Canadian Charter of Rights and Freedoms and s. 9.1 of the Quebec Charter. The section 1 and s. 9.1 materials submitted by the Attorney General of Quebec in justification of the challenged provisions were considered in Ford. For the reasons there stated, legislation requiring the exclusive as opposed to the predominant use of French is not justified under s. 1 or s. 9.1. Section 58 of the Charter of the French Language, as was shown in Ford, does require exclusive use of French and therefore does not survive s. 9.1 scrutiny. For the reasons given in that case the requirement of either joint or predominant use is justified under s. 9.1 and s. 1.

[…]

[27] The remaining sections, 52 and 57 [of the Charter of the French Language], if they are preserved, neither cause unintended results in the overall legislative scheme, nor conflict with s. 2(b) of the Canadian Charter or s. 3 of the Quebec Charter as interpreted in Ford. Their subsistence does not cause unintended results because they are not dependent on s. 58 for their meaning, as were ss. 59, 60 and 61. Similarly, their continued existence does not infringe either Charter because, while ss. 52 and 57 provide for the publication of such items as catalogues, brochures, order forms and invoices in French, they do not require the exclusive use of French. Section 89 makes it clear that where exclusive use of French is not explicitly required by the Act, the official language and another language may be used together. Following the reasons in Ford, permitting joint use passes the scrutiny required by s. 1 of the Canadian Charter and s. 9.1 of the Quebec Charter. The rational connection between protecting the French language and assuring that the reality of Quebec is communicated through the "visage linguistique" by requiring signs to be in French was there established. The same logic applies to communication through such items as brochures, catalogues, order forms and invoices, and the rational connection is again demonstrated. Sections 52 and 57 are therefore sustainable under s. 9.1 of the Quebec Charter, and s. 57 -- the only one of the two subject to the Canadian Charter -- is sustainable thereunder by virtue of s. 1. It now remains to discuss whether ss. 52 and 57 are contrary to s. 10 of the Quebec Charter, and whether s. 57 is contrary to ss. 15 and 1 of the Canadian Charter.

[…]

[31] This leaves the question as to whether s. 57 is contrary to ss. 15 and 1 of the Canadian Charter. Section 15 of the Canadian Charter was invoked by the appellant only before this Court, although the Attorney General of Quebec did agree that constitutional questions be stated and that s. 15 should be in issue. Nevertheless, we do not have the benefit of reasons from the Court of Appeal or from the Superior Court interpreting the application of s. 15 to s. 57. Nor has this Court yet rendered any judgment interpreting the meaning of s. 15. It is not necessary in this case to discuss whether s. 57 is prima facie in breach of s. 15. We have already determined that it is prima facie in breach of s. 2(b). The only question that remains to be answered is whether the application of s. 1 would be any different if there were a prima facie breach of s. 15 in this case. More specifically, the question becomes whether the proportionality test laid down in R. v. Oakes, 1986 CanLII 46 (SCC), [1986] 1 S.C.R. 103, and restated by Dickson C.J. in R. v. Edwards Books and Art Ltd., 1986 CanLII 12 (SCC), [1986] 2 S.C.R. 713, would yield a different result in this case if the prima facie breach in issue were a breach of the rights guaranteed under s. 15. We have already determined that the requirement of joint use of French is rationally connected to the legislature's pressing and substantial concern to ensure that the "visage linguistique" of Quebec reflects the predominance of the French language. Does this requirement impair as little as possible the right to equality before and under the law and the right to equal protection and benefit of the law without discrimination? Is it designed not to trench on that right so severely that the legislative objective is nevertheless outweighed by the abridgment of rights? By ensuring that non-francophones can draw up application forms for employment, order forms, invoices, receipts and quittances in any language of their choice along with French, s. 57, read together with s. 89, creates, at most, a minimal impairment of equality rights. Although, as the appellant contended, the requirement of joint use of French might create an additional burden for non-francophone merchants and shopkeepers, there is nothing which impairs their ability to use another language equally. Thus, the conclusion we have reached with respect to the operation of s. 1 stands even if the prima facie breach of the Canadian Charter at issue is a breach of s. 15.

Ford v. Québec (Attorney General), [1988] 2 S.C.R. 712, 1988 CanLII 19 (SCC)

[73] The section 1 [of the Canadian Charter] and s. 9.1 [of the Quebec Charter] materials establish that the aim of the language policy underlying the Charter of the French Language was a serious and legitimate one. They indicate the concern about the survival of the French language and the perceived need for an adequate legislative response to the problem. Moreover, they indicate a rational connection between protecting the French language and assuring that the reality of Quebec society is communicated through the "visage linguistique". The section 1 and s. 9.1 materials do not, however, demonstrate that the requirement of the use of French only is either necessary for the achievement of the legislative objective or proportionate to it. That specific question is simply not addressed by the materials. Indeed, in his factum and oral argument the Attorney General of Quebec did not attempt to justify the requirement of the exclusive use of French. He concentrated on the reasons for the adoption of the Charter of the French Language and the earlier language legislation, which, as was noted above, were conceded by the respondents. The Attorney General of Quebec relied on what he referred to as the general democratic legitimacy of Quebec language policy without referring explicitly to the requirement of the exclusive use of French. In so far as proportionality is concerned, the Attorney General of Quebec referred to the American jurisprudence with respect to commercial speech, presumably as indicating the judicial deference that should be paid to the legislative choice of means to serve an admittedly legitimate legislative purpose, at least in the area of commercial expression. He did, however, refer in justification of the requirement of the exclusive use of French to the attenuation of this requirement reflected in ss. 59 to 62 of the Charter of the French Language and the regulations. He submitted that these exceptions to the requirement of the exclusive use of French indicate the concern for carefully designed measures and for interfering as little as possible with commercial expression. The qualifications of the requirement of the exclusive use of French in other provisions of the Charter of the French Language and the regulations do not make ss. 58 and 69 any less prohibitions of the use of any language other than French as applied to the respondents. The issue is whether any such prohibition is justified. In the opinion of this Court it has not been demonstrated that the prohibition of the use of any language other than French in ss. 58 and 69 of the Charter of the French Language is necessary to the defence and enhancement of the status of the French language in Quebec or that it is proportionate to that legislative purpose. Since the evidence put to us by the government showed that the predominance of the French language was not reflected in the "visage linguistique" of Quebec, the governmental response could well have been tailored to meet that specific problem and to impair freedom of expression minimally. Thus, whereas requiring the predominant display of the French language, even its marked predominance, would be proportional to the goal of promoting and maintaining a French "visage linguistique" in Quebec and therefore justified under the Quebec Charter and the Canadian Charter, requiring the exclusive use of French has not been so justified. French could be required in addition to any other language or it could be required to have greater visibility than that accorded to other languages. Such measures would ensure that the "visage linguistique" reflected the demography of Quebec: the predominant language is French. This reality should be communicated to all citizens and non-citizens alike, irrespective of their mother tongue. But exclusivity for the French language has not survived the scrutiny of a proportionality test and does not reflect the reality of Quebec society. Accordingly, we are of the view that the limit imposed on freedom of expression by s. 58 of the Charter of the French Language respecting the exclusive use of French on public signs and posters and in commercial advertising is not justified under s. 9.1 of the Quebec Charter. In like measure, the limit imposed on freedom of expression by s. 69 of the Charter of the French Language respecting the exclusive use of the French version of a firm name is not justified under either s. 9.1 of the Quebec Charter or s. 1 of the Canadian Charter.

156158 Canada inc. c. Attorney General of Quebec, 2017 QCCA 2055 (CanLII)

[103] In 1988, the Supreme Court of Canada in Ford declared, in obiter dictum, that “requiring the predominant display of the French language, even its marked predominance”, would be justified under s. 1 of the Canadian Charter and s. 10 of the Quebec Charter. The Court proposed two constitutionally valid alternatives to requiring the exclusive use of French. First, “French could be required in addition to any other language”. Second, French “could be required to have greater visibility than that accorded to other languages.”

[104] The Supreme Court in Ford decided that each alternative — the joint display of French or the predominant display of French — satisfied the Oakes test under both the Canadian Charter and the Quebec Charter.

[…]

[108] The infringement of freedom of expression is provided by law and thus permitted by s. 1 of the Canadian Charter and s. 9.1 of the Quebec Charter.

[…]

[110] The legislature’s choice of how to require the joint or “markedly predominant” display of French does not raise a new legal issue in the sense of Bedford and Carter. The Court in Ford clearly indicated that both alternatives satisfied s. 1 of the Canadian Charter and s. 9.1 of the Quebec Charter. There have been no significant developments in the law on this issue since Ford. Also, and as addressed above, the judge of the Court of Quebec found on the facts that no fundamental change in the status of the French language had occurred in Quebec since Ford and Devine and on review, the judge of the Superior Court found no error in such determination. In turn, I find no error in the opinion of the judge of the Superior Court.

N.B. – Application for leave to appeal has been filed with the Supreme Court of Canada on February 19, 2018.

Galganov v. Russell (Township), 2012 ONCA 409 (CanLII)

[2] The by-law in issue, no. 49-2008, (the “By-law”) requires the content of any new exterior commercial signs to be in French and in English, although the actual name of a business may be unilingual.

[…]

[5] The issues on this appeal are: (1) whether Galganov has standing to apply to quash the By-law; (2) whether the By-law is ultra vires the Township’s authority; (3) if intra vires, (a) whether the By-law infringes freedom of expression as guaranteed by s. 2(b) of the Charter and, (b) if there is an infringement, whether the limit on freedom of expression is justified under s. 1 of the Charter.

[…]

[7] I would also dismiss Brisson’s appeal. I agree with the application judge’s conclusion that the Township had the authority to pass the By-law. Insofar as the issue of whether Brisson’s right to freedom of expression under s. 2(b) of the Charter is infringed, I am of the opinion that the application judge erred in concluding that there was no infringement. However, I conclude that this infringement is justified under s. 1 of the Charter.

[…]

[61] Having regard to the Supreme Court’s holdings in Ford and Devine, by compelling the use of both French and English on new exterior commercial signs, the By-law’s purpose infringes Brisson’s right to freedom of expression as guaranteed by s. 2(b) of the Charter. I must now consider whether such infringement is justified under s. 1 of the Charter.

[…]

(i) Whether the By-law serves an objective that is sufficiently important

[…]

[67] The evidence before the court, concerning the social well-being of the municipality, discussed under the authority to enact the By-law in (2)(b)(ii) above, establishes the importance of the purpose the By-law addresses – the preservation and enhancement of the equality of the status of the French language in the Township, a municipality which has chosen to designate itself as bilingual under the French Language Services Act and to offer its services to residents in both languages. The objective of the By-law, the promotion of the equality of status of both French and English, the official languages of Canada, is a pressing and substantial one.

[68] Accordingly, the By-law meets the first criterion of s. 1 of the Charter.

(ii) Whether the By-law meets the proportionality test in the second criterion

[69] Having found that the By-law meets the first criterion, the next question is whether the means used are reasonable and demonstrably justified by applying the proportionality test in the second criterion.

[…]

[75] The application judge had before her evidence that French was, in 2006, the first language learned of 45.5 per cent of the Township’s population, English was the first language learned of 50.3 per cent of that population and 4.2 per cent of the population had another first learned language. Although the total number of Francophones in the Township increased, the evidence of Dr. Castonguay, an expert who is a retired University of Ottawa mathematics professor and has published extensively on linguistic assimilation, is that the proportion of French speakers is decreasing because of linguistic assimilation. Overall, Dr. Breton, a sociologist whose focus is on linguistic and cultural minorities, and Dr. Choquette, an expert on the history of Franco-Ontarians, say that the French population in Ontario and elsewhere in Canada is decreasing. In order to preserve the French language, a linguistic environment is necessary. The material that the application judge did accept indicated a rational connection between protecting the equal status of the French language and assuring that the reality of Quebec society is communicated through the “visage linguistique” as discussed by the Supreme Court in Ford.

[…]

[77] Similarly, the joint use of French and English is rationally connected to the Township’s concern of ensuring that its bilingual nature is reflected on exterior commercial signs.

[78] I also note that deference to the government’s choice is also owed at the rational connection stage: see Lavoie v. Canada, 2002 SCC 23 (CanLII), [2002] 1 S.C.R. 769, at para. 59. Given the evidence of the symbolic importance of affirming the equal status of the two official languages, there is a rational connection between the By-law and the furtherance of the equal status of French and English as well as the preservation of French more generally.

[…]

[81] The process undertaken by the Township prior to the enactment of the By-law involved consultation with the public and consideration of other alternatives. It resulted in a By-law that applied only to new, exterior and commercial signs. In Montréal (City) v. 2952-1366 Québec Inc., 2005 SCC 62 (CanLII), [2005] 3 S.C.R. 141, at para. 94, the court observed:

First, in dealing with social issues like this one, where interests and rights conflict, elected officials must be accorded a measure of latitude. The Court will not interfere simply because it can think of a better, less intrusive way to manage the problem. What is required is that the City establish that it has tailored the limit to the exigencies of the problem in a reasonable way.

[82] In tailoring the By-law as it did, the Township has established that it dealt with the problem in a way that minimally impairs freedom of expression.

[83] One must also recall the specific facts of this case. The argument that, Brisson’s freedom of expression is more than minimally impaired by requiring the description of his services on his new French only sign to also be in English, loses much of its force having regard to the following facts: the name of Brisson’s business, “Independent Radiator Services”, is unilingually English, and is entitled to remain so; for most of the 34 years Brisson has been in business the content of his sign has been in English only; and he continues to hand out business cards and invoices in English. Thus, in the past, Brisson has chosen to express himself only in English; he now chooses to express himself only in French on his exterior sign while continuing to employ English in other aspects of his business. To require him to employ English on his sign in addition to French is a minimal impairment of his right to freedom of expression.

[84] Having passed the minimum impairment stage, the final question asks whether the infringing effects of the By-law outweigh the importance of the objective sought. Brisson has not advanced any arguments on this aspect of the Oakes test. In light of the importance of the protection and promotion of the equal status of the French language, I would hold that the benefits of the By-law are proportional to any deleterious effect on freedom of expression or inconvenience suffered.

[85] For these reasons, although the By-law is a breach of Brisson’s rights under s. 2(b) of the Charter, it is a breach that is demonstrably justified in a free and democratic society under s. 1 of the Charter.

Entreprises W.F.H. Ltée v. Québec (Attorney General), 2001 CanLII 17598 (QC CA) [judgment available in French only]

[OUR TRANSLATION]

[45] In 1988, the Supreme Court declared in obiter, that is, even though it was not necessary to do so to support its decision, that requiring the predominant display of the French language, even its marked predominance, would be proportional to the goal of promoting and maintaining a French “visage linguistique” in Quebec and therefore justified under the Quebec Charter and the Canadian Charter. The Supreme Court went so far as to specifically say, in Ford, that French could be required in addition to any other language or could be required to have greater visibility than that accorded to other languages.

[46] I am of the opinion that s. 58, in its current form, simply repeats the guidelines laid down by the Supreme Court. I am also of the opinion that, in light of the evidence submitted to the Supreme Court in 1988, a provision such as the current s. 58 would have withstood a challenge based on the right to freedom of expression and the right to equality and would not have been declared of no force or effect.

[47] It is readily apparent that, for the same answer to apply today, given that the Attorney General of Quebec has chosen not to adduce evidence to establish that the provision is justified under s. 1 of the Canadian Charter and s. 9.1 of the Quebec Charter of human rights and freedoms, we must be able to conclude that the obiter dictum from Ford has the same force as if it were part of the ratio decidendi and that the burden of proof is therefore on the appellant to prove the absence of justification.

[...]

[58] I find in this case that the Supreme Court’s obiter dictum in Ford carries the same weight as if it were part of the ratio decidendi and is therefore binding on the Court of Appeal. Indeed, it is clear from an analysis of Ford and Devine that the Supreme Court weighed the impact of its conclusions on the sensitive issue of the language of signage in Quebec and wanted to resolve it. The formulation of the marked predominance rule was certainly not just an isolated phrase whose repercussions would not have been foreseen.

[...]

[61] The burden was therefore on the appellant to establish that the situation revealed by the documents considered by the Supreme Court in 1988 had changed to the point that the measure could no longer be justified in 1999. It did present some evidence, but the judge of the Superior Court did not accept it. It declined the invitation to give full evidence, arguing that the burden of proof remained on the shoulders of the Attorney General. It wanted to present evidence before the Court of Appeal, but leave was refused for the reason already given. This is the framework in which the appellant’s grievances must be considered.

[62] It is appropriate to bear in mind the case that must be met to establish that a limit is reasonable and can be demonstrably justified in a free and democratic society.

[63] To this end, Oakes, above, established at pp. 138 and 139 that the objective to be served by the limiting measure must be of sufficient importance to warrant overriding a constitutionally protected right or freedom and that the party invoking s. 1 must show the means to be reasonable and demonstrably justified. This involves “a form of proportionality test” involving three components:

First, the measures adopted must be carefully designed to achieve the objective in question. They must not be arbitrary, unfair or based on irrational considerations. In short, they must be rationally connected to the objective. Second, the means, even if rationally connected to the objective in this first sense, should impair “as little as possible” the right or freedom in question: R. v. Big M Drug Mart Ltd., supra, at p. 352. Third, there must be a proportionality between the effects of the measures which are responsible for limiting the Charter right or freedom, and the objective which has been identified as of “sufficient importance”.

[...]

[65] Since the appellant has the burden of proof in this case, it had to establish that the measure is no longer justified within the meaning of s. 1 of the Canadian Charter and s. 9.1 of the Quebec Charter.

[66] I have already stated that the Supreme Court concluded in Ford that the evidence showed that the aim of the language policy underlying the Charter of the French language was a serious and legitimate one, and that it indicated a rational connection between protecting the French language and assuring that the reality of Quebec society is communicated through the visage linguistique.

[...]

[68] I see no merit in the appellant’s argument that the Supreme Court never submitted the general objective of the Charter of the French language to the proportionality test set out in Oakes. On the contrary, the Supreme Court’s obiter in Ford proposes a clause that meets all the requirements of Oakes and Sharpe.

[...]

[88] I share the opinion of the Superior Court judge that stare decisis applies to Devine, and he properly directed himself in law in concluding that, assuming that s. 58 in its current form infringes subsection 15(1) of the Canadian Charter and s. 10 of the Quebec Charter, the infringement is justified under s. 1 and s. 9.1.

[...]

[117] I am of the opinion that s. 58 of the Charter of the French language, enacted by the Quebec government in accordance with the principles set out by the Supreme Court in Ford and Devine, is a valid provision, and that the appellant has not presented any relevant evidence that would have allowed the Superior Court to revise its conclusions regarding the language of public signage and commercial advertising in Quebec.

Annotations for section 1 dealing with an alleged breach of section 3 of the Canadian Charter of Rights and Freedoms

Reference re the Final Report of the Electoral Boundaries Commission , 2017 NSCA 10 (CanLII)

[1] This is a Reference. The Court is asked (1) whether the abolition, in 2012, of the former provincial electoral ridings of Clare, Argyle and Richmond infringed s. 3 of the Canadian Charter of Rights and Freedoms and, if so, (2) whether the infringement is justified under s. 1 of the Charter.

[…]

[133] Section 3 requires that electoral boundaries reflect effective representation. The determination involves a balance of voter parity and countervailing criteria. The applicable countervailing criteria vary with the circumstances. For Clare, Argyle and Richmond, criteria that were noted in Carter and are reasonably worthy of consideration, include minority representation and cultural identity.

[…]

[135] We do not state that s. 3 of the Charter requires that there be protected ridings in Clare, Argyle and Richmond. Rather, under s. 3, the body that is authorized by law to craft the electoral boundaries must be allowed to balance the constitutional criteria as set out by the majority’s reasons in Carter, and to express its view on the matter.

[136] The Attorney General’s intervention on June 14, 2012 prevented the Commission from performing the balance, and from expressing its authentic view of effective representation for electors in Clare, Argyle and Richmond. Hence the Attorney General’s intervention violated the precepts of s. 3 of the Charter. The violation (1) led directly to the Final Report’s recommendation to eliminate the protected ridings which, in turn, (2) led directly to their abolition in (to quote the wording of Reference Question # 1) “Section 1 of Chapter 61 of the Acts of Nova Scotia 2012 … by which provisions the recommendations tendered by the Electoral Boundaries Commission by its Final Report … to the House of Assembly were enacted”.

[…]

8. Second Question: Is the Infringement Justified under s. 1?

[138] There were no submissions whether the Charter infringement was “prescribed by law” under s. 1. Given our conclusion on proportionality, expressed below, it is unnecessary to comment on that point.

[…]

[145] In the Court’s view, the legislative objective was to implement Carter’s constitutional principles of effective representation in Nova Scotia’s circumstances, with the assistance of an independent commission as contemplated by s. 5 of the House of Assembly Act. This synopsizes the view expressed in the 1992 Commission’s Report that led to the enactment of s. 5 (above, para. 27). This is a pressing and substantial objective.

[146] Next is Oakes’s second branch – proportionality. We need only address the first and second tests: rational connection and minimal impairment.

[…]

[152] The point is: under s. 5 of the House of Assembly Act, the majority Government always controls the content of the eventual enactment that fixes electoral boundaries. Despite anything in the Commission’s reports, by following s. 5 and House legislative procedures, the majority Government could enact the abolition of protected ridings in Clare, Argyle and Richmond (above, paras. 92-99). That is the process which is rationally connected to the legislative objective.

[153] The legislative objective does not, on the other hand, contemplate that the Attorney General may derail the statutory process by prohibiting the Commission from expressing its view of effective representation and by “voiding” a Report that does so.

[154] There is no rational connection between the Charter infringement and the legislative objective.

(c) Proportionality – Minimal Impairment

[…]

[159] The Attorney General’s “voiding” of the Commission’s Interim Report did not minimally impair the Charter right.

(d) Summary – Question # 2

[160] For each of those two reasons, the infringement fails Oakes’s proportionality test. It is unnecessary to consider the third aspect of proportionality.

[161] Reference Question # 2 asks whether any infringement of s. 3 is justified under s. 1. We answer – No.

Raîche v. Canada (Attorney General), [2005] 1 F.C.R. 93, 2004 FC 679 (CanLII)

[48] The Commission in fact reached the same conclusion. It agreed that there was a community of interest in Acadie-Bathurst, and it was even aware that parity of voting power is not the only consideration in readjusting electoral boundaries. However, it decided that a variance of -21 percent was simply too large, and that despite the existence of a community of interest in Acadie-Bathurst it was necessary to reduce Miramichi's variance from the electoral quota. It therefore transferred the parish of Allardville and part of the parishes of Saumarez and Bathurst to the electoral district of Miramichi.

[49] Because the primary consideration in determining whether a population has effective representation is voter parity, and that a commission does not contravene section 3 of the Charter unless "reasonable persons applying the appropriate principles . . . could not have set the electoral boundaries as they exist", the Court finds that the Commission did not contravene section 3 of the Charter when it decided to transfer the parishes from Acadie-Bathurst to Miramichi.

[50] That decision is reasonable, and accordingly the Commission did not contravene section 3 of the Charter.

Section 1 of the Charter

[51] However, if the Court is in error and the Commission did contravene section 3 of the Charter, the Court does not believe that the decision can be safeguarded by section 1 of the Charter.

[52] The Supreme Court of Canada stated the test for determining whether a Charter violation is safeguarded by section 1 as follows:

The government first must demonstrate that the objective of the legislation is sufficiently pressing and substantial to warrant violating a Charter right. The objectives must be neither "trivial" nor "discordant with the principles integral to a free and democratic society": Oakes, supra, at p. 138. Once this has been established, the government must then demonstrate that the infringement is proportionate, namely, that the legislation is rationally connected to the objective, that it minimally impairs the Charter right in question, and that the salutary benefits of the legislation outweigh the deleterious effects.

[53] Under the test in Oakes, the Court must weigh the rights of the individual and the needs of society. Evidence regarding the needs of society is therefore needed. The respondent, who has the burden of proof offered nothing on this point. Accordingly, it is impossible to do a proper section 1 analysis, and the respondent has failed to show that the violation was justified.

Annotations for section 1 dealing with an alleged breach of section 15 of the Canadian Charter of Rights and Freedoms

Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624, 1997 CanLII 327 (SCC)

[84] I come now to possible justification under s. 1 of the Charter, which reads:

In order to justify a limitation of a Charter right, the government must establish that the limit is “prescribed by law” and is “reasonable” in a “free and democratic society”. In R. v. Oakes, 1986 CanLII 46 (SCC), [1986] 1 S.C.R. 103, this Court set out the analytical framework for determining whether a law constitutes a reasonable limit on a Charter right. A succinct restatement of that framework can be found in the reasons of Iacobucci J. in Egan, at para. 182:

First, the objective of the legislation must be pressing and substantial. Second, the means chosen to attain this legislative end must be reasonable and demonstrably justifiable in a free and democratic society. In order to satisfy the second requirement, three criteria must be satisfied: (1) the rights violation must be rationally connected to the aim of the legislation; (2) the impugned provision must minimally impair the Charter guarantee; and (3) there must be a proportionality between the effect of the measure and its objective so that the attainment of the legislative goal is not outweighed by the abridgement of the right. In all s. 1 cases the burden of proof is with the government to show on a balance of probabilities that the violation is justifiable.

It is not necessary to consider each of these elements in this case. Assuming without deciding that the decision not to fund medical interpretation services for the deaf constitutes a limit “prescribed by law”, that the objective of this decision -- controlling health care expenditures -- is “pressing and substantial”, and that the decision is rationally connected to the objective, I find that it does not constitute a minimum impairment of s. 15(1).

[85] This Court has recently confirmed that the application of the Oakes test requires close attention to the context in which the impugned legislation operates; see Ross v. New Brunswick School District No. 15, 1996 CanLII 237 (SCC), [1996] 1 S.C.R. 825, at para. 78. The Court has also held that where the legislation under consideration involves the balancing of competing interests and matters of social policy, the Oakes test should be applied flexibly, and not formally or mechanistically; see R. v. Keegstra, 1990 CanLII 24 (SCC), [1990] 3 S.C.R. 697, at p. 737, McKinney, supra, Irwin Toy Ltd. v. Quebec (Attorney General), 1989 CanLII 87 (SCC), [1989] 1 S.C.R. 927, at pp. 999-1000, Cotroni, supra, at p. 1489, Committee for the Commonwealth of Canada v. Canada, 1991 CanLII 119 (SCC), [1991] 1 S.C.R. 139, at p. 222 (per L’Heureux-Dubé J.), Egan, supra, at para. 29 (per La Forest J.) and at paras. 105-106 (per Sopinka J.), and RJR-MacDonald Inc. v. Canada (Attorney General), 1995 CanLII 64 (SCC), [1995] 3 S.C.R. 199, at para. 63 (per La Forest J.) and at paras. 127-138 (per McLachlin J.). It is also clear that while financial considerations alone may not justify Charter infringements (Schachter, supra, at p. 709), governments must be afforded wide latitude to determine the proper distribution of resources in society; see McKinney, at p. 288, and Egan, at para. 104 (per Sopinka J.). This is especially true where Parliament, in providing specific social benefits, has to choose between disadvantaged groups; see Egan, at paras. 105-110 (per Sopinka J.). On the other hand, members of this Court have suggested that deference should not be accorded to the legislature merely because an issue is a “social” one or because a need for governmental “incrementalism” is shown; see Egan, at para. 97 (per L’Heureux-Dubé J.) and at paras. 215-16 (per Iacobucci J.). In the present case, the failure to provide sign language interpreters would fail the minimal impairment branch of the Oakes test under a deferential approach. It is, therefore, unnecessary to decide whether in this “social benefits” context, where the choice is between the needs of the general population and those of a disadvantaged group, a deferential approach should be adopted.

[86] At the same time, the leeway to be granted to the state is not infinite. Governments must demonstrate that their actions infringe the rights in question no more than is reasonably necessary to achieve their goals. Thus, I stated the following for the Court in Tétreault‑Gadoury, supra, at p. 44:

It should go without saying, however, that the deference that will be accorded to the government when legislating in these matters does not give them an unrestricted licence to disregard an individual’s Charter rights. Where the government cannot show that it had a reasonable basis for concluding that it has complied with the requirement of minimal impairment in seeking to attain its objectives, the legislation will be struck down.

[87] In the present case, the government has manifestly failed to demonstrate that it had a reasonable basis for concluding that a total denial of medical interpretation services for the deaf constituted a minimum impairment of their rights. As previously noted, the estimated cost of providing sign language interpretation for the whole of British Columbia was only $150,000, or approximately 0.0025 percent of the provincial health care budget at the time. This figure was based on an extrapolation from the services then being provided by the Western Institute for the Deaf and Hard of Hearing in the Lower Mainland area. Although there was little evidence presented of the precise content of this service, it was not suggested that its extension throughout the province would not have fulfilled the requirements of s. 15(1). In these circumstances, the refusal to expend such a relatively insignificant sum to continue and extend the service cannot possibly constitute a minimum impairment of the appellants’ constitutional rights.

[88] The respondents argue, however, that the situation of deaf persons cannot be meaningfully distinguished from that of other non-official language speakers. If they are compelled to provide interpreters for the former, they submit, they will also have to do so for the latter, thereby increasing the expense of the program dramatically and placing severe strain on the fiscal sustainability of the health care system. In this context, they contend, it was reasonable for the government to conclude that they impaired the rights of deaf persons as little as possible.

[89] This argument, in my view, is purely speculative. It is by no means clear that deaf persons and non-official language speakers are in a similar position, either in terms of their constitutional status or their practical access to adequate health care. From the perspective of a patient, there is no real difference between sign language and oral language if there is no ability to communicate with a physician. But from the perspective of the state’s obligations, there may very well be. In the present case, the only relevant constitutional provisions are ss. 15(1) and 1 of the Charter. In a case involving a claim for medical interpretation for hearing patients, in contrast, the analysis would be more complicated. In such a case, it would be necessary to consider the interaction between s. 15(1) and other provisions of the Constitution, specifically those related to the language obligations of governments. Moreover, the respondents have presented no evidence as to the potential scope or cost of an oral language medical interpretation program. It is possible that the nature and extent of any reasonable accommodation required for hearing persons under s. 1 would differ from that required for deaf persons. Thus, any claim for the provision of such a program, whether based on national origin or language as an analogous ground, would proceed on markedly different constitutional terrain than a claim grounded on disability.

[90] Further, it is apparent that deaf persons stand in a special position in terms of their ability to communicate with the mainstream population. As I have discussed, it is extremely difficult for many deaf persons to acquire a high level of proficiency in oral languages, whether in spoken or written form. Moreover, it is apparent that the deaf have particular difficulties in obtaining the service of persons in the community who understand sign language. There is no evidentiary basis from which to assess whether non-official language speakers stand in a similar position. So, without wishing to minimize the difficulties faced by hearing persons whose native tongues are neither English nor French, it is by no means clear that the communications barriers they face are analogous to those encountered by deaf persons. As a result, the success of a potential s. 15(1) claim by members of the latter group cannot be predicted in advance. The possibility that such a claim might be made, therefore, cannot justify the infringement of the constitutional rights of the deaf.

[…]

[94] In summary, I am of the view that the failure to fund sign language interpretation is not a “minimal impairment” of the s. 15(1) rights of deaf persons to equal benefit of the law without discrimination on the basis of their physical disability. The evidence clearly demonstrates that, as a class, deaf persons receive medical services that are inferior to those received by the hearing population. Given the central place of good health in the quality of life of all persons in our society, the provision of substandard medical services to the deaf necessarily diminishes the overall quality of their lives. The government has simply not demonstrated that this unpropitious state of affairs must be tolerated in order to achieve the objective of limiting health care expenditures. Stated differently, the government has not made a “reasonable accommodation” of the appellants’ disability. In the language of this Courts’ human rights jurisprudence, it has not accommodated the appellants’ needs to the point of “undue hardship”; see Simpsons‑Sears, supra, and Central Alberta Dairy Pool, supra.

Entreprises W.F.H. Ltée v. Québec (Attorney General), 2001 CanLII 17598 (QC CA) [judgment available in French only]

[OUR TRANSLATION]

[. . .]

[62] It is appropriate to bear in mind the case that must be met to establish that a limit is reasonable and can be demonstrably justified in a free and democratic society.

[. . .]

[65] Since the appellant has the burden of proof in this case, it had to establish that the measure is no longer justified within the meaning of s. 1 of the Canadian Charter and s. 9.1 of the Quebec Charter.

[. . .]

[88] I share the opinion of the Superior Court judge that stare decisis applies to Devine, and he properly directed himself in law in concluding that, assuming that s. 58 in its current form infringes subsection 15(1) of the Canadian Charter and s. 10 of the Quebec Charter, the infringement is justified under s. 1 and s. 9.1.

[. . .]

Paquette v. Canada , 1987 ABCA 228 (CanLII)

[1] The Attorney General of Canada, prosecuting the accused under the Narcotic Control Act, and the Attorney General of Alberta who intervened in the proceedings, both appeal a decision holding that the unproclaimed provisions of Part XIV.1 of the Criminal Code permitting trials in either official language are in force in Alberta. The issue is whether the failure to proclaim the section in Alberta violates s.15 of the Charter of Rights and Freedoms. […]

[33] The main focus of debate surrounds the questions of whether the legislation roust wrongly discriminate, (as distinct from the more neutral term of differentiate), and at what point the defender of the legislation is driven to s.1.

[34] The discrimination here is a geographical one. This accused would enjoy the rights of Pt. XIV.1 in many parts of Canada, he is denied equality because of the province in which he is charged.

[…]

[40] An extensive review of authorities is found in the judgment of McLachlin, J.A. in Andrews v. The Law Society of British Columbia 1986 CanLII 1287 (BC CA), [1986] 4 W.W.R. 242 (hoard (sic) by the Supreme Court of Canada in June). She proposes a test at p.253:

The ultimate question is whether a fair-minded person, weighing the purposes of legislation against its effects on the individuals advernely affected and giving due weight to the right of the legislature to pass laws for the good of all, would conclude that the legislative means adopted are unreasonable or unfair.

Other useful discussions are found in the judgments of Spencer, J. in the 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), 1985 CanLII 596 (BC SC), 22 D.L.R. (4th) 540 Strayer, J. of the Federal Court, in Smith, Kline and French Laboratories v. A.G. Canada (1986), 1985 CanLII 3151 (FC), 24 D.L.R. (4th) 321 and Hugessen, J. in the appeal of that case. At p.369 Strayer, J. says:

It will be seen that this test is twofold: the ends must be among those broadly legitimate for a government, and the means must be rationally related to the achievement of those ends.

Hugessen. J., for the Federal Court of Appeal rejects that test as not allowing adequate scope for s.1. He does not propose a single test although he says “At the most basic level, the equality rights guaranteed by s.15 can only be the right of those similarly situated to receive similar treatment” (at p.590). He discusses permissible and impermissible grounds for categorization, impermissible requiring resort to s.1 for justification. In Reference Re French in Criminal Proceedings, 1987 CanLII 204 (SK CA), [1987] 5 W.W.R. 577, the majority of the Saskatchewan Court of Appeal concludes that any inequality requires justification under s.1. That approach does not square with our conclusion in Mahe. I have also considered Gold, The Principled Approach to Equality Rights: a Preliminary Inquiry (1982), 4 Supreme Court L. Rev. 131, particularly at 147 and Wakeling and Chipeur, An Analysis of Section 15 of the Charter after the First Two Years, 1987, 25 Alta. L. Rev. 407.

[…]

[49] The Saskatchewan Court of Appeal has also delivered its judgment in Reference Re French in Criminal Proceedings. The majority appears to approve the decision of Halvorson, J. in Re Tremblay in putting the section into effect. The majority concluded that s. 15 applied and that the Crown failed to meet the onus imposed by s.1. It suggests a possible remedy of staying proceedings until the legislation is implemented. The majority observes that equality is essentially comparative, likes are not being treated alike, that those similarly situate are not similarly treated. I not only would not use that test, but could not find that the accused seeking a French trial in Quebec or Ontario is similarly situate i.o the accused seeking it in Alberta. To assume so it to deny the propriety of staged implementation. The majority acknowledges that the inequality arises from the failure to proclaim the section and does not fault staged implementation. It finds French trials can be conducted in the Superior court and that the deficiency in the provincial courts could be appointed from the bars of Saskatchewan or other provinces as permanent or acting judges. I pause to note that I would be hesitant to suggest the appointment of an acting judge as a satisfactory step in Alberta. It then concludes the failure to act, can no longer be justified under s.1. I agree that the executive is under a duty to comply with the Charier (sic), but I do not agree that it has a s.1 onus, nor, more importantly, that its failure can be presumed from short term inaction. The remedy there proposed, approving what Halvorson, J. did, simply denied the Lieutenant Governor in Council an opportunity to act and effectively denied the wisdom of Parliament in providing that time. In Alberta such action is legislative because implementation requires an overriding of the Jury Act.

Reference re French Language Rights of Accused in Saskatchewan Criminal Proceedings , 1987 CanLII 204 (SK CA)

[64] On the whole, therefore, the better view of the matter in our opinion is this: Parliament and the legislatures undoubtedly, by virtue of s. 16(3), possess the power to move official language rights beyond those entrenched in the Charter, but neither, when doing so, is relieved by s. 16(3) of having to respect the fundamental rights and freedoms found elsewhere in the Charter. Such relief as may be available to them under ss. 1 and 33 is, of course, another matter altogether, although one might add that the existence of these sections serves to remove some of the obstacles to official language advancement which, having regard particularly to s. 15, might otherwise be encountered.

[…]

[93] In our respectful view, this case presents another example of how the construction of companion sections of the Bill of Rights and the Charter can differ markedly on account of the presence in the Charter of s. 1. The difference in this instance is that those considerations, having to do with drawing the line between justified and unjustified inequalities, which in Burnshine, Prata and MacKay bore so heavily upon the interpretation of the equality section of the Bill of Rights, now fall for the most part to be addressed in the context of s. 1 of the Charter. The Bill of Rights, of course, contained no equivalent of s. 1 of the Charter.

[…]

[97] However, it is our view that the determination of whether an inequality in the law of the nature contemplated by s. 15(1) is justified or unjustified, having regard for the nature, object and effect of, and perhaps the inspiration for, the act giving rise to it, falls to be made in the context of s. 1 rather than s. 15(1).

[…]

3. The impugned provision: its nature and purpose

[121] The objective of the Criminal Law Amendment Act includes providing accused persons whose language is French with the option, exercisable everywhere in Canada, of being tried in their own language.

[…]

[127] Having regard for the nature and purpose of the impugned law, and for the tests of Oakes, we have no difficulty in concluding that the law, in both purpose and effect, was reasonable and amply justifiable both at its inception — in the light of s. 1(b) of the Canadian Bill of Rights — and on the coming into force of s. 15 of the Charter. And we are satisfied that it continues to enjoy the protection of s. 1 of the Charter. The objective of the law is sufficiently important in our opinion to warrant the override of s. 15, and the means chosen to achieve that objective — empowering the executive to proclaim on a province by province basis — meet each of the components of the proportionality test of Oakes.

[…]

[166] As noted earlier, a transitional provision exists only as a bridge between an old and a new legal order. Once the ground for the new order exists, failure by the executive to make the crossing, so to speak, becomes increasingly inexplicable and difficult to justify — and the longer the failure the greater the difficulty. This is especially so if the criminal law is involved. It is in the light of this, particularly, and the facts of the matter, that the case for justification, in relation to the failure to proclaim in Saskatchewan, encounters difficulty. Indeed, in our respectful opinion, the failure of the executive to act, the effect of which is to continue the limitation on the constitutional right of an accused in Saskatchewan to equality in the law, can no longer be justified under s. 1.

[…]

[168] The failure of the executive to proclaim in Saskatchewan [s. 530 of the Criminal Code], having regard for the circumstances which prevail in the Province, is out of tune with the objective--indeed it stands in the way of attaining the objective in the Province--and, in the language of Oakes can no longer be regarded as rationally connected to the objective. Nor, it might be added, does the executive action at issue impair "as little as possible" the equality rights of an accused in Saskatchewan whose language is French. Thus the Crown has failed, in our respectful opinion, to meet the onus upon it proof showing that the limitation in question is both reasonable and demonstrably justified.

156158 Canada inc. v. Québec, 2017 QCCA 2055 (CanLII)

(ii) Equality Rights

[41] The Appellants also contended that the trial judge erred by concluding that ss. 51, 52 and 58 C.F.L. did not infringe their equality rights. If Francophones could advertise in French only, the argument went, then Anglophones should be allowed to advertise in English only.

[42] The Superior Court judge rejected this argument, having found no error in “the trial judge’s extensive analysis of the law and in the application of the legal principles to the facts of the case”.[68] Nothing in the impugned legislation demeaned the human dignity of the English-speaking population.

[43] In any case, the judge added that a violation of equality rights would be justified under s. 1 of the Canadian Charter and s. 9.1 of the Quebec Charter, as already decided in the freedom of expression discussion.

[…]

[50] The Supreme Court of Canada in Ford and in Devine, as well as the Quebec Court of Appeal in Entreprises W.F.H. Ltée, ruled that legislation requiring joint or “markedly predominant” use of French survived Charter scrutiny. Before further discussion of the judgments in the lower courts, it is necessary to outline the rulings in these cases regarding freedom of expression and equality rights.

(ii) Devine

[63] In 1988, the Supreme Court issued its decision in Ford’s companion case, Devine. In Devine, a printing business displayed a commercial sign with English text only, and serviced its clientele in English. The business challenged ss. 52, 57, 58, 59, 60 and 61 C.F.L., by an action in nullity contending that these provisions violated freedom of expression and the right to equality pursuant to ss. 2(b) and 15 of the Canadian Charter and ss. 3 and 10 of the Quebec Charter.

[…]

[70] With regard to the Canadian Charter, the Supreme Court did not discuss whether s. 57 C.F.L. infringed s. 15. Instead, the Court ruled that its conclusion with respect to the operation of s. 1 applied equally to s. 15. In other words, if the legislation imposed a reasonable limit on freedom of expression, the same was true with respect to equality.[94]

(iii) Entreprises W.F.H.

[71] In 2001, in the Entreprises W.F.H. case, an Anglophone business displayed a commercial sign with its name written in French and in English. The text was of equal size. This violated the new and current version of s. 58 C.F.L., providing that French be “markedly predominant” when used with another language. The business was fined, pursuant to s. 205 C.F.L. In response, the business entered a not-guilty plea and contended that these provisions violated its freedom of expression and right to equality, pursuant to ss. 2(b) and 15 of the Canadian Charter and ss. 3 and 10 of the Quebec Charter. This Court dismissed both Charter challenges.

[…]

[73] Justice Biron also applied the Supreme Court’s ruling on equality rights in Devine. Following the reasoning in that case, an infringement on s. 15 of the Canadian Charter and s. 10 of the Quebec Charter would nonetheless be justified by virtue of ss. 1 and 9.1.[96]

N.B. – Application for leave to appeal has been filed with the Supreme Court of Canada on February 19, 2018.

Annotations for section 1 dealing with an alleged breach of Subsection 18(2) of the Canadian Charter of Rights and Freedoms

Charlebois v. Mowat , 2001 NBCA 117 (CanLII)

[118] I have found that subsection 18(2) of the Charter imposes on New Brunswick municipalities the obligation to enact, print and publish their by-laws in the two official languages. I have also found that the City of Moncton's failure to enact and publish its by-laws, including by-law Z-4, infringes subsection 18(2) of the Charter and the constitutional obligation to which the City is subject.

[119] This failure is an outright denial of a Charter right. It cannot be a limit prescribed by law as can be demonstrably justified under section 1 of the Charter.

[120] Under subsection 52(1), a law may be adjudged unconstitutional on its face because it infringes a Charter right and is not saved by section 1 of the Charter. This is not a situation where a law infringes protected rights, rather, it concerns the failure of an institution of the government, i.e., the City of Moncton, to comply with the constitutionally required manner for the enactment of its by-laws.

[…]

[128] In this connection, it should be remembered that section 1 of the Charter allows restrictions of Charter rights only by such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. Under this general limitation, the legislature can strike a balance or achieve a compromise between the exercise of a guaranteed right and the safeguarding of society's best interests. However, while certain limits imposed on the exercise of the right guaranteed under subsection 18(2) may be justifiable, this provision creates a requirement of legislative bilingualism that cannot be reduced to unilingualism or a bilingualism that is left to the discretion of municipal councils. This would amount to a denial of the constitutional language right guaranteed by subsection 18(2). Moreover, by implication, the bilingualism requirement in regard to municipal by-laws extends to the process of enactment.

Annotations for section 1 dealing with an alleged breach of Subsection 20(1) of the Canadian Charter of Rights and Freedoms

Doucet v. Canada , [2005] 1 F.C.R. 671, 2004 FC 1444 (CanLII)

[51] It is usual to proceed with the analysis of a Charter infringement by applying the tests in Oakes. In applying the Oakes tests, we go immediately to the government's pressing and urgent objective and then consider the proportionality of the disputed governmental measure. However, it is necessary first to consider whether the measure itself can be regarded as prescribed by law. Pursuant to section 1 of the Charter, the rights and freedoms are "subject only to such reasonable limits prescribed by law". There is no doubt that the Regulations, adopted pursuant to the OLA, are prescribed by law. However, the Regulations themselves are not in dispute, but rather a void therein. In my view, the effect is the same. The absence of an appropriate regulatory measure in the present case has the effect of infringing a right guaranteed by the Charter.

[…]

[54] In a country as large as Canada, with a relatively small and diverse population, it is reasonable and legitimate to limit the availability of bilingual services in those areas where it is not justified by the demand. In my opinion, this is a valid objective from a constitutional point of view. The rational objective is therefore clearly legitimate. The question then is to decide whether its implementation infringes rights in a proportional manner. First, one must ask if there is a connection between the objective and the infringement, in other words, whether limiting the availability of services in French can be rationalized. This is undoubtedly true. There is a logical connection; it is at the proportionality stage itself, that is, the stage of minimal impairment and balancing the deleterious effect and benefits conferred, that the measure fails.

[55] Indeed, the impairment is not minimal. The evidence has established a significant demand: the rights of a large number of Francophones are therefore being infringed. In RJR-MacDonald Inc. v. Canada (Attorney General), 1995 CanLII 64 (SCC), [1995] 3 S.C.R. 199, McLachlin J. (now Chief Justice) reminded us that the government has the burden of establishing minimal impairment […]

[56] In the case at bar, the defendant did not demonstrate how the Regulations as drafted minimally impair the rights of the travelling public belonging to the minority official language group. The Regulations do not require consideration of motorists as a factor in determining "significant demand". The defendant merely argued that the demographics of the region do not justify bilingual police services; this altogether fails to address the concerns of Francophone travellers.

[…]

[60] The beneficial effects of the disputed Regulations are only appreciable in terms of the money saved by Treasury in not being required to supply bilingual officers on Highway 104 in the Amherst service area. This economic benefit must be weighed against the limitation's deleterious effect, as measured by the values underlying the Charter. In the case at bar, the evidence has established a "significant demand" and, accordingly, the deleterious effect on the rights of Francophones travelling on Highway 104 near Amherst is clear. In his testimony, Staff Sgt. Hastey described the complications brought about by the need for services in French for unilingual Francophones. However, he did not address the issue of the right of Francophones to speak in French when communicating with a federal institution, regardless of their proficiency in the other official language. I have already addressed the practical problems raised by the defendant, at paragraph 57 and following of these reasons. None of these arguments are any justification for infringing the language rights guaranteed by the Charter. In my opinion, the deleterious effect of the omission noted in the Regulations largely outweighs any benefit conferred by the policy of denying access to bilingual services on the Amherst Highway 104. The effect of the measure is thus disproportionate to the benefit sought by the rationalization.

[61] Accordingly, I find that the breach of the language rights of Francophones travelling on Highway 104 near Amherst, and more specifically the impairment of the rights guaranteed by subsection 20(1) of the Charter, is not justified under section 1 of the Charter.

Annotations for section 1 dealing with an alleged breach of section 23 of the Canadian Charter of Rights and Freedoms

Association des parents de l’école Rose-des-vents v. British Columbia (Education), [2015] 2 S.C.R. 139, 2015 SCC 21 (CanLII)

[49] It may be that costs and practicalities again become relevant if a responsible party seeks to justify a violation of s. 23 under s. 1 of the Charter. As well, costs and practicalities may be relevant where a court seeks to fashion a remedy that is “appropriate and just” in the circumstances, pursuant to s. 24(1) of the Charter. Thus, it does not automatically follow from a finding of a s. 23 breach that rights holders will receive a new school. There is a perpetual tension in balancing competing priorities; between the availability of financial resources and the demands on the public purse. In fashioning a remedy, the court will take into account the costs and practicalities that form part of the provision of all educational services ― for both majority and minority language schools. However, this issue is not before us on this appeal.

[50] To summarize, issues of costs and practicalities are considered in determining where a minority language community falls on the sliding scale of rights guaranteed under s. 23. Where the community is entitled to the highest level of educational services, on an equal footing with the majority language community, costs and practicalities will not be relevant to a determination of whether the rights holders are receiving the services to which they are entitled. It may be, however, that costs and practicalities will be relevant in attempts to justify a breach of s. 23, and in attempts to fashion an appropriate and just remedy for a breach.

[…]

[61] In my view, the judge’s declaration in this case constitutes a limited, or prima facie, declaration of a breach of s. 23. In these circumstances, where the children of s. 23 rights holders are entitled to an educational experience equivalent to that of majority language children, there is no difference between a finding of a lack of equivalence and a finding that the rights holders have not received the services to which they are entitled under s. 23. In effect, unless the absence of equivalence can be justified under s. 1, it is a violation of the claimants’ Charter rights. Put differently, what else could save a breach, other than justification of the failure to provide equivalent services or to allocate sufficient resources? However, since responsibility for the breach has not yet been assigned ― and leaving open the possibility that the responsible party or parties may seek to justify the breach ― it cannot be said that the judge’s declaration constitutes a complete finding of a Charter violation. Indeed, the judge’s careful phrasing of his declaration indicates that he was alive to these complexities.

[…]

[73] Responsibility for the breach at issue here cannot be determined until the next phase of proceedings. Division of responsibility will determine where the burden of justifying the s. 23 violation lies, if a s. 1 argument is raised. Similarly, the division of responsibility would most likely precede any substantive remedial orders.

Nguyen v. Quebec (Education, Recreation and Sports), [2009] 3 S.C.R. 208, 2009 SCC 47 (CanLII)

[2] The first of these amendments provides that periods of attendance at unsubsidized English-language private schools are to be disregarded when determining whether a child is eligible to receive instruction in the publicly funded English-language school system. The second amendment establishes the same rule with respect to instruction received pursuant to a special authorization granted by the province under s. 81, 85 or 85.1 CFL [Charter of the French language] in a case involving a serious learning disability, temporary residence in Quebec, or a serious family or humanitarian situation. For the reasons that follow, I conclude that the amendments in issue limit the rights guaranteed by s. 23 of the Canadian Charter of Rights and Freedoms, that these limits have not been justified under s. 1 of the Charter, and that paras. 2 and 3 of s. 73 CFL, which were added by Bill 104 [Act to amend the Charter of the French language], are therefore unconstitutional. I would therefore dismiss the appeals. I would also dismiss the respondents’ cross-appeals, which relate to incidental issues.

[…]

[22] This Court must decide whether the second and third paragraphs of s. 73 of the CFL are constitutional. To do so, it must first decide whether the provisions in issue infringe the language rights guaranteed by s. 23 of the Canadian Charter and, if so, whether the infringement is reasonable and whether it is justified in a free and democratic society under s. 1 of the Canadian Charter. The Court must then decide on the appropriate remedy and on costs.

[…]

E. Justification Under Section 1

[37] According to the respondents, the appellants cannot invoke s. 1 of the Canadian Charter to justify a limit on s. 23 rights. But it is now well established that s. 1 applies to language rights, and that the Court did not reach the conclusion the respondents say it did in Quebec Association of Protestant School Boards (see, for example, Ford, at pp. 771 and 774). Thus, in accordance with the approach established in R. v. Oakes, 1986 CanLII 46 (SCC), [1986] 1 S.C.R. 103, the Court must determine first whether the objective of the measures adopted by the Quebec legislature is sufficiently important to warrant the infringement of the guaranteed rights, and then whether the means chosen are proportional to the objective.

[38] Bill 104 had two principal objectives. The first was to resolve the problem of bridging schools and the expansion of the categories of rights holders that resulted from the enrolment of students in those institutions. The second, more general, objective was to protect and promote the French language in Quebec. Although the Quebec legislature is required to perform its constitutional obligations related to minority language educational rights within its territory, the fundamental rule concerning the language of instruction in Quebec remains. According to s. 72 CFL, instruction in Quebec must, with some exceptions, be provided in French to all students in kindergarten and in elementary and secondary schools. This rule is the expression of a valid political choice. Quebec’s National Assembly may legitimately try to give effect to this choice by permitting no exceptions other than those required by the language rights provided for in s. 23 of the Canadian Charter. The legislature’s intention in this respect would be compromised if these “springboard” schools could be used to make obtaining access to minority language schools almost automatic. Resolving this problem is a serious and legitimate objective. Moreover, this Court has already held, in Ford, that the general objective of protecting the French language is a legitimate one within the meaning of Oakes in view of the unique linguistic and cultural situation of the province of Quebec:

[…]

[40] Since the legislative objective has been found to be valid, the next step is to determine whether the provisions introduced by Bill 104 constitute a proportionate response to the problems identified above. In my opinion, the appellants have established the existence of a rational causal connection between the objectives of Bill 104 and the measures taken by the province of Quebec. Moreover, this Court has commented several times on the importance of education and the organization of schools to the preservation and promotion of a language and its culture (Mahe, at pp. 362-63; Reference re Public Schools Act (Man.), at p. 849; Gosselin, at para. 31). The purpose of Bill 104 is to protect and promote instruction in French as well as the use of the French language.

[41] The main problem that arises in determining whether the impugned provisions are constitutional relates to the proportionality of the adopted measures. Even if a rational connection is found to exist between the impugned measures and the objective of the legislation, it is necessary to take the analysis further and ask whether the means chosen by the legislature constitute a minimal impairment, as defined in the case law, of the constitutional rights guaranteed by s. 23(2) of the Canadian Charter. In my opinion, the measures that are contested in the Nguyen and Bindra cases are excessive in relation to the objectives being pursued, and do not meet the standard of minimal impairment.

[42] I will begin by discussing the Nguyen case, and therefore the case of unsubsidized private schools contemplated in the second paragraph of s. 73 CFL. As I mentioned above, Bill 104 rules out any consideration of a child’s educational pathway in an unsubsidized English-language private school. No account whatsoever is to be taken of the duration and circumstances of that pathway or of the nature and history of the educational institution in which the child was enrolled. The prohibition against taking this into account is total and absolute. In light of the evidence presented in the Nguyen case, this legislative response seems excessive in relation to the seriousness of the identified problem and its impact on school clientele and, potentially, on the situation of the French language in Quebec. The evidence shows that the number of children who become eligible for admission to the English-language public school system after attending a UPS remains relatively low, although it does seem to be gradually increasing. For example, in the 2001-2 school year, according to statistics provided by the Ministère de l’Éducation for the entire province of Quebec, just over 2,100 students enrolled in English-language UPSs [unsubsidized private schools] at the pre-school, elementary and secondary levels throughout Quebec did not have certificates of eligibility for instruction in English (A.R., at p. 1605). Thus, before Bill 104 came into force, the time they spent in these institutions could have qualified them for a transfer to the publicly funded English-language system. This represents just over 1.5 percent of the total number of students eligible for instruction in English that year (Rapport sur l’évolution de la situation linguistique au Québec, 2002-2007, at p. 82). This number has since increased. The number of students attending English-language UPSs who did not have certificates of eligibility exceeded 4,000 in the 2007-8 school year (A.R., at p. 1605). Despite this increase, however, the number of students in question remains relatively low in relation to the numbers of students in the English- and French-language school systems. In view of this situation, although I do not deny the importance of the purpose of para. 2 of s. 73 CFL, the absolute prohibition on considering an educational pathway in a UPS seems overly drastic. What is happening is not a de facto return to freedom of choice with disruptive changes to the categories of rights holders. The legislature could have adopted different solutions that would involve a more limited impairment of the guaranteed rights and could more readily be reconciled with the concrete contextual approach recommended in Solski.

[43] However, I do not wish to deny the dangers that the unlimited expansion of UPSs could represent for the objectives of preserving and promoting the French language in Quebec. If no action were taken to control this expansion, the bridging schools could become a mechanism for almost automatically circumventing the CFL’s provisions on minority language educational rights, creating new categories of rights holders under the Canadian Charter and, indirectly, restoring the freedom to choose the language of instruction in Quebec.

[44] Some of the evidence on the use of bridging schools raises doubts regarding the genuineness of many educational pathways, and regarding the objectives underlying the establishment of certain institutions. In their advertising, some institutions suggested that after a brief period there, their students would be eligible for admission to publicly funded English-language schools (A.R., at pp. 1200-1202). An approach to reviewing files closer to the one established in Solski would make it possible to conduct a concrete review of each student’s case and of the institutions in question. This review would relate to the duration of the relevant pathway, the nature and history of the institution and the type of instruction given there. For example, it might be thought that an educational pathway of six months or one year spent at the start of elementary school in an institution established to serve as a bridge to the public education system would not be consistent with the purposes of s. 23(2) of the Canadian Charter and the interpretation given to that provision in Solski. Moreover, as I mentioned above, this Court expressed reservations in Solski about attempts to create language rights for expanded categories of rights holders by means of short periods of attendance at minority language schools (Solski, at para. 39).

[45] The situations in issue in the Bindra case also concern a relatively small number of children. According to the statistics provided by the appellants, it appears that between 1990 and 2002, an average of 7.1 percent of students eligible for English instruction were eligible owing to a special authorization issued by the province under ss. 81, 85 and 85.1 CFL (Rapport sur l’évolution de la situation linguistique au Québec, 2002-2007, at p. 90). Although it is impossible to determine with any accuracy what proportion of those students subsequently obtained certificates of eligibility under s. 73, para. 1(2) CFL, I note that a large majority of them were eligible because they were staying temporarily in Quebec and had obtained special authorizations on that basis under s. 85 CFL. Moreover, it must not be forgotten that the special authorizations mechanism remains wholly within the authority of the Quebec government, which can therefore grant authorizations that exceed what it is constitutionally obligated to grant, but cannot, after doing so, deny any rights flowing from the authorizations in question that are guaranteed by the Canadian Charter. The provisions added to the CFL by Bill 104 that apply to Mr. Bindra’s case are not consistent with the principle of preserving family unity provided for in s. 23(2) of the Canadian Charter. In fact, they are likely to make it impossible for children of a family to receive instruction in the same school system.

F. Remedies

[46] I must therefore find that the limit on the respondents’ constitutional rights was not justified under s. 1 of the Canadian Charter. I would therefore uphold the Quebec Court of Appeal’s declaration that paras. 2 and 3 of s. 73 CFL are invalid. Because of the difficulties this declaration of invalidity may entail, I would suspend its effects for one year to enable Quebec’s National Assembly to review the legislation. However, it is also necessary to consider the situations of the claimants concerned in the two appeals.

Solski (Tutor of) v. Quebec (Attorney General), [2005] 1 S.C.R. 201, 2005 SCC 14 (CanLII)

[21] The minority language education rights entrenched in s. 23 are national in scope and remedial in nature. At the time the section was adopted, the framers were aware of the various regimes governing the Anglophone and Francophone linguistic minorities throughout Canada and perceived these regimes as inadequate. Section 23 was intended to provide a uniform solution to remedy these inadequacies. As the Court explained in Quebec Association of Protestant School Boards, at pp. 79-80, where the constitutionality of the CFL’s education provisions was under review:

The framers of the Constitution unquestionably intended by s. 23 to establish a general regime for the language of instruction, not a special regime for Quebec; but in view of the period when the Charter was enacted, and especially in light of the wording of s. 23 of the Charter as compared with that of ss. 72 and 73 of Bill 101, it is apparent that the combined effect of the latter two sections seemed to the framers like an archetype of the regimes needing reform, or which at least had to be affected, and the remedy prescribed for all of Canada by s. 23 of the Charter was in large part a response to these sections.

Given the national character of s. 23, the Court has interpreted the rights provided by this provision in a uniform manner from province to province: Quebec Association of Protestant School Boards; Mahe ; Reference re Public Schools Act (Man.); Arsenault-Cameron; Doucet-Boudreau. This is not to say however that the unique historical and social context of each province is irrelevant; rather, it must be taken into account when provincial approaches to implementation are considered, and in situations where there is need for justification under s. 1 of the Canadian Charter: Ford, at pp. 777-81.

[…]

[52] While the current quantitative approach to s. 73 of the CFL [Charter of the French language] is not the standard required by s. 23(2) of the Canadian Charter, the Attorney General of Quebec argues, in the alternative, that it is justifiable under s. 1. It is his view that the unique linguistic position of Quebec in Canada — the provincial majority language community is also the national minority language community — can serve as a justification for the “major part” requirement as interpreted by him. We do not consider it necessary to examine that possibility. Reading down s. 73 permits Quebec to meet its legislative objectives while ensuring that no persons eligible under s. 23 of the Canadian Charter are excluded from minority-language schools if they choose to attend them. […]

A.G. (Que.) v. Quebec Protestant School Boards , [1984] 2 S.C.R. 66, 1984 CanLII 32 (SCC)

[p. 84] If, as is apparent, Chapter VIII of Bill 101 [Charter of the French language] is the prototype of regime which the framers of the Constitution wished to remedy by adopting s. 23 of the Charter, the limits which this regime imposes on rights involving the language of instruction, so far as they are inconsistent with s. 23 of the Charter, cannot possibly have been regarded by the framers of the Constitution as coming within “such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society”. Accordingly, the limits imposed by Chapter VIII of Bill 101 are not legitimate limits within the meaning of s. 1 of the Charter to the extent that the latter applies to s. 23.

[…]

[pp. 85-86] Let us assume that Chapter VIII of Bill 101 had been enacted after the Charter, or that a province other than Quebec were now to adopt an Act drafted like Chapter VIII of Bill 101, but designed to limit the right to instruction in French. Could it be said that s. 1 of the Charter is capable of legitimizing such legislation, to the extent that s. 1 applies to s. 23?

We do not think so.

Whatever their scope, the limits which s. 1 of the Charter allows to be placed on the rights and freedoms set out in it cannot be equated with exceptions such as those authorized by s. 33(1) and (2) of the Charter, which in any event do not authorize any exception to s. 23:

[…]

Nor can those limits be tantamount to amendments to the Constitution of Canada, the procedure for which is prescribed in ss. 38 et seq. of the Constitution Act, 1982.

[…]

[p. 87] The following arguments made by the Attorney General of New Brunswick in his submission seem to us to be conclusive:

…Section 59 modifies the classes of parents entitled to have their children instructed in English by suspending the operation of paragraph 23(1)(a) in Quebec. By implication, the other classes of beneficiaries entitled to enjoy section 23 rights cannot be redefined by ordinary legislative enactment.

The detailed definition of classes of parents is at the heart of Section 23. Any effort to redefine the classes of parents entitled to educational rights effectively represents an attempt to amend the Constitution without resort to the amending formula and is accordingly not comprehended by section 1.

The Attorney General of Canada expresses the same idea in his memorandum, where he writes, after referring to s. 1 of the Charter.

[TRANSLATION] …it does not allow the categories of individuals who enjoy the right conferred by s. 23 to be altered by imposing different rules which run directly counter to those expressly stated in that section. The exception clause provided for in s. 33 does not cover s. 23, and the Canadian Charter of Rights and Freedoms can only be amended in accordance with the terms of the procedure for amending the Constitution contained in Part V of the Constitution Act, 1982.

[…]

[p. 88] […] The provisions of s. 73 of Bill 101 collide directly with those of s. 23 of the Charter, and are not limits which can be legitimized by s. 1 of the Charter. Such limits cannot be exceptions to the rights and freedoms guaranteed by the Charter nor amount to amendments of the Charter. An Act of Parliament or of a legislature which, for example, purported to impose the beliefs of a State religion would be in direct conflict with s. 2(a) of the Charter, which guarantees freedom of conscience and religion, and would have to be ruled of no force or effect without the necessity of even considering whether such legislation could be legitimized by s. 1. The same applies to Chapter VIII of Bill 101 in respect of s. 23 of the Charter.

Conseil-scolaire francophone de la Colombie-Britannique v. British Columbia (Education), 2016 BCSC 1764 (CanLII)

[864] I take from these comments a number of principles: Once considerations of cost and pedagogy or decisions in prior litigation establish entitlement to the highest level of services -- equivalence-- costs and practicalities are irrelevant to the equivalence analysis. Costs and practicalities are relevant to determining what services a given number of students is entitled to; in other words, they are relevant when the Court is situating the number on the sliding scale. They may also be relevant if a party seeks to justify a violation of s. 23 under s. 1 of the Charter. They may prove relevant again when a court seeks to fashion an “appropriate and just” remedy, as “it does not automatically follow from a finding of a s. 23 breach that rights holders will receive a new school.”

[…]

[989] Further, although the right to minority language education is limited by the numbers warrant criterion, those limits do not engage the same philosophical concerns as the elements of the Oakes test. The s. 1 test examines competing moral claims and broad societal benefits (Carter at para. 79). The limits imposed by the numbers warrant criterion are designed to limit government expenditures to what is practical in light of pedagogy and cost. The numbers warrant criterion is even less rooted in the same concerns as s. 1 than are the principles against arbitrary, overbroad and grossly disproportionate laws. The limits in s. 23 simply do not allow the Court to consider the broader public goals that might justify a limit to language rights.

[990] Less has been said about the reasons why s. 15 claims are so rarely justified. It appears that the dearth of cases where the right to equality has been justified pursuant to s. 1 does not occur because there is any higher standard placed on governments. Rather, these cases have proven exceptionally challenging to justify on the facts of the cases due to the fundamental human interests that are engaged and the competing interests at play.

[…]

D. Justification

[1518] I conclude that the Province breached s. 23 by continuing its policy of not applying the AFG [Annual Facility Grant] Rural Factor to the CSF [Conseil scolaire francophone] in 2008/09, 2009/10 and 2010/11. The Ministry treated the CSF differently from majority boards despite recognizing the rationale for doing so was dissipating. The remaining question is whether the breach is justified pursuant to s. 1.

[1519] I set out the framework for s. 1 justification in Chapter IX, Justification. There, I explain that since the plaintiffs’ claim is grounded in the unconstitutional effects of facially neutral legislation, the Oakes framework rather than the Doré framework ought to apply. The purpose of that scheme, which the plaintiffs acknowledge to be pressing and substantial, is the “fair and rational allocation of public funds”. Here, the particular infringing measure-- the policy of not applying the AFG Rural Factor to the CSF-- was also intended to fairly and rationally allocate public funds.

[1520] The rational connection step of the Oakes analysis aims to avoid arbitrary legislative regimes by asking whether there is a connection between the infringing measure and the valid government objective. When examining the rational connection, I will have regard to the objective and the scheme for achieving that objective.

[1521] I find that there is a rational connection between fairly and rationally expending public funds and a measure that did not apply the AFG Rural Factor to the CSF. The policy refrained from providing the CSF with increased funding when it was operating out of many leased, heterogeneous schools and was not paying for the maintenance work on those facilities. By doing so, more funds were available for the majority school boards responsible for the maintenance work, which was a fair and rational allocation of funds. Further, after about 2008, the continued application of the policy to the CSF reduced the harm to the (sic) in a period where the Ministry was providing only half of districts’ overall AFG funding in each year. The Ministry chose to wait until there were more funds to distribute before it made the AFG Rural Factor applicable to the CSF.

[1522] The minimal impairment stage of the test asks whether the infringing measure impairs the right or freedom as little as possible. It asks whether there are less drastic means by which the Province could have achieved its objective in a real and substantial manner. That the Province is engaging in a balancing of interests and an allocation of scarce resources weighs toward giving the Province some deference. It is a middle level of deference that takes into account the social good and value that society places on education.

[1523] In my view, the failure to make the change in 2008 was minimally impairing. The CSF continued to receive about 60% of the AFG funding that it would ultimately be entitled to. The CSF’s new programmes where it moved from leased to owned space opened in 2008 and then 2011, so the CSF’s need for the additional funds were not urgent in 2009. Moreover, since the CSF was not spending its AFG funds on leased space, including leased homogeneous space, it was in practice operating at an advantage with respect to AFG funds.

[1524] The final stage considers the proportionality of the effects of the infringing measure. This goes beyond the purpose or objective of the measure, and examines its salutary and deleterious effects.

[1525] At the local level, the salutary effects of the policy of not applying the AFG Rural Factor to the CSF are straightforward: the Ministry did not have to deal with the political consequences of taking from the majority to give to the minority in a period when it had just done so. It also had the effect of protecting majority boards from small additional AFG losses in years when they were already only receiving half of what they were used to receiving. The Ministry did not save any funds it could have reallocated from the majority to the minority.

[1526] The deleterious effects are more challenging to quantify. The Ministry has always maintained that school boards ought to be spending part of their operating funds on facility maintenance. The CSF had operating surpluses of more than $5,793,403 in 2008/09, $4,242,349 in 2009/10 and $1,853,493 in 2010/11. The CSF did not point to any projects that it was unable to complete due to a deficiency of AFG funds in this period. I note that in more recent years, starting in 2013/14, the CSF deferred a Heating, Ventilation and Air Conditioning (“HVAC”) system replacement at École Élémentaire Anne-Hébert (Vancouver (East)) due to insufficient AFG funds. It is possible that the CSF may have been able to proceed with a project like that sooner if the Ministry had begun applying the AFG Rural Factor to the CSF in 2008/09. However, that is unlikely because the CSF was coping with the reduced AFG funding being provided to all districts in those years. At most, I find that if the Ministry had applied the AFG Rural Factor to the CSF sooner, it would have reduced the financial burden on the CSF.

[1527] Weighing those effects together, I find that the salutary effects outweigh the deleterious effects. All school boards were undergoing challenging economic times in 2008/09 and 2009/10, particularly regarding their AFG. The CSF’s need for the AFG Rural Factor was only just beginning to materialize in those years, and was not fully realized until 2011, after its programmes had moved from leased heterogeneous to owned homogeneous space. The CSF was also operating from a position of relative advantage at that time because of its decision not to spend its AFG funds on leased space even though it was receiving funds for students enrolled in those schools. The CSF also had considerable operating surpluses. As soon as the Ministry was able to secure more funds for its AFG funding envelope, it allocated all of those funds to the CSF. In light of those factors, and the deference owed to the Ministry’s assessment of the best ways of balancing the needs of the majority and the minority, I conclude that the deleterious and salutary effects are balanced, and the breach passes the proportionality test.

N.B. – For further examples of justifications of s. 23 breaches pursuant to s. 1 of the Canadian Charter of Rights and Freedoms in this judgment, please refer to paragraphs 4247 to 4259 and 4991 to 5003. The appeal of this judgement was heard by the British Columbia Court of Appeal in January and February 2018.

Dauphinee v. Conseil Scolaire Acadien Provincial , 2007 NSSC 238 (CanLII)

[46] I find that the Department, by not making, or even attempting to make, any provisions in its Tuition Support program which would accommodate special needs students of the CSAP [Conseil scolaire acadien provincial] infringes those parents’ equality or equivalency rights which the Supreme Court of Canada has stated are part and parcel of the guarantees provided in Section 23 of the Charter. The defendants have not advanced any compelling reason why students of the CSAP should not be provided for in the Tuition Support program. The plaintiffs are not asking that new schools or facilities be built, but simply that the Department approve a plan for access by students of the CSAP who qualify for Tuition Support. They request access to a plan which caters to French students with special needs, as is now the case for the English majority. Surely this is not too much to ask. I find that failure on the part of the Department to use its best efforts to make such provisions is a violation of the Charter rights of qualified Section 23 families. If the Department refuses to use its best efforts to make such provisions, in view of the fact it appears relatively cost neutral, or even if there is some reasonable additional cost, it is difficult to envisage how it could be saved by Section 1 of the Charter. There can be no justification for not providing for students and families of the CSAP in the Tuition Support program in the circumstances, and, (sic) considering some of the provisions I have referred to above. The Department must act to see what, if any, French-first-language schools which cater to students with special needs in other jurisdictions can be designated for inclusion under the present Tuition Support program, or put a different plan in place which will adequately meet the needs of CSAP students with special needs. If this requires changes to the present regulations and guidelines, then surely this can be done in consultation with the CSAP and its parent groups. It is simply a matter of “accommodation”.

[…]

[53] The Department did violate or breach the plaintiffs Section 23 Charter rights by failing to consider and provide any accommodation for CSAP families in its Tuition Support program for students with special needs. Such a breach is not justified in the circumstances and it cannot be saved by Section 1. The Department must use its best efforts to incorporate and accommodate CSAP students with special needs in its Tuition Support in a manner that meets their linguistic needs and rights. The best way to achieve this should be worked out between the Department, the CSAP and its parent groups. This does not in the circumstances extend to the creation or establishment of new facilities comparable to the existing English private schools because the numbers do not warrant such measures.

Fundamental Freedoms (section 2)

2. Fundamental freedoms

2. Everyone has the following fundamental freedoms:

[…]

(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;

[…]

[LAST UPDATE: APRIL 2017]

Annotations

Ford v. Quebec (Attorney General), [1988] 2 S.C.R. 712, 1988 CanLII 19 (SCC)

[40] […] Language is so intimately related to the form and content of expression that there cannot be true freedom of expression by means of language if one is prohibited from using the language of one's choice. Language is not merely a means or medium of expression; it colours the content and meaning of expression. It is, as the preamble of the Charter of the French Language itself indicates, a means by which a people may express its cultural identity. It is also the means by which the individual expresses his or her personal identity and sense of individuality. That the concept of "expression" in s. 2(b) of the Canadian Charter and s. 3 of the Quebec Charter goes beyond mere content is indicated by the specific protection accorded to "freedom of thought, belief [and] opinion" in s. 2 and to "freedom of conscience" and "freedom of opinion" in s. 3. That suggests that "freedom of expression" is intended to extend to more than the content of expression in its narrow sense.

[…]

[43] The second and third of the submissions of the Attorney General of Quebec which have been summarized above, with reference to the implications for this issue of the express or specific guarantees of language rights in s. 133 of the Constitution Act, 1867, and ss. 16 to 23 of the Canadian Charter of Rights and Freedoms, are closely related and may be addressed together. These special guarantees of language rights do not, by implication, preclude a construction of freedom of expression that includes the freedom to express oneself in the language of one's choice. A general freedom to express oneself in the language of one's choice and the special guarantees of language rights in certain areas of governmental activity or jurisdiction -- the legislature and administration, the courts and education -- are quite different things. The latter have, as this Court has indicated in MacDonald, supra, and Société des Acadiens, supra, their own special historical, political and constitutional basis. The central unifying feature of all of the language rights given explicit recognition in the Constitution of Canada is that they pertain to governmental institutions and for the most part they oblige the government to provide for, or at least tolerate, the use of both official languages. In this sense they are more akin to rights, properly understood, than freedoms. They grant entitlement to a specific benefit from the government or in relation to one's dealing with the government. Correspondingly, the government is obliged to provide certain services or benefits in both languages or at least permit use of either language by persons conducting certain affairs with the government. They do not ensure, as does a guaranteed freedom, that within a given broad range of private conduct, an individual will be free to choose his or her own course of activity. The language rights in the Constitution impose obligations on government and governmental institutions that are in the words of Beetz J. in MacDonald, a "precise scheme", providing specific opportunities to use English or French, or to receive services in English or French, in concrete, readily ascertainable and limited circumstances. In contrast, what the respondents seek in this case is a freedom as that term was explained by Dickson J. (as he then was) in R. v. Big M Drug Mart Ltd., 1985 CanLII 69 (SCC), [1985] 1 S.C.R. 295, at p. 336: "Freedom can primarily be characterized by the absence of coercion or constraint. If a person is compelled by the state or the will of another to a course of action or inaction which he would not otherwise have chosen, he is not acting of his own volition and he cannot be said to be truly free. One of the major purposes of the Charter is to protect, within reason, from compulsion or restraint." The respondents seek to be free of the state imposed requirement that their commercial signs and advertising be in French only, and seek the freedom, in the entirely private or non-governmental realm of commercial activity, to display signs and advertising in the language of their choice as well as that of French. Manifestly the respondents are not seeking to use the language of their choice in any form of direct relations with any branch of government and are not seeking to oblige government to provide them any services or other benefits in the language of their choice. In this sense the respondents are asserting a freedom, the freedom to express oneself in the language of one's choice in an area of non-governmental activity, as opposed to a language right of the kind guaranteed in the Constitution. The recognition that freedom of expression includes the freedom to express oneself in the language of one's choice does not undermine or run counter to the special guarantees of official language rights in areas of governmental jurisdiction or responsibility. The legal structure, function and obligations of government institutions with respect to the English and French languages are in no way affected by the recognition that freedom of expression includes the freedom to express oneself in the language of one's choice in areas outside of those for which the special guarantees of language have been provided.

[…]

[54] It is apparent to this Court that the guarantee of freedom of expression in s. 2(b) of the Canadian Charter and s. 3 of the Quebec Charter cannot be confined to political expression, important as that form of expression is in a free and democratic society. The pre-Charter jurisprudence emphasized the importance of political expression because it was a challenge to that form of expression that most often arose under the division of powers and the "implied bill of rights", where freedom of political expression could be related to the maintenance and operation of the institutions of democratic government. But political expression is only one form of the great range of expression that is deserving of constitutional protection because it serves individual and societal values in a free and democratic society.

[…]

[58] In order to address the issues presented by this case it is not necessary for the Court to delineate the boundaries of the broad range of expression deserving of protection under s. 2(b) of the Canadian Charter or s. 3 of the Quebec Charter. It is necessary only to decide if the respondents have a constitutionally protected right to use the English language in the signs they display, or more precisely, whether the fact that such signs have a commercial purpose removes the expression contained therein from the scope of protected freedom.

[59] In our view, the commercial element does not have this effect. Given the earlier pronouncements of this Court to the effect that the rights and freedoms guaranteed in the Canadian Charter should be given a large and liberal interpretation, there is no sound basis on which commercial expression can be excluded from the protection of s. 2(b) of the Charter. It is worth noting that the courts below applied a similar generous and broad interpretation to include commercial expression within the protection of freedom of expression contained in s. 3 of the Quebec Charter. Over and above its intrinsic value as expression, commercial expression which, as has been pointed out, protects listeners as well as speakers plays a significant role in enabling individuals to make informed economic choices, an important aspect of individual self-fulfillment and personal autonomy. The Court accordingly rejects the view that commercial expression serves no individual or societal value in a free and democratic society and for this reason is undeserving of any constitutional protection.

[60] Rather, the expression contemplated by ss. 58 and 69 of the Charter of the French Language is expression within the meaning of both s. 2(b) of the Canadian Charter and s. 3 of the Quebec Charter. This leads to the conclusion that s. 58 infringes the freedom of expression guaranteed by s. 3 of the Quebec Charter and s. 69 infringes the guaranteed freedom of expression under both s. 2(b) of the Canadian Charter and s. 3 of the Quebec Charter. Although the expression in this case has a commercial element, it should be noted that the focus here is on choice of language and on a law which prohibits the use of a language. […]

Patanguli v. Canada (Citizenship and Immigration), 2015 FCA 291 (CanLII)

[32] Second, the appellant contends that the employer’s refusal to conduct disciplinary hearings in French as he had requested twice (August 27 and 31, 2009), had violated his right to freedom of expression as guaranteed by subsection 2(b) of the Canadian Charter of Rights and Freedoms and language rights protected under section 16 of the Charter and by the Official Languages Act (the Act). Even though the appellant insists that this issue should not be treated as simply a breach of procedural fairness, his grievance did not raise the violation of his language rights as a separate issue to be settled by the adjudicator. Therefore I will address them.

[…]

[46] It is far from clear to me that the appellant actually had the language rights he alleges to have had under the Charter and the Act, which enforces sections 16 to 20 of the Charter (Lavigne v. Canada (Office of the Commissioner of Official Languages), 2002 SCC 53 (CanLII), [2002] 2 S.C.R. 773). The appellant cites section 16 of the Charter and the purpose of the Act (section 2), without demonstrating that these provisions imposed an obligation on his employer to ensure that the interviews on August 31 and September 1, 2009, took place in French. […]

Galganov v. Russell (Township), 2012 ONCA 409 (CanLII)

[…]

(a) Whether the By-law infringes freedom of expression as guaranteed by s. 2(b) of the Charter

[50] Brisson, supported by the intervener, submits that the By-law infringes his right to freedom of expression as guaranteed by s. 2(b) of the Charter.

[51] In deciding whether the By-law infringes freedom of expression, I must undertake the two-step analysis mandated by Irwin Toy Ltd. v. Quebec (A.G.), 1989 CanLII 87 (SCC), [1989] 1 S.C.R. 927. The first step is to determine whether the conduct falls within the sphere of activity protected by freedom of expression. If so, the second step is to determine whether the purpose or effect of the government action restricts freedom of expression.

[52] The fact that Brisson’s sign is a commercial sign does not remove it from the scope of the protected freedom in s. 2(b): see Ford v. Quebec (A.G.), 1988 CanLII 19 (SCC), [1988] 2 S.C.R. 712, at pp. 766-767. Commercial expression is included within the protection of freedom of expression if it conveys meaning.

[53] One has only to read Brisson’s sign to appreciate that it conveys meaning respecting the nature of his business. Below his business name, “Independent Radiator Services”, the sign reads:

Radiateurs réparés et neufs

Air climatisé rempli et réparé

Réparation mécanique mineure

[54] The sign indicates that the nature of Brisson’s business is repairing and installing new radiators, filling air conditioners [with fluid] and repairing them, and doing minor mechanical repairs. Thus, Brisson’s sign conveys meaning and cannot be excluded from the protection of s. 2(b).

[55] I must therefore determine whether the purpose or effect of the By-law violates Brisson’s right to freedom of expression. Brisson and the intervener submit that compelled bilingualism on new exterior commercial signs forces commercial entities into a course of action they would not have chosen for themselves and that this compulsion violates the guarantee of freedom of expression under s. 2(b). Accordingly, they contend that the application judge erred in holding there was no infringement of Brisson’s right to freedom of expression.

[56] Choice of language is an important aspect of expression. In Ford, at p. 748, the Supreme Court of Canada observed that “[l]anguage is not merely a means or medium of expression; it colours the content and meaning of expression.” The court held that s. 58 of the Quebec Charter of the French Language, R.S.Q., c. C-11, which stated that “[p]ublic signs and posters and commercial advertising shall be solely in the official language [French]” was inoperative because it violated the guarantee of freedom of expression in s. 3 of the Quebec Charter of Human Rights and Freedoms, R.S.Q. c. C-12, (the “Quebec Charter”), which is the equivalent of s. 2(b) of the Canadian Charter. The court concluded that s. 3 is infringed when one is compelled to use a particular language and is thereby prohibited from using one’s language of choice. Nor was s. 58 justified under s. 9.1 of the Quebec Charter. Section 9.1 is a provision corresponding to s. 1 of the Canadian Charter subject, in its application, to a similar test of rational connection and proportionality.

[…]

Entreprises W.F.H. Ltée v. Québec (Attorney General), 2001 CanLII 17598 (QC CA) [judgment available in French only]

[OUR TRANSLATION]

[4] The appellant was found guilty of violating s. 58 of the Charter of the French language, R.S.Q., c. C-11, which requires that French be markedly predominant in bilingual commercial signs, and sentenced it to pay the minimum fine provided under s. 205 of the same act. It asks the Court to declare these sections invalid and of no force or effect, on the basis that s. 58 infringes its right to freedom of expression guaranteed by s. 2(b) of the Canadian Charter of Rights and Freedoms and s. 3 of Quebec’s Charter of human rights and freedoms, R.S.Q., c. C-12, as well as its right to equality guaranteed by s. 15 of the Canadian Charter and s. 10 of the Quebec Charter.

Was the right to freedom of expression violated by the requirement that French be markedly predominant?

[44] The provision that prescribed that public signs and commercial advertising had to be in French only was declared to be of no force or effect in 1988. Clearly, such a provision would still be so today.

[45] In 1988, the Supreme Court declared in obiter, that is, even though it was not necessary to do so to support its decision, that requiring the predominant display of the French language, even its marked predominance, would be proportional to the goal of promoting and maintaining a French “visage linguistique” in Quebec and therefore justified under the Quebec Charter and the Canadian Charter. The Supreme Court went so far as to specifically say, in Ford, that French could be required in addition to any other language or could be required to have greater visibility than that accorded to other languages.

[…]

[60] Assuming that s. 58 limits freedom of expression, the Superior Court judge concluded that it was up to the appellant to show, through its own evidence, that the principles in Ford no longer applied. I am of the opinion that he is right. Ford established guidelines, and the legislature effectively codified them in 1993, thereby meeting the burden of proof imposed by s. 1 of the Canadian Charter and s. 9 of the Quebec Charter.

156158 Canada inc. c. Attorney General of Quebec, 2017 QCCA 2055 (CanLII)

[103] In 1988, the Supreme Court of Canada in Ford declared, in obiter dictum, that “requiring the predominant display of the French language, even its marked predominance”, would be justified under s. 1 of the Canadian Charter and s. 10 of the Quebec Charter. The Court proposed two constitutionally valid alternatives to requiring the exclusive use of French. First, “French could be required in addition to any other language”. Second, French “could be required to have greater visibility than that accorded to other languages.”[124]

[105] Moreover, there is nothing “theoretical” about the obiter dictum in Ford. When the Supreme Court invalidates an unconstitutional rule, it often proposes constitutionally valid alternatives or guidelines for the legislature.[125] In this case, the Supreme Court left the legislator a choice between two constitutionally valid options. It is not for the courts to now question that choice.

[106] The impugned provisions fall squarely within the ambit of the Court’s obiter dictum in Ford. On the one hand, ss. 51 and 52 C.F.L., when read with s. 89, allow the concurrent use of French and English on product packaging, as well as in catalogues, brochures, folders, commercial directories and similar publications. This complies with the first alternative proposed by the Supreme Court in Ford. The Supreme Court in Devine expressly said so regarding s. 52 C.F.L.[126]

[107] On the other hand, the post Ford version of s. 58 C.F.L. provides that French be markedly predominant when used with another language in commercial advertising and public signs, which the C.F.L. Rules stipulate to mean that French text must be twice as large as the text of any other language. This accords with the second alternative proposed by the Supreme Court in Ford. This Court so decided in Entreprises W.F.H. In that case, the Court held that s. 58 C.F.L. implemented the obiter dictum expressed by the Supreme Court in Ford. The Court felt bound by the Supreme Court proposition that a markedly predominant requirement would satisfy the Oakes test. In such regard, Entreprises W.F.H. is a relevant and binding precedent, contrary to Appellants contention.

[108] The infringement of freedom of expression is provided by law and thus permitted by s. 1 of the Canadian Charter and s. 9.1 of the Quebec Charter.

[…]

[110] The legislature’s choice of how to require the joint or “markedly predominant” display of French does not raise a new legal issue in the sense of Bedford and Carter. The Court in Ford clearly indicated that both alternatives satisfied s. 1 of the Canadian Charter and s. 9.1 of the Quebec Charter. There have been no significant developments in the law on this issue since Ford. Also, and as addressed above, the judge of the Court of Quebec found on the facts that no fundamental change in the status of the French language had occurred in Quebec since Ford and Devine and on review, the judge of the Superior Court found no error in such determination. In turn, I find no error in the opinion of the judge of the Superior Court.

[111] The Appellants have argued that the evidence they adduced should at least justify striking down provisions requiring predominant use of French in favour of joint use or shift the burden to Respondent to justify its choice away from the less intrusive alternative suggested by the Supreme Court in Ford. This, say Appellants, would still maintain the “visage linguistique” while minimally intruding on minority rights. Such an argument may well have merit in a policy discussion at the Quebec legislature. However, it is not for the courts to enter into a debate on policy options adopted by the legislature in complying with the Supreme Court’s directive, as the Superior Court judge correctly stated.[127] Markedly predominant use of French was one option put forward by the Supreme Court. It is not for this Court to review the legislature’s choice in the present circumstances.

[112] The expression “visage linguistique” used in Ford refers to the language used in the visual landscape of commerce in Quebec. The C.F.L. regulates this “visage linguistique”, to ensure that the social reality of Quebec is portrayed in its “visage linguistique” and, ultimately, to protect the French language.[128]

[113] The Appellants’ submissions on this issue must be rejected for the following reasons. First, when the Quebec government adopted the C.F.L. in 1977, it did so in response to its assessment of the vulnerable state of the French language in Quebec. This legislation does not aim to promote the multilingual image of Montreal, or, for that matter, “the multicultural heritage of Canadians”, as does s. 27 of the Canadian Charter. Rather, it aims “to see the quality and influence of the French language assured”[129] in Quebec. The fact that the “visage linguistique” of Quebec now accurately reflects the predominance of French in Quebec indicates that the C.F.L. has met this objective.

[114] The Supreme Court did not limit the expression “visage linguistique” to outside signs. Indeed, the Appellants proposition that the concept of “visage linguistic” explained in Ford only refers to “those outside signs visible from a public thoroughfare” does not withstand scrutiny. The distinction between outside and indoor signs appears nowhere in Ford or Devine. In fact, one of the plaintiffs in Ford used and displayed (commercial signs) within and on the exterior of its premises[130] in violation of s. 58 C.F.L. In Devine, the impugned provision, s. 51 C.F.L., related to writings on products, which are generally located indoors.

[115] Unilingual English websites, which are the object of certain of the offences charged, were not discussed in Ford or Devine as they did not arise from the facts. However, I do not see any valid differentiation for present purposes in 2017 between a commercial brochure printed on paper and one existing in electronic form. If the publications on a website aim to conduct or promote business in the territory of Quebec,[131] then they are part of the “visage linguistique” of Quebec and thus subject to s. 52 C.F.L.

N.B. – Application for leave to appeal has been filed with the Supreme Court of Canada on February 19, 2018.

Canadians for Language Fairness v. Ottawa (City), 2006 CanLII 33668 (ON SC)

[115] The Applicant submits that the unilingual Anglophones’ rights to freedom of expression are abrogated by the By-Law [No. 2001-170] and the [Bilingualism] Policy. Unilingual English employees are required to take additional measures to be bilingual. The Policy is invasive and discriminatory and thus a contravention of the Charter and various United Nations International Covenants.

[…]

[119] The Supreme Court of Canada set out a two-step test to determine whether an individual’s freedom has been infringed (see Irwin Toy Ltd. v. Québec (A.G.), 1989 CanLII 87 (SCC), [1989] 1 S.C.R. 927).

[120] The first step is to determine whether an activity falls within the freedom of expression. The Charter does not protect activity that either does not convey or attempt to convey a meaning.

[121] The activity of being required to learn a second language in order to obtain a certain employment is not one that has a meaning or any content.

[122] But, if the activity did have meaning, the second step is to determine whether the purpose or effect of the action was to restrict freedom of expression.

[123] The evidence in the case at bar is that the purpose and effect of the Policy is to ensure that both English speaking and French speaking citizens can obtain services in the official language of their choice. The evidence is persuasive that for City employees, working in one’s language of choice facilitates the provision of services to the public in both English and French. Therefore there is no attempt to prevent any expression of thoughts, opinion or beliefs in a policy designed to promote the use of both languages. The right to express oneself in the language of one’s choice is specifically guaranteed in the Policy.

Lavigne v. Quebec (Attorney General), 2000 CanLII 30033 (QC SC)

[22] Petitioner also raises the issue of freedom of expression. The Supreme Court in Ford distinguished between linguistic rights and freedom of expression:

"A general freedom to express oneself in the language of one's choice and the special guarantees of language rights in certain areas of governmental activities or jurisdiction - the legislature and administration, the Courts and education - are quite different things."

[23] To illustrate this observation, we note that freedom of expression is guaranteed to all Canadians regardless of their language. Before the Courts, however, proceedings and pleadings can only be in one of the official languages.

[24] The very nature of an individual's freedom of expression is that he can exercise it in his own language. In the present case, therefore, Mr. Lavigne can express himself in his own language, English, as he did when pleading his motion. He may also benefit from the services of an interpreter. It would be difficult therefore to believe that his freedom of expression might be hindered in any manner. The conclusion sought by the Petitioner in effect, seeks to oblige the government of Quebec to adopt a legislative policy.

[25] The Supreme Court has decided that the nature of this liberty implies that there is neither constraint nor coercion: s. 2 of the Canadian Charter generally imposes a negative obligation on the government rather than a positive obligation of support or protection. As far as freedom of expression is concerned, this principle is well illustrated in the Haig decision:

The traditional view, in colloquial terms, is that the freedom of expression contained in s. 2(b) prohibits gags but does not compel the distribution of megaphones.

[26] The Court cannot read sections 2b) and 3 of the Canadian and Quebec Charters as imposing the obligation on the government to legislative [sic] compel itself to assign as its counsel those who speak the language of the other party. The remedy sought by Mr. Lavigne is in fact more of the nature of a legislative policy.

N.B. – The appeal of this judgment was dismissed on motion at the Quebec Court of Appeal and the application for leave to appeal at the Supreme Court of Canada was dismissed.

R. v. Rodrigue , 1994 CanLII 5249 (YK SC)

[p. 11] There can be no doubt that under sections 530 and 530.1 of the Criminal Code, the accused and his counsel effectively enjoy the right and the freedom to express themselves in their own official language. In fact, subsection 530.1(a) specifies [in French] that "the accused and his counsel have the right to use either official language ... during the preliminary inquiry and trial of the accused" (the English version specifies that this right can be exercised "for all purposes during the preliminary inquiry and trial of the accused").

[pp. 11-12] This being said, in view of the fact that the Supreme Court of Canada has indicated that there is a clear distinction between freedom of expression when exercised during private activity and linguistic rights which are exercised during the course of dealings with the State, it would be inappropriate, in my view, to transpose the analysis adopted by the Supreme Court concerning freedom of expression to the provisions regarding linguistic rights. […]

N.B. – The appeal of this judgment was dismissed on other grounds by the Yukon Court of Appeal and the application for leave to appeal to the Supreme Court of Canada was dismissed.

Democratic Rights (section 3)

3. Democratic rights of citizens

3. Every citizen of Canada has the right to vote in an election of members of the House of Commons or of a legislative assembly and to be qualified for membership therein.

[LAST UPDATE: APRIL 2017]

Annotations

Figueroa v. Canada (Attorney General), [2003] 1 S.C.R. 912, 2003 SCC 37 (CanLII)

I. Regional Representation

[…]

[167] These features of Canada’s history and political institutions indicate that fair democratic representation in this country includes representation of the distinctive interests of regional groups. I find support for this conclusion in some of this Court’s statements on the relationship between federalism and democracy, particularly in the Secession Reference, supra. The Court portrayed the underlying principles of the Constitution, including federalism and democracy, as existing in symbiosis: “[n]o single principle can be defined in isolation from the others, nor does any one principle trump or exclude the operation of any other” (para. 49). This suggests that federalism, with its concern for preserving the distinctive interests of regional groups, helps to define Canadian democracy.

[…]

[169] These observations suggest that one of the components of the right to meaningful participation is the right to have one’s voice heard as a member of the regional community to which one belongs. The constitutional guarantee of effective representation includes a right to a certain degree of recognition of the individual voter’s interests as a Manitoban, or a Maritimer, or a Quebecker, and it suggests a floor of relative equality between the different provinces and regions of the country which cannot be completely cancelled out by a nationwide numerical majority. This aspect of effective representation is far from being an absolute right, and its weight should not be overstated at the risk of trumping core concerns such as fairness as between individual voters. But it is one of the values to be taken into account in defining meaningful representation and determining whether government action offends s. 3.

Reference re the Final Report of the Electoral Boundaries Commission , 2017 NSCA 10 (CanLII)

[2] Electoral boundaries should achieve “effective representation”. This is a constitutional right of citizens in s. 3 of the Charter. It is not a policy option for the Government. On this Reference, the analysis turns on the standards that govern the implementation of the constitutional principle of effective representation.

[3] Effective representation derives from a balance of criteria, broadly described by the Supreme Court of Canada, that are deduced from s. 3. The equilibrium is applied to the circumstances on the electoral map. It is a normative and contextual inquiry whose outcome may be in the eye of the beholder. Reasonable observers may disagree. So it is crucial to identify who is assigned the inquiry.

[…]

[19] Section 3’s “democratic” reach extends beyond the polling booth. Early on, the courts’ purposive interpretation of s. 3 impacted electoral boundaries. First was the decision of Chief Justice McLachlin, then of the British Columbia Supreme Court, in Dixon v. British Columbia (Attorney General) (1989), 1989 CanLII 248 (BC SC), 59 D.L.R. (4th) 247. Next was Reference Re Prov. Electoral Boundaries (Sask.), 1991 CanLII 61 (SCC), [1991] 2 S.C.R. 158 (commonly called “Carter”), that overturned (1991), 1991 CanLII 8030 (SK CA), 78 D.L.R. (4th) 449 (Sask. C.A.), on the Government of Saskatchewan’s electoral boundaries reference.

[…]

[49] The Interim Report’s Appendix G explained the [Electoral Boundaries] Commission’s reasoning for recommending the maintenance of protected ridings in Argyle, Clare and Richmond (to encourage Acadian representation) and Preston (to encourage African-Nova Scotian representation). The Commission applied its view of Carter’s effective representation to the circumstances that had become apparent during the Commission’s hearings:

Appendix G: Maintaining “Protected Constituencies”

Canada is known throughout the world for the recognition and accommodation of minority rights within its democratic and parliamentary institutions. Indeed, the Supreme Court identified this as one of the defining features of the Canadian constitutional order (see Reference re Secession of Quebec, 1998). Nova Scotia has its own relatively recent history of recognizing and accommodating its distinctive Acadian and African Nova Scotian communities. Since 1991, the province of Nova Scotia has done this by extending special “protection” to four electoral districts. … The creation and maintenance of such electoral districts represents a choice – acknowledged or not – about how well to represent a minority group. Ensuring “effective representation” in the House of Assembly for all Nova Scotians (which is their constitutional right and the primary purpose of the electoral redistribution exercise) requires that relative parity of voting power be balanced against other considerations, and the balance struck will vary depending upon a range of factors and circumstances. In the judgment of the Commission, retaining the four protected constituencies for Acadians and African Nova Scotians continues to be the appropriate balance between relative voter parity and other considerations in order to best ensure that these groups receive effective representation in the Nova Scotia legislature.

The protected districts in Nova Scotia were designated as such because they have a special historical significance for the province, as well as major significance for the Acadian and African Nova Scotian minorities whose political representation within the legislature they are intended to protect. Three of the four are ridings where the Acadian population is either dominant or numerically important: Clare, Argyle, and Richmond. The fourth is the riding of Preston, where African Nova Scotians comprise a key component of the voting population. The special protection was conferred as a means of avoiding the inevitable political dilution of these minority communities within the surrounding majority (even though their overall provincial numbers would otherwise justify proportionate representation in the legislature). While this particular mode of accommodating these specific minority groups is not without its problems (see below), it remains both a politically important and culturally significant gesture, recognizing as it does the unique place and role of these minority groups in the province’s history, and within its present cultural diversity.

Like the Mi’kmaq people, the Acadian and African Nova Scotian communities have a particular cultural uniqueness and territorial basis in Nova Scotia that supports the argument for retaining a form of ‘special status’ in the electoral redistribution process. This status follows from the fact that they constitute minority cultural communities that are indigenous to Nova Scotia, and further can be said to have fairly well-defined territorial ‘homelands’ in this province that have been continuously occupied for hundreds of years. Their distinctiveness derives from their long evolution as ethno-linguistic (Acadian) or racial (African Nova Scotian) minorities within an English-speaking majority of predominantly British heritage, but also, just as importantly, from their unique indigenous cultures that have developed over centuries of relative isolation as coherent communities (due to remote rural locale and/or social exclusion). In short, these minority cultures are both distinctively Nova Scotian and deeply rooted in specific, territorially-based communities within the province.

[…]

In effect, the elected representatives from the protected ridings in Nova Scotia have a mandate and a responsibility to perform a dual role both within and outside the legislature: they have a duty to be constituency representatives like other members of the legislature, but they also act as political representatives for the extended cultural community they represent. Thus, Acadians across the province, whether they live in the three protected ridings or not, depend on these protected political districts and the elected representatives they send to the legislature to play an important role in safeguarding the interests and identities associated with the Acadian language, culture and tradition. The same can be said for the riding of Preston, which, whether it elects an African Nova Scotian to the legislature or not (an outcome dependent in large part upon decisions made by political parties through their candidate selection processes), still expects its elected MLA [Members of the Legislative Assembly] to play this dual role – a mandate which they are able to impart through the strong African Nova Scotian voter presence within the boundaries of the protected constituency of Preston. (It should be noted that this fits the classic political definition of an influence district, where political candidates need to court support from a minority group to ensure their election, though the extent of minority influence will vary depending on local circumstances, and even from election to election). This is an additional consideration to take into account. This is the importance of symbolic recognition to minority communities. Such recognition constitutes a positive message of affirmation to minorities regarding acknowledgement by the majority of their existence, their historical significance and their continued distinctiveness. Revoking the protected status of the four designated constituencies would revoke this recognition; it would send a strong negative message about their place and status within the larger provincial community.

… The protection offered to the three Acadian constituencies should be seen as a further measure taken to recognize and protect the French-speaking minority in the province, but beyond this the unique and indigenous Acadian communities from whence the vast majority of Nova Scotia’s French-speaking population derives. The Constitution also explicitly acknowledges – in section 15(2) protecting the constitutionality of affirmative action programs – that equality for minorities needs to be understood as something other than ‘sameness’ of treatment; different treatment is sometimes necessary to achieve a form of equality that equates more closely with fairness for minorities, especially those that have been subject to historical discrimination. Finally, and directly pertinent to the elected redistribution process, is the Supreme Court decision in Reference re Provincial Electoral Boundaries (1991), where the Court held that the right to vote guaranteed by section 3 of the Charter of Rights and Freedoms does not include the right to votes of equal ‘weight’ in the sense that constituencies must be of equal population size.

[…]

[52] On June 14, 2012, the Attorney General, Mr. Landry, wrote to the Chair of the Commission. Mr. Landry’s letter stated that the Interim Report was “null and void”, for failure to follow the Terms of Reference, and directed the Commission to replace it with another Interim Report:

[…]

[65] There is no straight road to effective representation. Justice McLachlin framed the question as “comprising many factors”:

[…]

[66] The body which determines or recommends the boundaries is expected to balance those factors. Effective representation weighs the principle of voter parity against countervailing criteria. The countervailing criteria include minority representation, cultural and group identity. Justice McLachlin put it this way:

[…]

[79] From the text in the Commission’s first Interim Report, it appears likely that, without the Attorney General’s letter of June 14, 2012, the Commission would have concluded that Carter’s criteria of minority representation, cultural and group identity, supported a higher variance for the Acadian ridings (above, paras. 47-49). The Attorney General’s intervention forced the Commission to sign a Final Report with electoral boundaries that, in this respect, did not represent the Commission’s authentic view of effective representation according to the constitutional criteria.

[…]

[89] The Commission is not just a Crown agent following orders from its principal. It also entertains authority directly from s. 3 of the Charter to implement the constitutional principles of effective representation. Effective representation is not a favour of the Government’s beneficence. Section 3 expresses the citizens’ entrenched “democratic right” that is untouchable even by a legislative override under s. 33.

[…]

Daoust v. Québec (Directeur general des élections), 2011 QCCA 1634 (CanLII)

[37] The trial judge concluded that the [Quebec] Election Act does not contravene either s. 3 of the Canadian Charter or s. 22 of the Quebec Charter, and that the evidence had not established any violation of the right to equality that is enshrined in s. 15 of the Canadian Charter and s. 10 of the Québec Charter either. I am of the same opinion. Here is why.

[…]

[39] Without entering into all of the details, today’s electoral map of Quebec, pursuant to the Election Act, is divided into electoral divisions that are delimited not only by taking into account the principle that the vote of each elector is of equal weight, but also on the basis of demographical, geographical and sociological considerations. Subject to exceptions, Section 16 of the Election Act stipulates that there cannot be a deviation between the number of electors in each division that exceeds by 25% the quotient obtained by dividing the total number of electors by the number of electoral divisions. The candidate of a division who has received the greatest number of votes is elected.

[…]

[44] Therefore, in order to be valid, every electoral system must confer on the electorate or assure it of a minimal, albeit significant, degree of representation. The appellants maintain that the voting system in force does not satisfy this requirement. They noted the deviations that may sometimes exist between the percentage of votes obtained and the number of members elected. Like the interveners, they consider that the current voting system creates large distortions that affect the representative character of the electorate. According to the appellants, minorities, including the English-speaking population of the West Island, are under-represented in the National Assembly. The current system favours the election of majority governments, and works against minority parties.

[…]

[50] The evidence, especially the testimony by expert Leslie Seidle accepted by the trial judge, supported the conclusion that the one-round single-member majority system that is currently in effect in Quebec respects the right to effective representation of electors, including the minorities identified by the appellants.

[…]

[56] Once there is effective representation of citizens, which implies the possibility that each elector can exercise his right to vote periodically, freely, and secretly, be a candidate for office, vote for the party of his choice, and express himself in public, the right to vote enshrined in s 3 of the Canadian Charter and s 22 of the Quebec Charter is respected. That is the case here.

City of Yellowknife et al v Commissioner of NWT et al , 2015 NWTSC 51 (CanLII)

[47] The [Electoral Boundaries Commission’s] Final Report is quite blunt about the challenges the Commission faced in attempting to achieve relative parity while also addressing other legitimate considerations, and the concerns that had been expressed:

It is apparent that absolute voter parity between electoral districts is impossible to achieve. Moreover, it is extremely difficult to make any recommendation which would result in all electoral districts being within the plus or minus 25% variance. To do so would result in drastic changes to electoral districts that would not sufficiently take into account the historic configuration of electoral districts, language, culture, geography, land claims or self-government agreements.

We are also of the view that the status quo is not acceptable and changes need to be considered. Some inequities between electoral districts are significant and have increased over time. The concept of effective representation requires that we attempt to reduce those inequities as much as possible.

It seems clear that the issue of the number of electoral districts within Yellowknife versus elsewhere in the Northwest Territories cannot be resolved in a way that accommodates everyone's concerns. We do not think that effective representation requires that the number of electoral districts in Yellowknife be in perfect accord with Yellowknife's proportion of the territorial population. At the same time, the situation in Yellowknife cannot be ignored and if additional electoral districts are to be considered, one should be allocated to Yellowknife.

Ibid., page 15.

[48] The Applicants argue that although the issue of under-representation of the Yellowknife districts was acknowledged, nothing in the Final Report explains why this problem could not be mitigated. I disagree. The Report refers to the other considerations that were factored into the analysis. In the excerpt quoted above at Paragraph 47, the Commission refers directly to the challenges it faced, and to the need to take into account factors such as the historic configuration of electoral districts, language, culture, geography, land claims and self-government agreements.

[49] These concerns are very much in line with the realities cited by the Supreme Court of Canada in Reference Re Prov. Electoral Boundaries (Sask.) when it alluded to situations where a focus on voter parity may detract from the goal of effective representation:

(...) effective representation and good government in this country compel those charged with setting electoral boundaries sometimes to take into account factors other than voter parity, such as geography and community interests. The problem of representing vast, sparsely populated territories, for example, may dictate somewhat lower voter population in these districts; to insist on voter parity might deprive citizens with distinct interests of an effective vote in the legislative process as well as of effective assistance from their representatives in their "ombudsman" role. This is only one of a number of factors which may necessitate deviation from the "one person - one vote" rule in the interests of effective representation.

Reference Re Prov. Electoral Boundaries (Sask.), supra, p. 188.

[50] It is difficult to imagine a jurisdiction where these considerations would resonate more than they do in the Northwest Territories. This jurisdiction spans over a widespread geographic area. Many of its communities do not have year-round road access. Air travel is very expensive. The Territory has eleven official languages, including nine aboriginal languages. Official Languages Act, R.S.N.W.T. 1988, c. O-1. Some aboriginal groups have settled land claims with beneficiaries who are spread out in several communities. Others do not have settled land claims, but have a community of interests. These are all factors that have a bearing on how the citizens of this territory can have effective representation in the Legislative Assembly.

[…]

[54] Drawing electoral boundaries is always a complex exercise but in the context of this jurisdiction, it is especially challenging. The districts here are not divided along the lines of "urban districts" and "rural districts". As noted above, there are a myriad of variables that must be taken into account in order to achieve effective representation.

[…]

[58] As noted above, the Northwest Territories has unique features, and this makes the drawing of electoral boundaries particularly challenging. Reasonable people may disagree as to how those challenges should be resolved. Weighing the many factors that had to be considered, including numbers, the Legislative Assembly could well have made a different decision about how best to address these difficult issues, and drawn the electoral boundaries in a different way. But saying that a different decision could have been made is a far cry from saying that the decision that was made could not have been made by reasonable persons, having regard to all the circumstances.

Judicial Recount Arising out of the 41st General Election in the Electoral District of Etobicoke-Centre (Re), 2011 CanLII 36068 (ON SC)

[36] Certain ballots must be rejected because of statutory provisions. These ballots may be categorized as follows:

[…]

2. Where ‘X’ is not in the circle provided

Section 284(1)(b) of the [Canada Elections] Act provides that the marking shall be made in the circle at the right of the candidate’s name to be valid. Therefore, If the ‘X’ is not in the circle provided the ballot is not valid.

Counsel for Borys Wrzesnewskyj submitted that the word ‘shall’ in s. 248(1)(b) of the Act should not be interpreted as determinative but as permissive, meaning that ballots with a mark outside of the circle to the right of the candidate’s name may still be valid as long as the voter’s intention is clear.

Counsel took the position that the interpretation of ‘shall’ as determinative is based on pre-Charter case law and that the jurisprudence did not take into account s.3 of the Charter of Rights and Freedoms, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 (the “Charter”). In order for s.248(1)(b) to be consistent with s.3 of the Charter, ‘shall’ should be interpreted as being permissive. Otherwise, voters who place their mark outside of the circle will be disenfranchised, and such a result is not consistent with their s. 3 rights.

Counsel for Mr. Wrzesnewskyj argued that a number of residents in the Etobicoke-Centre electoral district who (sic) do not speak English as a first language. Counsel submitted that persons who may not understand English well may have difficulty understanding the instructions as to where to vote on the ballot, and therefore may place their vote outside of the circle. Interpreting ‘shall’ in s.248(1)(b) as imperative would disenfranchise these persons. Counsel also referred to Manitoba legislation which allows marks outside of the circle to be counted as valid votes and the cases of Chrol v. Winnipeg (City), 2007 MBQB 16 (CanLII), [2007] M.J. No. 22 to support the argument.

[…]

Counsel for Ted Opitz submitted that ‘shall’ in s.248(1)(b) should be interpreted consistently with Canada’s Interpretation Act, RSC 1985, c. I-21, s. 11 (the “Interpretation Act”) which states the following:

The expression “shall” is to be construed as imperative and the expression “may” as permissive.

Counsel submitted that the court should interpret s. 248(1)(b) consistently with Ontario courts in recent years, which have applied ‘shall’ determinatively, and that the Manitoba case law presented by the applicant is not relevant in this case as Manitoba’s legislation on this issue differs from the provisions in the Canada Elections Act. He contends that the Charter does not repeal the clear wording of legislation, and that the court must apply s.248(1)(b) as written.

I find that ‘shall’ in s.248(1)(b) is to be interpreted as being imperative. Case law in Ontario and other provinces has consistently found s.248(1)(b) as requiring a ballot with a mark outside of the circle to be invalid. The Supreme Court of Canada stated in Slaight Communications Inc. v. Davidson, 1989 CanLII 92 (SCC), [1989] 1 S.C.R. 1038, at p. 1078:

Although this Court must not add to legislation or delete anything from it in order to make it consistent with the Charter, there is no doubt in my mind that it should also not interpret legislation that is open to more than one interpretation so as to make it inconsistent with the Charter and hence of no force or effect.

Section 248(1)(b) is not open to more than one interpretation. The section clearly states that ballots with marks outside of the circle ‘shall’ be rejected. Parliament has unambiguously determined that ‘shall’ is to be interpreted imperatively in the Interpretation Act. Therefore, s.248(1)(b) must be interpreted as being determinative. It is not for the court to add or delete anything from legislation when provisions are not ambiguous. Furthermore, s.248(1)(b) may not be inconsistent with the rights in s.3 of the Charter. In order to determine whether the language of s.248(1)(b) infringes s.3, a full Charter analysis would need to be undertaken. An application to challenge the constitutionality of s.248(1)(b) has not been put before the court in this case, and notice must be given to the Attorney General before such an application is heard. I am therefore of the view that the argument must fail and I find those ballots with marks outside the circle are invalid.

Raîche v. Canada (Attorney General), [2005] 1 F.C.R. 93, 2004 FC 679 (CanLII)

[28] In Reference Re Prov. Electoral Boundaries (Sask.), the Supreme Court of Canada examined the principles set out in section 3 of the Charter. McLachlin J. (as she then was), writing for the majority, concluded that the purpose of the right to vote enshrined in section 3 of the Charter was the right to effective representation, and not merely parity of voting power.

[…]

[30] Accordingly, relative parity of voting power is the first condition of effective representation; but other factors, for example geographic features, history, the interests of the community and representation of minority groups, had to be considered, and could justify deviations from absolute voter parity.

[…]

[33] In this case, the applicants introduced evidence to show that there is a community of interest in Acadie-Bathurst. They filed seven affidavits by residents of the former electoral district of Acadie-Bathurst. All seven attested to the strong linguistic, historic, social and administrative ties that exist in Acadie-Bathurst, and the relative absence of ties between the communities in the former electoral district of Acadie-Bathurst and those in Miramichi. For example, Carmel Raîche, a resident of Allardville, and Ian Oliver, a resident of South Tetagouche, stated in their affidavits that they themselves, like the populations of Allardville and South Tetagouche, go to school, do their shopping, use the hospital and go to recreational centres in the Bathurst region, and not in Miramichi.

[…]

[46] The Court also believes that the testimony given by the applicants' witnesses is very important. The region spoke with a united voice. Representatives of associations, mayors from the different towns and the member of Parliament for Acadie-Bathurst filed affidavits and made submissions to the Commission. A petition signed by over 2,000 people was presented to the Commission.

[47] The people explained that the region is unique. According to one presenter, it has the highest concentration of Acadians in Canada. In the course of the hearings, a number of presenters talked about the importance of having a strong Acadian voice, and reminded the members of the Commission of the historical wrongs done to the Acadians. Having regard to the evidence as a whole, the Court finds that there is a community of interest in Acadie-Bathurst.

[49] Because the primary consideration in determining whether a population has effective representation is voter parity, and that a commission does not contravene section 3 of the Charter unless "reasonable persons applying the appropriate principles . . . could not have set the electoral boundaries as they exist", the Court finds that the Commission did not contravene section 3 of the Charter when it decided to transfer the parishes from Acadie-Bathurst to Miramichi.

[50] That decision is reasonable, and accordingly the Commission did not contravene section 3 of the Charter.

Friends of Democracy v. Northwest Territories (Commissioner), 1999 CanLII 4256 (NWT SC)

[10] It follows that the right to vote guaranteed by section 3 of the Charter is more than merely the right to be registered as a voter and to cast a ballot on election day. In times past, there were residents of the Northwest Territories who were denied all right to vote in elections to the House of Commons and in elections to the legislature of the Northwest Territories. These denials of right have long since been corrected by legislation. Canadians through Parliament and their provincial and territorial legislatures, have chosen to tolerate a measure of over-representation from thinly populated and relatively remote regions in preference to any such complete denial of legislative representation from those regions. Nor is the present application directed at the removal or reduction of such over-representation within the Northwest Territories.

[11] Instead, the question before the court in the present application is whether the under-representation of voters at Yellowknife, in elections to the Legislative Assembly, is in violation of section 3 of the Charter. Should additional electoral districts there be created so as to correct this under-representation and meet the standard set by that important and over-riding requirement of the Constitution of Canada?

[…]

[18] Considering the factors of geography, community history and interests, language differences, difficulties in communication with remote communities and minority representation, not to mention the normal difficulties and expenses of travel between the seat of government at Yellowknife and the various communities outside Yellowknife, I am satisfied that there probably is justification within the ambit of section 3 of the Charter for the present over-representation of the electoral districts whose percentage variations in population are below the average. On the other hand, I am unable to find similar justification for the gross under-representation of those other districts where the variations are markedly (25% or more) above the average. This gross under-representation must constitute a clear violation of section 3 of the Charter in the absence of due justification.

[…]

[24] Given that the Charter section 3 right to vote is a right of citizenship exercisable by all duly qualified individuals, it is clear that neither the existence nor the due exercise of that right should depend upon the leave, licence or say-so of any government or other executive authority, be it in relation to the negotiation or enjoyment of any aboriginal land claim or other aboriginal or treaty right. And to the extent that voting rights are dependent upon or are exercisable only subject to legislation, that legislation must not violate the supreme law known as the Constitution of Canada, as defined by section 52 of the Constitution Act, 1982:

52. (1) The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.

(2) The Constitution of Canada includes:

(a) the Canada Act, 1982, including this Act;

(b) the Acts and orders referred to in the Schedule; and

(3) Amendments to the Constitution of Canada shall be made only in accordance with the authority contained in the Constitution of Canada.

[25] As the foregoing is intended to show, I remain unpersuaded that section 3 of the Charter is in any sense to be understood as qualified by section 25 of the Charter or section 35 of the Constitution Act, 1982, at least in the present instance, given the evidence before the court in this application. It is entirely unacceptable that such a fundamental right of citizenship as that recognized and guaranteed in section 3 of the Charter (and thus in the Constitution of Canada) should be held in suspense, and thus be withheld, during government negotiations over the future self-government of aboriginal or other groups which might yet take decades to bring to a conclusion.

[…]

[38] As counsel for the Respondent has reminded me, this court in Morin v. Northwest Territories (Conflict of Interest Commissioner) (1999) N.W.T.J. No. 5 (Docket CV 07975) has held that the Legislative Assembly of the Northwest Territories is a legislature in the full sense of the word though not competent as yet to amend its own constitution except as permitted by the Northwest Territories Act. That being so, it is plain that the Charter section 3 voting right extends to voting in elections to that legislature equally with the provincial legislatures across Canada. Conditions in the Northwest Territories are different in certain respects from those in the provinces but the same constitutional principles apply. Canadian citizens in these Territories have the same Charter section 3 rights as do Canadian citizens in the various provinces.

Legal Rights (sections 7-14)

7. Life, liberty and security of person

7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

[LAST UPDATE: APRIL 2017]

Annotations

R. v. Beaulac , [1999] 1 S.C.R. 768, 1999 CanLII 684 (SCC)

[41] Another important consideration with regard to the interpretation of the “best interests of justice” is the complete distinctiveness of language rights and trial fairness. […]

The right to full answer and defence is linked with linguistic abilities only in the sense that the accused must be able to understand and must be understood at his trial. But this is already guaranteed by s. 14 of the Charter, a section providing for the right to an interpreter. The right to a fair trial is universal and cannot be greater for members of official language communities than for persons speaking other languages. Language rights have a totally distinct origin and role. They are meant to protect official language minorities in this country and to insure the equality of status of French and English. This Court has already tried to dissipate this confusion on several occasions. Thus, in MacDonald v. City of Montreal, supra, Beetz J., at pp. 500-501, states that:

It would constitute an error either to import the requirements of natural justice into . . . language rights . . . or vice versa, or to relate one type of right to the other. . . . Both types of rights are conceptually different. . . . To link these two types of rights is to risk distorting both rather than reenforcing either.

I re-affirm this conclusion here in the hope that these rights will no longer be confused. Fairness of the trial is not to be considered at this stage and is certainly not a threshold that, if satisfied, can be used to deny the accused his language rights under s. 530.

R. v. Tran , [1994] 2 S.C.R. 951, 1994 CanLII 56 (SCC)

[37] Support for an expansive interpretation of s. 14 may also be found within the Charter itself. This Court has already indicated that provisions of the Charter are not to be read in isolation, but rather interpreted in light of one another: e.g., R. v. Rahey, 1987 CanLII 52 (SCC), [1987] 1 S.C.R. 588, per Wilson and La Forest JJ., Dubois v. The Queen, 1985 CanLII 10 (SCC), [1985] 2 S.C.R. 350, per Lamer J. (as he then was), and Law Society of Upper Canada v. Skapinker, 1984 CanLII 3 (SCC), [1984] 1 S.C.R. 357. It has already been noted by this Court that s. 7 of the Charter is a general expression of the legal rights contained in ss. 8 to 14 of the Charter: Re B.C. Motor Vehicle Act, 1985 CanLII 81 (SCC), [1985] 2 S.C.R. 486, per Lamer J. (as he then was), at p. 502. Not surprisingly, therefore, s. 14 bears a close relationship to s. 7 and the other "legal rights" guaranteed under the Charter. Indeed, I would argue that the right to interpreter assistance under s. 14 is a means of ensuring that criminal proceedings comply with the constitutional guarantee of a fair and public hearing found in s. 11(d) of the Charter. At the same time, the force of s. 14 can be understood in part by reference not only to the right to make full answer and defence, but also to the right to have full disclosure of the case which has to be answered prior to making one's defence, both rights which are protected under ss. 7 and 11 of the Charter. Indeed, the close connection between s. 14 and these other Charter guarantees suggests that the right to interpreter assistance in the criminal context should be considered a "principle of fundamental justice" within the meaning of s. 7 of the Charter.

MacDonald v. City of Montreal , [1986] 1 S.C.R. 460, 1986 CanLII 65 (SCC)

[114] It is axiomatic that everyone has a common law right to a fair hearing, including the right to be informed of the case one has to meet and the right to make full answer and defence. Where the defendant cannot understand the proceedings because he is unable to understand the language in which they are being conducted, or because he is deaf, the effective exercise of these rights may well impose a consequential duty upon the court to provide adequate translation. But the right of the defendant to understand what is going on in court and to be understood is not a separate right, nor a language right, but an aspect of the right to a fair hearing.

[115] It should be absolutely clear however that this common law right to a fair hearing, including the right of the defendant to understand what is going on in court and to be understood is a fundamental right deeply and firmly embedded in the very fabric of the Canadian legal system. That is why certain aspects of this right are entrenched in general as well as specific provisions of the Charter such as s. 7, relating to life, liberty and security of the person and s. 14, relating to the assistance of an interpreter. While Parliament or the legislature of a province may, pursuant to s. 33 of the Charter, expressly declare that an Act or a provision thereof shall operate notwithstanding a provision included in s. 2 or ss. 7 to 15 of the Charter, it is almost inconceivable that they would do away altogether with the fundamental common law right itself, assuming that they could do so.

[116] This is not to put the English and the French languages on the same footing as other languages. Not only are the English and the French languages placed in a position of equality, they are also given a preferential position over all other languages. And this equality as well as this preferential position are both constitutionally protected by s. 133 of the Constitution Act, 1867. Without the protection of this provision, one of the two official languages could, by simple legislative enactment, be given a degree of preference over the other as was attempted in Chapter III of Title 1 of the Charter of the French Language, invalidated in Blaikie No. 1. English unilingualism, French unilingualism and, for that matter, unilingualism in any other language could also be imposed by simple legislative enactment. Thus it can be seen that, if s. 133 guarantees but a minimum, this minimum is far from being insubstantial.

[117] It would constitute an error either to import the requirements of natural justice into the language rights of s. 133 of the Constitution Act, 1867, or vice versa, or to relate one type of right to the other under the pretext of re‑enforcing both or either of them. Both types of rights are conceptually different. Also, language rights such as those protected by s. 133, while constitutionally protected, remain peculiar to Canada. They are based on a political compromise rather than on principle and lack the universality, generality and fluidity of basic rights resulting from the rules of natural justice. They are expressed in more precise and less flexible language. To link these two types of rights is to risk distorting both rather than re‑enforcing either.

156158 Canada inc. c. Attorney General of Quebec, 2017 QCCA 2055 (CanLII)

4) Do the limitations set out in ss. 51, 52 and 58 C.F.L. violate the right to liberty guaranteed by s. 7 of the Canadian Charter and s. 1 of the Quebec Charter?

[121] Given that language is at the core of human identity, the Appellants claim that imposing a language-based restriction interferes with the sphere of personal autonomy protected by s. 7 of the Canadian Charter. In addition, they suggest that the right to liberty bolsters their previous argument regarding the distinction between outside/inside signs and visibility from a public thoroughfare in the context of freedom of expression.

[122] It is clear that corporations are not protected by s. 7. With respect to individuals, in B. (R.) v. Children's Aid Society of Metropolitan Toronto, La Forest J. explained that in any organized society, the liberty of individuals must be subject to some constraints for the common good:

The above-cited cases give us an important indication of the meaning of the concept of liberty. On the one hand, liberty does not mean unconstrained freedom […]. Freedom of the individual to do what he or she wishes must, in any organized society, be subjected to numerous constraints for the common good. The state undoubtedly has the right to impose many types of restraints on individual behaviour, and not all limitations will attract Charter scrutiny. […]

[123] The right to liberty is limited to protecting the basic human freedom to make inherently private choices free from state interference. As Justice La Forest stated in Godbout v. Longueuil (City):

66 The foregoing discussion serves simply to reiterate my general view that the right to liberty enshrined in s. 7 of the Charter protects within its ambit the right to an irreducible sphere of personal autonomy wherein individuals may make inherently private choices free from state interference. I must emphasize here that, as the tenor of my comments in B. (R.) should indicate, I do not by any means regard this sphere of autonomy as being so wide as to encompass any and all decisions that individuals might make in conducting their affairs. Indeed, such a view would run contrary to the basic idea, expressed both at the outset of these reasons and in my reasons in B. (R.), that individuals cannot, in any organized society, be guaranteed an unbridled freedom to do whatever they please. Moreover, I do not even consider that the sphere of autonomy includes within its scope every matter that might, however vaguely, be described as “private”. Rather, as I see it, the autonomy protected by the s. 7 right to liberty encompasses only those matters that can properly be characterized as fundamentally or inherently personal such that, by their very nature, they implicate basic choices going to the core of what it means to enjoy individual dignity and independence. As I have already explained, I took the view in B. (R.) that parental decisions respecting the medical care provided to their children fall within this narrow class of inherently personal matters. In my view, choosing where to establish one’s home is, likewise, a quintessentially private decision going to the very heart of personal or individual autonomy.

[124] Such reasoning has led the Supreme Court in reviewing the regulation of retail opening hours to decide that the right to liberty does not extend to “an unconstrained right to transact business whenever one wishes”. There exists a myriad of constraints on the manner in which business is conducted which are imposed by the legislature in its discretion in pursuit of what it considers the common good. For example, consumer protection laws regulate the conduct of business in various ways. One could extend the reasoning of the Supreme Court pertaining to store opening hours to conclude that the right to liberty does not extend to an unconstrained right to transact business in any manner one wishes. As such, the requirement that merchants publicize their business in French in addition to English is not a constraint on their liberty protected by the Canadian Charter.

N.B. – Application for leave to appeal has been filed with the Supreme Court of Canada on February 19, 2018

Yamba v. Canada (Minister of Justice), 2016 BCCA 219 (CanLII)

[22] Mr. Yamba’s concern that his limited proficiency in English will prevent him from receiving a fair trial in the United States raises his right to make full answer and defence and engages the principles of fundamental justice under s. 7 of the Charter. In the extradition context, those principles recognize the reality that it is not unjust to surrender a person to a state that has criminal procedures that do not meet Canada’s constitutional requirements. In such circumstances, the Supreme Court of Canada has stated that the correct question is “whether or not, in the particular circumstances of the case, surrender of a fugitive for a trial offends against the basic demands of justice” (Schmidt at 523).

[23] The basic demands of justice clearly include the right to a fair trial. In order to have a fair hearing an accused must understand what is transpiring in court. In R. v. Tran, 1994 CanLII 56 (SCC), [1994] 2 S.C.R. 951 at 967, a case dealing s. 14 of the Charter, which guarantees the right to the assistance of an interpreter in any proceedings, Chief Justice Lamer stated:

The right to interpreter assistance is a means of ensuring that proceedings are fair and comply with the basic principles of natural justice.

[24] Chief Justice Lamer went on to note that interpreter assistance is an internationally-accepted standard for facilitating an accused’s right to a fair trial. After referring to the right to the free assistance of an interpreter guaranteed to an accused in both the International Covenant on Civil and Political Rights, 999 U.N.T.S. 171 (art. 14(3)(f)), and the European Convention for the Protection of Human Rights and Fundamental Freedoms, 213 U.N.T.S. 221 (art. 6(3)(e)), the Chief Justice said this about the United States (at 969):

While the United States’ Constitution lacks a provision which expressly guarantees the right to interpreter assistance, American courts have found such a right to exist inferentially under the Fifth Amendment (right not to be deprived of liberty without due process of law), the Sixth Amendment (right of accused to confront witness against him and to have the assistance of counsel) and the Fourteenth Amendment (right not to be deprived by any State of liberty without due process of law), as well as in the counterparts to these provisions found in state constitutions: J. F. Rydstrom, “Right of Accused to Have Evidence or Court Proceedings Interpreted” (1971), 36 A.L.R. 3d 276, Negron v. New York, 434 F.2d 386 (2nd Cir. 1970), and Valladares v. United States, 871 F.2d 1564 (11th Cir. 1989).

See also: R. v. Sidhu (2005), 2005 CanLII 42491 (ON SC), 203 C.C.C. (3d) 17 at para. 276 (Ont. S.C.J.).

[25] In my view, it was reasonable for the Minister to conclude that the assistance of a certified translator will address Mr. Yamba’s concerns regarding trial fairness in the United States. The use of a translator will ensure the integrity of the fact-finding process. With the assistance of a translator Mr. Yamba will be able to understand what is transpiring in court, consult with and instruct counsel and, if Mr. Yamba elects to do so, testify in a responsive manner.

R. v. Lapointe, 1983 CarswellOnt 1212, [1983] O.J. No. 183, 1 O.A.C. 1, 9 C.C.C. (3d) 366 (ON CA) [hyperlink not available]

[47] Nothing which has been said in this judgment should be taken as an encouragement for the practice followed by the Metropolitan Toronto Police in the present case. On the contrary, the taking of the respondents' statements in the English language without requiring the presence of an interpreter seriously jeopardized the admissibility of statements deemed to be important for the administration of criminal justice. In every case where police officers deal with a suspect whose mother tongue is different, every effort should be made to obtain a qualified interpreter. Ideally, officers taking the statements should be familiar with the language of the suspect. This is, of course, not always possible even in a multi-cultural society. Where no such officer is present, an interpreter should be made available.

N.B. – This decision was confirmed by the Supreme Court in R. v. Lapointe and Sicotte, [1987] 1 SCR 1253, 1987 CanLII 69 (SCC).

Cabral v. Canada (Citizenship and Immigration), 2016 FC 1040 (CanLII)

[2] The essentials of the Plaintiffs’ claim, as reflected in the Amended Statement of Claim is as follows:

(a) Each of the Plaintiffs applied for permanent resident status pursuant to subsection 12(2) of the Immigration and Refugee Protection Act, SC 2001, c 27 and section 87.2 of the Immigration and Refugee Protection Regulations, SOR/2002-227, as part of the Federal Skilled Trade Class [FSTC];

(b) Despite meeting all of the other requirements for permanent residence required by the FSTC, each was refused because he failed to meet the language requirement by failing the International English Language Testing System [IELTS], adopted by the Minister of Citizenship and Immigration;

(c) The Plaintiffs allege that the IELTS is culturally biased towards “British English” rather than “Canadian English” and unfairly requires a high proficiency in English;

(d) The Plaintiffs further allege that the Minister administers the FSTC in a manner that favours persons from English-speaking countries and discriminates against those, like the Plaintiffs, who are from non-English speaking countries;

(e) Each Plaintiff, having failed to meet the threshold requirements under the IELTS, requested that the officer perform a substitute evaluation of his ability to become economically established in Canada, as provided by subsection 87.2(4) of the Regulations;

(f) The Plaintiffs allege that the officer refused to consider their applications on the merits because of a Ministerial Instruction stipulating that no FTSC application was to be examined by an officer unless the language requirement was met;

(g) The Plaintiffs allege that the Ministerial Instruction is contrary to the Regulations and is ultra vires;

(h) The Plaintiffs allege that the conduct of the Defendants amounts to breach of statute, public misfeasance and abuse, excess of jurisdiction and authority, abuse of process, bad faith, and breach of section 7 and 15 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11; and

(i) The Plaintiffs suffered damages as a result of the Defendants’ wrongful conduct.

[…]

[89] In my view, the Plaintiffs have not shown that the IETLS is in any manner “unfair” to them based on their background. In particular, given the high test results of persons from Italy, Poland, and Portugal, it cannot be said that the test discriminates against persons from non-English speaking countries. While it is true that a greater percentage of English-speaking candidates pass the benchmarks than non-English-speaking applicants, this can hardly be surprising and more importantly does not in itself establish that there is a bias against non-English speaking applicants.

N.B. – The appeal from this decision was dismissed by the Federal Court of Appeal: Cabral c. Canada (Citizenship and Immigration), 2018 FCA 4 (CanLII).

R. v. Ibrahem , 2016 ONSC 3196 (CanLII)

[36] Mr. Ibrahem is a person with a first language other than English but with an ability to communicate and understand English. When he had the assistance of an interpreter of his first language, he was not deprived of his legal rights to remain silent or to give a voluntary statement.

[…]

[38] There has been no deprivation of Mr. Ibrahem’s right to silence within section 7 of the Charter of Rights and Freedoms. He had an operating mind as he communicated with police officers. He was not subjected to pressure or trickery by police officers.

H.M.T.Q. v. Blackduck, 2014 NWTSC 58 (CanLII)

[4] Mr. Blackduck’s first language is Tłı̨chǫ (which was also referred to as “Dogrib” during the evidence at the voir dire). His position that the statement should not be admitted is largely based on the fact that when it was taken, Mr. Blackduck did not have the assistance of an interpreter. He argues that his limited comprehension of the English language and his limited ability to express himself in that language makes the statement inadmissible.

[…]

[83] I accept that Sgt. Landry, for the reasons he explained in his evidence, believed that Mr. Blackduck understood him. But that belief does not establish that in fact, Mr. Blackduck did understand everything he was being told that day, and in particular, that he understood the caution. Having an understanding of language to function in certain types of interactions is not the same thing as understanding rights, legal concepts and the potential ramifications of certain decisions.

[…]

[88] The assessment of voluntariness is a contextual exercise, and is highly fact-specific. Here, the issue boils down to whether Mr. Blackduck understood his right to remain silent. Bearing in mind that voluntariness implies an awareness of what is at stake, and of the implications of speaking, or not speaking, to the authorities about the alleged events, I am not satisfied that it has been established to the required standard of proof. I am not satisfied beyond a reasonable doubt that Mr. Blackduck understood his right to remain silent and gave that right up with a full understanding of what was at stake in speaking to Sgt. Landry that day. I am also not satisfied he fully appreciated that what he was telling Sgt. Landry could be used in a prosecution against him.

[89] I accept that the officers involved in this matter did not believe that there was any issue with Mr. Blackduck’s level of understanding of what they were telling him. But when dealing with someone whose first language is not English, it may be prudent for police officers to err on the side of caution and seek the assistance of an interpreter to ensure that detainees have a clear understanding of their rights, before attempting to take a statement from them.

R. v. J. K., 2011 ONSC 800 (CanLII)

[57] In this case, the legal test is whether the accused’s understanding and ability to communicate in the English language was so deficient that it was impossible for him to have understood the police or to have made any statements in English (para 44 Lapoint (sic), para. 33 L.B.). At the voir dire, the court must determine “the accused’s ability to comprehend and communicate in the language of the statement” (para 44 Lapoint (sic)).

[58] Given the evidence in this voir dire, as I have said above, I have no hesitation in concluding that J.K. had sufficient communicative ability in English that he could understand the type of questions asked and understand the type of responses he gave during the course of the videotaped interview.

[59] The Defence counsel submitted J.K. could have better communicated through an interpreter. I don’t disagree that his answers might have been more eloquent or thorough. However, that is not the test. If the possibility the accused might communicate better through an interpreter were the test, the police would be faced with the task of having an interpreter at interviews in all cases where English was the accused’s second language or any number of other occasions such as where the accused’s English language skills are deficient even if English is the accused’s first language. What about statements when an accused is arrested at the scene or in the police cruiser or to third persons etc.? The list would be endless.

[60] To be clear, I am not suggesting that police do not have to provide an interpreter where it is clear or there is good reason to believe that the person being interviewed has genuine difficulty understanding the questions or has genuine difficulty in expressing their (sic) answers because of language comprehension or proficiency. Failure to do so puts the admissibility of the statement at risk.

HMTQ v. Pelletier , 2002 BCSC 561 (CanLII)

Fair Hearing

[46] Mr. Pelletier contends that if he is not accorded a [parole eligibility] hearing in the French language, he will be deprived of his right to a fair hearing as guaranteed by s. 7 of the Charter. Section 7 reads:

Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

[47] Mr. Pelletier makes the point that most of the witnesses to be called, including himself, speak French, and thus a hearing conducted in English will not be fair because something will inevitably be lost in the translation from the French language to the English language.

[48] I cannot accept this submission. While there is no doubt that Mr. Pelletier is entitled to a fair hearing, whether it be by virtue of s. 7 of the Charter or at common law, I cannot agree that the use of interpreters will result in an unfair hearing. While for all practical purposes it would be more convenient for Mr. Pelletier to have his hearing in French, the fact that it will be in English does not inevitably result in an unfair hearing. Translators can and will be provided as needed; hearings involving translators are common place in all courts. Special care is needed when a hearing requires a translator, but the courts regularly operate in such situations with the assistance of translators.

[49] To accept Mr. Pelletier’s submission on this point would be to accept the proposition that all persons who require the assistance of translators in the Province of British Columbia cannot have fair hearings. Given the number of different ethnic origins of people in British Columbia and the languages they speak, it would be impossible to provide judges and juries fluent in all these languages.

[50] It is significant that s. 14 of the Charter provides for the use of interpreters. The purpose of s. 14 is to protect the right to a fair hearing. In the Société Des Acadiens case, supra, Beetz J. said, at p. 577:

The common law right of the parties to be heard and understood by a court and the right to understand what is going on in court is not a language right but an aspect of the right to a fair hearing. It is a broader and more universal right than language rights. It extends to everyone including those who speak or understand neither official language. It belongs to the category of rights which in the Charter are designated as legal rights and indeed it is protected at least in part by provisions such as those of ss. 7 and 14 of the Charter:

7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

14. A party or witness in any proceedings who does not understand or speak the language in which the proceedings are conducted or who is deaf has the right to the assistance of an interpreter.

The fundamental nature of this common law right to a fair hearing was stressed in MacDonald, in the reasons of the majority, at pp. 499-500:

It should be absolutely clear however that this common law right to a fair hearing, including the right of the defendant to understand what is going on in court and to be understood is a fundamental right deeply and firmly embedded in the very fabric of the Canadian legal system. That is why certain aspects of this right are entrenched in general as well as specific provisions of the Charter, such as s. 7, relating to life, liberty and security of the person and s. 14 relating to the assistance of an interpreter.

[51] In R. v. Watts, Ex Parte Poulin, supra, Verchere J. said at p. 224:

In holding, as I do, that the law of this Province requires that trials in provincial Courts be conducted in English, I am not overlooking the asserted unfairness of this court to a Canadian who speaks only French. But, in my opinion, when the rights of an accused person ignorant of the English language are observed and the evidence given at the trial translated to him, as it must be (see R. v. Lee Kim (1915), 11 Cr.App.R. 293), it cannot be assumed that any fairness to him will then arise.

[52] For the foregoing reasons, I do not accept Mr. Pelletier’s submission that a proceeding conducted in English will result in an unfair hearing.

R. v. Butler , 2002 NBQB 325 (CanLII)

[15] Fundamental differences exist between the concept of legal rights and language rights. […]

[25] Although I have decided that Mr. Butler's language rights pursuant to section 20(2) have not been violated, I, nevertheless, am of the opinion that language can be and is, in this case, an important factor to be considered in determining whether Mr. Butler's ability to make full answer and defence has been impaired due to his failure to obtain disclosure in English.

[…]

[28] Disclosure is not a process which is extrinsic to the advancement of the prosecution's case. Although it occurs prior to the commencement of the trial proper, it is so inextricably linked with the ability of the accused to make full answer and defence, that is it (sic), in my opinion, co-extensive with the right to a fair hearing.

[…]

[35] These cases are supportive of my opinion that cases may arise in which the accused could successfully establish that the failure to provide translated disclosure in the official language of his choice effectively prejudices his right to make full answer and defence.

[…]

[38] The facts of this case can be readily distinguished from that of Rodrigue. Firstly, Rodrigue was tried in the Yukon Territory, as opposed to New Brunswick which is the only officially bilingual province in Canada. The Charter demonstrates a constitutional objective of linguistic duality for this province. Due to the province's uniqueness, a more exacting standard of disclosure may be warranted. […]

[51] The accused has affirmed that he has been prejudiced owing to his inability to understand the disclosure provided in the French language. This assertion, without more evidence as to the actual effect on his ability to exercise his constitutional rights is, in my opinion, insufficient to prove on a balance of probabilities that he has suffered actual prejudice. The onus is on Mr. Butler to show at the very least that the nature of the disclosure in this case, realistically denied him the opportunity to assess the evidence and make informed decisions about his defence.

[52] Having considered all of the facts of this case, I have concluded that denying a request for translation may, in some cases, amount to a breach of Charter rights. Nevertheless, in this particular case, Mr. Butler has failed to discharge the evidential burden. Accordingly, I find that he has not established a violation of section 7 and section 11(d) of the Canadian Charter of Rights and Freedoms.

R. v. Ansary , 2001 BCSC 1333 (CanLII)

[64] Notwithstanding that he voluntarily participated in the interview process and notwithstanding that there was no breach of his right to counsel, Mr. Ansary's difficulties with the English language bring into question the fairness of the interrogation process used by the police in this case.

[65] Although Mr. Ansary never asserted a right to silence so as to engage a breach of s. 7 of the Charter in the usual sense of the desire to remain mute being overridden by police conduct, he did continually assert his desire to explain all that had happened. He did so in conjunction with the assertion of his need for an interpreter.

[66] Section 14 of the Charter provides that a party who does not understand or speak the language in which proceedings are conducted has the right to the assistance of an interpreter. The section does not, however, specifically extend that right to the pre-trial stage of criminal proceedings. In my view, however, the fundamental right to a fair trial protected by s. 7 of the Charter requires that the impact of any language difficulties faced by an accused must be considered if the state seeks to adduce evidence at trial of incriminatory statements made by an accused in the investigative stage.

[…]

[76] In my view, when the police questioned Mr. Ansary in the face of his immediate and continued requests for an interpreter prior to the first interview without obtaining the services of an interpreter or without having the questioning performed by an officer that could speak Pushto, they took a chance that any statements he made later might be determined to be inadmissible. Although the police were not bound to provide an interpreter, their determination to proceed without one brought to the fore the issue of the fairness of their conduct in relation to the fairness of the trial process and the risk that the evidence they obtained would be tainted by unfairness.

[77] I am satisfied, notwithstanding the evidence of the police officers to the contrary, that Mr. Ansary did not fully understand all of the questions asked. The transcripts of the two interviews also lead me to conclude that the police may have misunderstood or misinterpreted some responses. More importantly, the police never gave Mr. Ansary the opportunity to correct any lack of understanding or misunderstandings or provide a full explanation by convening a subsequent interview with the aid of an interpreter so that he could explain all that had occurred as he had always said he wanted to do.

[78] I am satisfied that Mr. Ansary's request for an interpreter to assist him in a full explanation was genuine. It was not oblique and did not arise from any improper motivation. I am also satisfied that Mr. Ansary's willingness to talk to the police and thus forfeit his right to silence must be interpreted as having been conditional upon his being given the opportunity to provide a full explanation with the benefit of an interpreter.

[79] I find that in those circumstances the failure of the police to allow an opportunity for a full explanation with the benefit of an interpreter was a breach of Mr. Ansary's s. 7 right to silence. Accordingly, the statements made both prior to and during the first and second taped interviews are inadmissible. Similarly, the derivative interview relating to the calendar is inadmissible. Since trial fairness would be affected by the admission of what is conscriptive evidence, these statements cannot be saved under s. 24(2) of the Charter.

R. v. Rodrigue , 1994 CanLII 5249 (YK SC)

[p. 28] The right is a right to the disclosure of the evidence as it exists, not the right to have the assistance of the prosecution in the sense of enhancing the ability of counsel for the defence, or of the accused himself, to assess and evaluate the significance or the weight that could be attached to a certain item of evidence.

[…]

[pp. 30-31] There may be circumstances where the court would, before the trial, make a ruling that without the translation of a document from a language other than an official language to an official language, or from one official language to the official language in which the accused has chosen to be tried, the right of the accused to "make full answer and defence" or to a fair hearing would be compromised. We will have to wait for another case to determine under what circumstances the court would come to such a conclusion. In the present circumstances, the accused and his counsel admit that they are both able to understand English and they do not allege that the accused would suffer any prejudice if the statements and documents disclosed by the prosecution before the trial were not accompanied by a French translation. The claim of the accused is founded exclusively on the principle that since French has been chosen as the official language of the trial, he has a right to obtain disclosure of the evidence accompanied by a French translation. I have rejected this argument.

N.B. – The appeal of this judgment was dismissed on other grounds by the Yukon Court of Appeal and the application for leave to appeal to the Supreme Court of Canada was dismissed.

R. v. Fiddler , 1994 CanLII 7396 (ON SC)

[13] Of the evidence before me, only the affidavit of Albert Fiddler required the assistance of an interpreter. From that fact, I infer that the applicant’s first language is Oji-Cree and not English, and that his present grasp of the English language and his ability to speak it is otherwise unknown. In his affidavit, Albert Fiddler says:

(1) that he is unfamiliar with Kenora and does not travel there often;

(2) that if his trial is held there, he and witnesses from Sandy Lake would be required to travel 400 kilometres;

(3) that if the relief he seeks is not granted, his Ojibway-Cree culture and language may constitute a barrier to understanding for non-aboriginal jurors;

(4) that the meaning of his testimony, and that of other witnesses he might choose to call, would be lost even if an interpreter is used.

[14] In essence, Albert Fiddler asserts that the factors of culture, language and geography impact negatively on his ability to have a fair trial unless by a jury of his cultural peers, in the community of Sandy Lake.

[…]

[45] There can be no doubt that the right to trial by jury is one of the principles of fundamental justice referred to in s. 7 of the Charter. In criminal and penal matters the right to the benefit of trial by jury is specifically guaranteed by s. 11(f) of the Charter. History confirms the place of trial by jury as an essential part of our criminal justice system and as a fundamental constitutional guarantee of the rights of the individual in a democratic society: R. v. Bryant, supra, at p. 233 C.R.R., p. 423 C.C.C.

[...]

[49] The main thrust of the applicant’s argument is directed to ss. 7 and 11(d) of the Charter; it posits:

(1) that the application of s. 6(2) of the Juries Act results in a predominantly non-aboriginal jury;

(2) that a jury so composed cannot grasp the cultural issues that are essential to an understanding of the applicant’s case;

(3) that because the meaning of words and gestures is culture-specific, a direct translation cannot capture the underlying meaning of what is spoken;

(4) that the aboriginal community of Sandy Lake has a Charter-recognized interest in addition to that of the applicant, and that a jury array gathered pursuant to s. 6(2) of the Juries Act results in a tribunal which cannot be considered impartial by the Sandy Lake community;

(5) that the terms “peers” and “community” require narrower definition in the circumstances to ensure the legitimacy of the hearing and to foster the goals of the jury process as an educative institution thereby encouraging greater aboriginal participation in the administration of justice.

[...]

(i) Language and issues of comprehension

[63] In a criminal trial, full understanding of the evidence is manifestly essential not only for the accused but also for the trier of fact. It is the court’s responsibility to facilitate communication and to ensure that appropriate means of communication are provided: R. v. Lee Kun, [1916] 1 K.B. 337 at 342, [1914-15] All E.R. Rep. 603 (C.C.A.), per Lord Reading. (We are not concerned here with a French language trial or a bilingual trial. It is assumed that the trial will ultimately take place in the English language.) Where relevant and probative evidence can better be given in a language other than the official language of the trial, the use of interpreters has, to this point, been the accepted means of ensuring full understanding. In criminal proceedings, the provision of a qualified interpreter at the expense of the state is clearly one of the principles of fundamental justice: Graham J. Steele, Court Interpreters in Canadian Criminal Law (1992), 34 Criminal Law Quarterly 218 at p. 234; Reference re s. 94(2) of the Motor Vehicle Act (B.C.), supra, per Lamer J. (as he then was) at pp. 44-45 C.R.R., p. 301 C.C.C.; Société des Acadiens du Nouveau-Brunswick Inc. v. Assn. of Parents for Fairness in Education (1986), 1986 CanLII 66 (SCC), 23 C.R.R. 119 at p. 172, [1986] 1 S.C.R. 549 at p. 622, per Wilson J. Indeed, the right to an interpreter is specifically guaranteed by s. 14 of the Charter.

[...]

[72] In the present case, the complainant was shunned by the community of Sandy Lake and had to be removed from the community for her own emotional safety. In balancing the rights protected under s. 7 of the Charter, I have considered the context of this case, particularly the prominence and the position of the accused and his family in the Sandy Lake community and the evidence that the complainant was shunned by that same community. I find that it would sacrifice the rights of the complainant to direct that a trial take place with a jury composed substantially of persons from that community or its environs.

[...]

[87] For the preceding reasons, I hold the view that the applicant has not made out a case under s. 7 of the Charter [...].

R. v. R.T., 2016 QCCQ 689 (CanLII) [judgment available in French only]

[OUR TRANSLATION]

[2] Since the accused, the alleged victim and three prosecution witnesses are hard of hearing, all the proceedings were interpreted from French to Quebec Sign Language (QSL) and from QSL to French, from the outset of the case. The interpretation was carried out by certified interpreters who took turns interpreting throughout the proceedings. Their work essentially consisted of interpreting everything that was said during the trial for the benefit of both the accused and justice system representatives, witnesses and the alleged victim.

[3] On the 10th day of the hearing, the defence first raised the fact that the accused seemed to have some trouble comprehending. These problems apparently followed the accused’s testimony as part of a voir dire held on the ninth day of the hearing. With the parties’ consent, the Court held a hearing to clearly identify the nature of these difficulties. At the end of this hearing, given the evidence showing that the accused was able to read, the Court ordered that all the hearings held up to then be transcribed, and postponed the rest of the trial so that the accused would have time to read the transcription. The Court also indicated to the defence that it would take into consideration any request to cross-examine some witnesses again following this reading.

[…]

[26] In this case, after performing a detailed analysis of the evidence and the applicable principles, the Court finds that it is not necessary to declare a mistrial. In the specific context of this case, the comprehension problems raised by the accused do not suggest that either s. 14 of the Charter or the accused’s right to be present at his trial were violated.

[27] After considering all of the evidence filed, the Court finds that the accused knows basic QSL and understands the meaning of colloquial speech. Despite the fact that his level is rather low, he is nonetheless clearly functional in this language. On a day-to-day basis, QSL is the language he masters best to communicate at all levels. Based on the evidence, it is the language in which he communicated with the complainant and her son for many years. And it is also in this language that he testified during the legal proceedings instituted against him and that he answered questions in a simple, understandable and consistent manner.

[28] Of course, each individual has his or her own vocabulary. It is also understood that a number of factors may affect the extent of each person’s vocabulary. For example, an individual’s education level and intellectual and cognitive abilities may have an impact on the extent of his or her vocabulary and ability to understand very slight subtleties.

[29] In this case, although the accused seems to have problems understanding more complex vocabulary, this does not make him unable to use either QSL or written French. In the opinion of the Court, the fact that an accused has trouble understanding certain words, concepts or notions does not ipso facto constitute a violation of the accused’s right to be assisted by an interpreter and/or right to be present at his or her trial. Neither does this automatically make the trial unfair. Whether one of these rights has been violated always depends on the particular circumstances of each case.

[30] In the case at bar, the Court reiterates that the accused’s level of understanding is functional and that the quality of the interpretation is not at issue. The Court finds that the comprehension difficulties raised by the accused for the first time on the 10th day of the hearings were related to specific elements and concepts. Since the complainant and three other prosecution witnesses testified using QSL, the accused was able to understand their respective testimonies without an interpreter while watching them in person. Taking into account the fact that the terms they used were simple and familiar, it is clear that the accused was able to fully understand their remarks.

[…]

[33] In this case, taking into account all of the applicable circumstances and principles, the Court finds that the rights of the accused were not violated and that there was no need to declare a mistrial.

R. v. Maurice Frenette , 2007 NBPC 33 (CanLII)

[15] I therefore proceed on the basis that the failure to provide a translated version of a disclosure package may in certain cases constitute a violation of sections 7 and 11(d) of the Charter, but that the failure to do so does not automatically constitute a breach. The issue then becomes under what circumstances does the failure or refusal to translate become a Charter violation?

[…]

[25] In order to place this matter in its proper context, we must first identify what exactly is being requested here by the accused. He is requesting that the Court order, on the basis of his constitutionally protected right to make full answer and defence, that the prosecution have translated from the French language to the English language all documentary evidence and recorded interviews for the benefit of his chosen lawyer. The translation is not for his personal benefit. Mr. Frenette understands fully the French language. He can easily read and fully understand all the documents in the disclosure package. He participated in two interviews with a French-speaking police officer and conversed completely in French. So the benefit of translation is not for him. It is for his lawyer.

[26] Section 7 has been held to hold out important procedural and substantive guarantees to individuals who are alleged to have committed a criminal offence. But the individual claiming the right must not only demonstrate a violation of his right to life, liberty or security of his person, he must also demonstrate that the denial of a right protected by section 7 is contrary to the principles of fundamental justice. The principles of fundamental justice guaranteed by section 7 are not a “free-standing guarantee”, but rather can only be invoked where the law in question violates the “right to life, liberty or security of the person”: see the judgment of Lamer, J. in Reference re s 94(2) of the Motor Vehicle Act (B.C.) 1985 CanLII 81 (SCC), [1985] 2 S.C.R. 486 (S.C.C.). The right to disclosure of evidence is one of basic tenets of the right to fundamental justice: see R. v. Stinchcombe 1991 CanLII 45 (SCC), [1991] 3 S.C.R. 326. The courts have vehemently protected an individual’s right to fundamental justice in the criminal process in all matters, including police investigative techniques, pre-trial proceedings, procedural guarantees, defences and of course the trial itself.

[27] Mr. Frenette has chosen to be represented by a unilingual Anglophone. That is his right. He certainly cannot be obliged to be represented by a francophone lawyer simply because to do so would be more convenient to the state who must disclose its case to the accused. But by the same token, why should the state be obliged to incur the costs of translating the evidence purely for the benefit of the lawyer chosen by the accused?

[28] The situation here must be distinguished from the one in Butler. The situation there was entirely different from the one here. In that case Mr. Butler did not understand the language of the majority of the evidence against him. He personally was at a disadvantage. He could not comprehend the evidence the state intended to use against him as he did not speak the language of the evidence accumulated against him. Yet even under these circumstances the learned justice did not order translation of the evidence, for lack of an evidentiary basis to sustain the motion.

[29] In this case, only the defence lawyer does not understand the evidence against the accused. In such a case, other options are available to the accused. He can hire another lawyer, one who speaks the French language, to assist Ms Mahoney. There is no paucity of bilingual lawyers in this area of the province. He can assist his lawyer by translating the documents himself, or summarizing the evidence for her benefit. He can pay to have the essential documents translated. He could hire a translator, or any other person who has a fluent knowledge of both languages, to assist his counsel, both prior to or at trial. Or he can hire a lawyer who speaks both the French and English language to conduct his defence. All of these options are available to him.

[30] The accused, having chosen trial in the English language, knows that the documentary evidence to be presented against him at the trial on the absolute jurisdiction offences will have to be translated for his benefit and in accordance with his right to a trial in the language of his choice. He also knows that an interpreter will translate all oral evidence at the trial from the French language to the English language. His lawyer will therefore understand the evidence presented against him at court hearings. He also has the benefit of a preliminary inquiry should he so choose for those offences for which he has an election as to his mode of trial.

Pien v. R., 2006 QCCQ 13382 (CanLII) [judgment available in French only]

[OUR TRANSLATION]

[1] The applicants have filed a motion for a stay of proceedings upon the failure to disclose evidence, pursuant to section 7 and paragraph 24(1) of the Canadian Charter of Rights and Freedoms. First of all, it is argued that the Crown did not disclose all the evidence relating to the charge. Second, in the case of the accused represented by Mr. Louis Bigué, the Crown is criticized for not having obtained a copy of the disclosed evidence in English. Finally, despite repeated demands, the prosecution refused to give each of the accused a copy of the disclosed evidence and instead merely sent a copy to counsel present. In light of each of these alleged violations, the applicants ask for a stay of proceedings.

[. . .]

Language of the disclosure

[42] This part of the motion only affects the accused from the Long Point First Nation. The evidence consists solely of the testimony of Chief Steeve Mathias. He admits that he is not as comfortable in French as in English. However, he testifies that he was able to read the documents even though he had to take more time to do so. His lack of understanding has more to do with the phrasing of the charges than with the content of the evidence disclosed.

[43] No other evidence was adduced concerning the degree to which the other accused understood the evidence. The Court cannot make any assumptions in this regard. As the right to disclosure of the evidence is a personal right, the Court also cannot apply the appropriate constitutional remedy for one of the accused to all of them.

[44] As Mr. Mathias was able to read and understand the documents disclosed, at least for the most part, the Court does not see how any prejudice was suffered. The Court agrees with the position of the Ontario Court of Appeal [in Simard] and Quebec courts [in Cameron and Stadnick] according to which it is sufficient to disclose the information in the state in which it is received. In the absence of proof of total incomprehension, it must be concluded that the right to make full answer and defence and the right to a fair trial were not infringed.

10. Arrest or detention

10. Everyone has the right on arrest or detention

(a) to be informed promptly of the reasons therefor;

(b) to retain and instruct counsel without delay and to be informed of that right; and

(c) to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful.

[LAST UPDATE: APRIL 2017]

Annotations

R. v. Bartle , [1994] 3 S.C.R. 173, 1994 CanLII 64 (SCC)

[19] Under these circumstances, it is critical that the information component of the right to counsel be comprehensive in scope and that it be presented by police authorities in a "timely and comprehensible" manner: R. v. Dubois, [1990] R.J.Q. 681 (C.A.), (1990), 54 C.C.C. (3d) 166, at pp. 697 and 196 respectively. Unless they are clearly and fully informed of their rights at the outset, detainees cannot be expected to make informed choices and decisions about whether or not to contact counsel and, in turn, whether to exercise other rights, such as their right to silence: Hebert. Moreover, in light of the rule that, absent special circumstances indicating that a detainee may not understand the s. 10(b) caution, such as language difficulties or a known or obvious mental disability, police are not required to assure themselves that a detainee fully understands the s. 10(b) caution, it is important that the standard caution given to detainees be as instructive and clear as possible: R. v. Baig, [1987] 2 S.C.R. 537, at p. 540, and Evans, at p. 891.

[…]

[40] As this court held in Evans (at p. 892), state authorities have a duty under s. 10(b) "to make a reasonable effort to explain to the accused his right to counsel". In most cases, reading the accused a caution that meets the criteria I have outlined above will satisfy this duty. If the circumstances reveal, however, that a particular detainee does not understand the standard caution, the authorities must take additional steps to ensure that the detainee comprehends the rights guaranteed by s. 10(b), and the means by which they can be exercised: Evans, at p. 892; Baig, at p. 540. […]

[42] […] As I noted earlier, this court has recognized the pivotal function the informational component of s. 10(b) plays. In light of the component's importance in ensuring that the purposes of s. 10(b) are fully realized, the validity of waivers of the informational component should only be recognized in cases where it is clear that the detainee already fully understands his or her s. 10(b) rights, fully understands the means by which they can be exercised, and adverts to those rights. Requiring that these conditions be met ensures that any subsequent waiver of the right to counsel made following a waiver of the informational component will be a fully informed one. Since the informational obligations s. 10(b) imposes on state authorities are not onerous, it is not unreasonable, in my view, to insist that these authorities resolve any uncertainty that might exist regarding the detainee's knowledge of his or her rights, something they can do by simply reading the standard caution, as they are required to do in cases where the detainee does not clearly and unequivocally indicate the desire to waive the informational component.

R. v. Kooktook et al , 2006 NUCA 3 (CanLII)

[126] The trial judge made a number of comments expressing his concerns over the fact that all communications between the fishery officers and the respondents were conducted in English. He was uneasy as to whether the respondents fully understood what was said to them. He made the following general comment (at para. 42):

“In the jurisdiction of Nunavut, English is a second language to many Inuit. Approximately 80% of its citizens are of Inuit descent. Levels of fluency and comprehension in English vary widely. Basic literacy in English cannot be assumed. This Court is aware that many legal concepts do not directly translate from English into Inuktitut or Innuinaqtun.”

The trial judge has many years of experience in the Nunavut courts so as to enable him to make this statement.

[127] Language was a particular concern with respect to Mr. Tucktoo. Wildlife Officer Ashevak testified that Mr. Tucktoo occasionally needs help with English. The fact that Officer McCotter resorted to a “lay” explanation of his legal rights suggests that he too may have been unsure of the level of Mr. Tucktoo’s comprehension.

[128] Here again the lack of a complete and accurate record is problematic. The Crown need not prove that a person giving a statement fully comprehends the English language (or whatever language the cautions are given in and the statement taken). But, where there is evidence suggesting that comprehension may be suspect, the authorities cannot expect a ruling on voluntariness without providing evidence that enables the judge to examine all of the circumstances. And language ability is one of those circumstances. If there is an incomplete or unreliable record, then the Crown runs the risk of failing to meet the burden of proof. And, in this case, the interviews were neither audio or video-recorded.

[129] The trial judge commented further on this aspect of the case in his reasons (at para. 44):

“Prudence would suggest that an investigator proposing to solicit a statement from an Inuk accused in English make some enquiry to establish the citizen’s level of comprehension in English, their ability to communicate effectively in English and their overall literacy level as determined by their formal education. A bare recital of the police caution and Charter rights will not necessarily be sufficient to establish comprehension in English particularly given the convoluted wording of the standard primary and secondary police caution. Where an accused’s level of fluency or comprehension in English is low, every effort should be made to accommodate the citizen’s obvious language needs. Where requested, interpretation should be provided. Even where not requested, if difficulties are obvious, interpretive services should be offered.”

[130] In my opinion, these comments are well-founded. They echo concerns that have been expressed by judges of the northern courts for decades. An example can be taken from R. v. Haniliak, [1985] N.W.T.R. 352, where Marshall J. of the Supreme Court of the Northwest Territories, said (at p. 354):

“I might make some general statements at the outset on the taking of statements in the North, because I think that it is very difficult for the police to satisfy the traditional rule as to voluntariness and for them to satisfy the requirements now of the Charter. The reasons for the difficulty are several, and some, I think, are more subtle than others. First of all, some of the people in the North are untrained in matters of Canadian criminal justice, police matters and legal matters. Many of the people in northern communities, for reasons of culture, a lack of exposure to the law, education, geographic separation and many other reasons, it seems to me, require a fuller explanation of their rights when taking a statement, an explanation of their rights and a clearer warning on arrest and detention.

If the Charter of Rights and Freedoms is to be meaningful to people who have had little exposure to courts and police, then the explanations given in these cases to people who lack experience will have to be more thorough and more carefully done. I note here that the officer not only read the warning and the appropriate script, but, as well, gave an explanation, which, in my view, is often required.”

R. v. Vanstaceghem, 1987 CarswellOnt 100, [1987] O.J. No. 509, 21 O.A.C. 210, 2 W.C.B. (2d) 308 (ON SC CA) [hyperlink not available]

[18] I am not persuaded, however, that the only question before the Summary Conviction Appeal Court was one of credibility. The crucial question, which was a question of law, was whether the accused had been advised of his rights pursuant to s. 10(b) of the Charter in a meaningful and comprehensible manner. The circumstances were unusual. Having regard to the officer's knowledge that the respondent was French, that the respondent certainly was not at ease with the English language in that he did not understand the breathalyzer demand, I am of the opinion that special circumstances existed which required the officer to reasonably ascertain that the respondent's constitutional rights were understood by him. R. v. Anderson (1984), 45 O.R. (2d) 225; 10 C.C.C. (3d) 417 (Ont. C.A.); R. v. Baig, [1985] O.J. No. 150; 9 O.A.C. 266.

[19] We were informed by counsel that the Canadian Forces Base at Trenton is a bilingual military base where military police officers who speak the two official languages of Canada are available. It can be inferred from the evidence that legal advice is available to servicemen. Where the arresting officer was compelled to produce a breathalyzer demand card in French before the respondent understood a simple request, the only reasonable conclusion was that the respondent should have been informed of his constitutional rights in his own language, either by means of a card or through an interpreter or by calling for the assistance of a bilingual officer. In the special circumstances of this case the use of the word "counsel" clearly did not bring home to the respondent the fact that he had the right to a lawyer, that is, le droit "d'avoir recours sans délai à l'assistance d'un avocat et d'être informé de ce droit."

[…]

[21] In my opinion, the arresting officer's belief that the respondent understood his constitutional rights and made an informed choice to waive them was not reasonable in the special circumstances of his detention. The finding made by the provincial judge was based on the officer's belief about the respondent's ability to understand him and cannot be supported on the basis of credibility alone, which, in any event, is tenuous in this case. The question of whether the respondent was properly informed of his constitutional rights was not properly addressed by the provincial judge. In my opinion, the learned Appeal Court Judge was correct in his conclusion that the respondent's rights under s. 10(b) of the Charter were violated.

R. v. Au Yeung , 2016 ABQB 313 (CanLII)

[47] What was important, was that Cpl. Frost was trying to explain the Charter s. 10 rights to the Applicant. Within 3 minutes, he was told that a Cantonese-speaking RCMP member was going to assist, then there were discussions between Cpl. Frost and RCMP dispatch regarding the Cantonese-speaking RCMP member. All the while, Cpl. Frost was trying to keep the Applicant advised of these goings-on.

[…]

[49] This Court does not find that Cpl. Frost breached this aspect of the Applicant’s Charter s. 10 rights. Surely, neither the Charter nor the Supreme Court of Canada expects all police officers to speak all languages that are spoken in Canada. Cpl. Frost, in addition to trying to explain the Applicant’s Charter rights to the Applicant as best he could, immediately tried to elicit the services of Cst. He as soon as was practicable in the circumstances. In carrying out these steps, this Court finds that Cpl. Frost fulfilled his duty (sic) advise the Applicant of the reasons for his arrest, and to inform the Applicant of his right to retain and instruct counsel without delay. In any event, Cpl. Frost was able to engage the services of Cst. He to interpret for him. Cst. He spoke with the Applicant 12 minutes after Cpl. Frost had arrested the Applicant, and Cst. He reiterated the Applicant’s Charter rights and caution.

[50] The Applicant argues that Cpl. Frost did not fulfill his responsibility to fully articulate to the Applicant the Applicant’s Charter s. 10(b) right, as Cpl. Frost did not provide the full right from his “Charter card.” Again, this comes down to a question of whether Cpl. Frost’s paraphrasing of the content of his “Charter card” serves to “undermine [the Applicant’s] right to counsel.” Remembering that Cpl. Frost does not speak Cantonese, the complexity of the wording of his “Charter card” would undermine the right that he was attempting to articulate to the Applicant. Cpl. Frost explained to this Court that he felt the better way to approach the Applicant was to provide him with the Charter right in simpler layperson’s language. He recognized that this was not a “best practices” approach, but given the circumstances, he felt this was the best approach.

[51] This Court finds that what Cpl. Frost did was the best he could do in the circumstances, and would perhaps give the Applicant some idea of his rights “without delay.” This attempt did not undermine the Applicant’s right to counsel, but, in fact, advised him of it. Cst. He then gave the Applicant a full explanation of that right.

[52] In the case at bar, the first reasonable opportunity for the Applicant to exercise his Charter s. 10(b) right arose once Cst. DeBow took him to the RCMP detachment. Cst. DeBow then placed the Applicant in a private telephone room and was provided the opportunity to contact counsel, and in fact did speak with counsel through the assistance of a Cantonese interpreter that Legal Aid provided.

[53] There has been no breach of the Applicant’s Charter s. 10(b) rights.

R. v. Singh , 2015 ONSC 7376 (CanLII)

[3] Counsel for the defense submits that the utterances and statement must be excluded because were (sic) not voluntary, and the Defendant was not properly advised of his right to counsel under s. 10(b) of the Charter. The Defendant contends that he was pressured into making a statement, and that his command of the English language was insufficient to understand his rights or to have comprehended the caution that he was given by the police.

[…]

[5] In R v Bartle, 1994 CanLII 64 (SCC), [1994] 3 SCR 173, Chief Justice Lamer stated that “absent special circumstances indicating that a detainee may not understand the s. 10(b) caution, such as language difficulties or a known or obvious mental disability, police are not required to assure themselves that a detainee fully understands the s. 10(b) caution”. Counsel for the defense submits that special circumstances do exist here, in that Defendant was not able to adequately understand or communicate in English.

[6] Having viewed and listened to the full videotape of Defendant’s police statement, and having reviewed the transcript of that statement produced by a court reporter, I am compelled to agree. Much of what the Defendant said was incomprehensible. To be clear, the Defendant is not entirely without knowledge of the English language, and, as one of the officers conducting the interview with him pointed out in his testimony, some of the Defendant’s ostensible confusion may be a result of his being evasive in his responses to questions to which he had no good answer. However, as the Court of Appeal noted in R v Lapointe, [1983] OJ No 183, mastery of a language is not an all-or-nothing proposition.

[7] The Defendant has lived in Canada for nearly two decades, and has been a taxi driver and a truck driver. Counsel for the Crown submits that these occupations require some knowledge of the language. I concur that a rudimentary command of English is probably required for obtaining a license and driving safely in Ontario. Moreover, the Defendant swore an affidavit in support of this application to exclude evidence, and that affidavit was in English and was not accompanied by a translation or by an affidavit of an interpreter indicating that it was explained to the Defendant in his mother tongue, Punjabi.

[…]

[12] However, a review of the videotape and the transcript reveals a crucial gap in his comprehension. It is obvious in watching and listening to the Defendant that he began speaking without having absorbed the meaning of the s. 10(b) caution, and that he never did comprehend this during the entire duration of his statement.

[…]

[16] In the result, the Defendant never confirmed that he been (sic) given the appropriate s. 10(b) caution and, one can tell from his level of incomprehension, never understood the caution at all. The right words may have been stated by the police officers, but they landed on uncomprehending ears. The Defendant’s videotaped police statement was therefore involuntary and is inadmissible.

[17] The same holds true for the statements made by the Defendant upon his arrest and prior to being taken to the police station. At that stage, he had either not yet been cautioned, or had not had the s. 10(b) caution explained to him in full. Officer Andrew Pak testified that he had given the Defendant a paraphrased version of the standard caution, having left the formal version in his notebook in his scout car; Officer Gregory Manuel testified that he gave the Defendant an informal caution but did not provide him with the entire formal version. Either way, there is no indication that the officers took the time to slowly and carefully explain the meaning of the caution to the Defendant.

R. v. Mathieu , 2014 ONCS 6124 (CanLII) [judgment available in French only]

[OUR TRANSLATION]

[101] Language limitations are closely linked to the communication and understanding of this right to remain silent. The accused answered “Mhmm” three times during this exchange. It is unclear to what extent this caution was understood, particularly when 16 hours earlier, it had been determined that these rights had to be communicated to the accused in French.

[102] The right to remain silent under s. 7 dovetails closely with the right to retain and instruct counsel under s. 10(b).

[103] Whether or not the words used to inform the accused of his right to remain silent were sufficient, the problem was made worse by the fact that the words used to communicate this right and the confusion surrounding whether the accused wanted to speak with his lawyer at that time compounded the fact that this right had been communicated to the accused in English and that this same police department had concluded, 16 hours earlier, that the accused’s limited English required that his right be read to him in French. Detective Laver knew that this conclusion had been reached but ignored it.

[104] Detective Laver made no special effort to explain the nature of the right to remain silent or to retain and instruct counsel and did not obtain a true waiver of that right, even though she was aware of the accused’s language limitations and knew that he had twice stated that he was waiting for his counsel to arrive.

[105] These two detectives spent one day on the investigation, spoke with the complainant and the eyewitness, obtained information from two officers and were ready to begin the questioning. They wanted to proceed immediately with the questioning and not delay it, which would have been the case if they had to arrange for an interpreter or notify a French-speaking police officer to take over the questioning. Their interest in this case, or their desire to press ahead without further delay, prevented the accused from receiving a valid explanation of his right to counsel and from understanding that he had the right to remain silent.

R. v. Soares , 2013 ONSC 126 (CanLII)

[26] The recorded statement demonstrates that Mr. Soares seemed to understand a good deal of what was said to him by Ms. Peters. However, as noted above, when colloquialisms or metaphors were used by the officer, Mr. Soares faltered. More fundamentally, in the context of a police interrogation, there is more to communication than just comprehension; an accused person must be able to participate in a meaningful way, expressing him or herself effectively. That was lacking in this case. It ought to have triggered a concern that Mr. Soares might not have understood his rights when consulting with duty counsel. As evidence of this, I refer back to Mr. Soares’s description of duty counsel’s advice to him – to be very careful when speaking with the police. While duty counsel was not called as a witness, this aspect of Mr. Soares’s evidence leads me to conclude that either Mr. Soares did not understand the advice he was given, or that he received terrible advice from the lawyer with whom he spoke. I suspect (and hope) that it was the former.

[27] In all of the circumstances, the interview of Mr. Soares was unfair and required that the language issue be addressed directly in the context of the right to counsel. For this reason, I found s. 10(b) was infringed.

R. v. Arjun , 2013 BCSC 2076 (CanLII)

[86] The overarching inquiry appears to be whether the accused was able to secure meaningful, comprehensible legal advice based on an objective assessment of the accused’s ability to understand English at a level where legal advice would be understood.

[…]

[90] The question then is whether there were special circumstances relating to Ms. Arjun’s ability to understand English such that, in order to exercise her right to counsel, the police were required to take extra steps to ensure she understood her rights and had the opportunity to meaningfully exercise them by using an interpreter to speak to counsel or by consulting a Hindi-speaking lawyer. I find that the police were required to take those steps.

[…]

[98] In this case, I find that it should have been evident to the police that Ms. Arjun did not understand her rights. I have concluded that because of her limited comprehension of the English language, the accused required an interpreter to sufficiently comprehend her Charter right to counsel. There are objective indicia that the police should have been aware that Ms. Arjun’s English skills were not sufficient to allow her to understand either her right to counsel or the advice she would have received in her consultation with counsel. These indicia include her strong accent; her requests for an interpreter, both through counsel and of her own accord; her assertions at various times that she did not understand her rights; and the confusion on her part as to whether and when she had spoken to a lawyer. I find that Ms. Arjun was not able to secure meaningful, comprehensive legal advice in the absence of an interpreter to speak to counsel or without consulting a Hindi-speaking lawyer. Accordingly I find that a breach of the s. 10(b) rights of the accused occurred.

R. v. Barros-DaSilva, [2011] O.J. No. 3794, 2011 ONSC 4342 [hyperlink not available]

[23] The issue here is whether or not Mr. Barros-DaSilva was advised of his rights to counsel in a language that was comprehensible to him and permitted him an opportunity to exercise that right in a meaningful way.

[24] It is settled law that where "special circumstances" exist, a police officer is required to take further steps to reasonably ascertain that an accused person understands his or her constitutional right to counsel: R. v. Shmoel, [1998] O.J. No. 2233 at para. 8; R. v. Colak, [2006] O.J. No. 4953.

[…]

[28] "Special Circumstances" arise when there are some objective indicia that an accused person's comprehension of the English language may be limited for various reasons, for example, because he or she is a relatively recent immigrant to Canada from a non-English speaking country and there is difficulty in comprehending their rights to counsel. In such circumstances, there is an added onus on the police to take some meaningful steps to ensure that the accused actually understands his or her rights in a meaningful and comprehensible way. Relevant circumstances include factors such as: age, education, sophistication, language, and mental condition. […]

[29] While there is not a comprehensive list of situations in which "Special Circumstances" can arise, Justice Gage outlined situations which should alert an officer as to the existence of Special Circumstances. These may include:

1. A failure to respond to questions dealing with the right to counsel coupled with a statement to the effect "I don't speak the best English.": R. v. Lukavecki, [1992] O.J. No. 2123;

2. the necessity of speaking slowly to an accused who speaks English "a little bit.": R. v. Ly [1993] O.J. No. 268;

3. a negative response by an accused when asked if the right to counsel is understood and thereafter, the failure to provide verbal or written instruction about that right in the first language of the accused: R. v. Lim, [1993] O.J. No. 3241, per Bigelow J. (O.C.J.);

4. the failure to honour the accused's request for an interpreter or an officer or a lawyer who speaks his or her first language: R. v. Ferreira, per Wren J. (S.C.J.) dated Dec. 6, 1993;

5. knowledge that the language of the accused is not English coupled with an indication that the breath demand was not understood and repeated statements by the accused that he did not understand his right to counsel or understand the meaning or function of duty counsel: R. v. Shmoel, [1998] O.J. No. 2233.

[30] The subjective belief of the officers that the accused fully understood their rights is not determinative of the issue of "special circumstances". Even where a court accepts the police testimony that the officers believed the accused had fully understood their rights as explained in the English language, the factual findings may still raise "special circumstances". It is a reversible error of law to conclude there are no special circumstances on basis (sic) of the officer's subjective belief about the accused's ability to understand his legal rights. R. v. Vanstaceghem, supra, at pg. 6; R. v. Shmoel, [1998] O.J. No. 2233 (Ont. Ct. Jus.) at para. 9; R. v. Lukavecki, [1992] O.J. No. 2123 (Ont. Gen. Div.); R. v. Olivia Baca, [2009] O.J. No. 1926 (Ont. Ct. Jus) at para. 2; R. v. Peralta-Brito, [2008] O.J. No. 81 (Ont. Ct. Jus.).

[31] A failure by the accused to assert a difficulty in communication (i.e. the accused did not specifically ask for an interpreter or duty counsel with a specific language) is not determinative of the issue of "special circumstances". R. v. Oliva Baca, supra, at para. 25; R. v. Silva, supra, at paras. 26-27; R. v. Peralta-Brito, supra.

[…]

[33] I find that while the learned trial judge recited a significant portion of the evidence, he did not engage in the necessary legal analysis of the issue which was before the court on the motion, which was whether or not the evidence established the existence of "special circumstances" which would require the police officers to take further steps to ensure that Mr. Barros-DaSilva was advised of his rights to counsel pursuant to s. 10(b) of the Charter in a meaningful and comprehensible manner. Instead, he based his decision on the officers' subjective belief of the appellant's knowledge and comprehension of the English language in the face of objective evidence that special circumstances existed which should alert the officers to take further steps to ensure meaningful comprehension of the appellant's rights. This in my view is an error in law.

[34] It is clear from the evidence that upon speaking with Mr. Barros-DaSilva, it was readily apparent to both Cst. Skleryk and Cst. Shillington that Mr. Barros-DaSilva spoke with an accent and that English was not his first language.

[…]

[46] With respect to the impact of the Breach on the Charter-Protected interests of the Accused, I find that the state's decision to not provide the appellant with a Portuguese speaking translator, lawyer, or police officer effectively deprived him of his entire section 10(b) rights, and further, his right against self incrimination and right to silence. Accordingly, the impact on the appellant's Charter protected interest was serious and thus, favours exclusion.

R. v. Therrien , 2006 BCSC 1739 (CanLII)

[36] Both the English and French versions of what Cpl. Gobeil told Mr. Therrien complied with the constitutional requirements of s. 10(b) of the Charter. The French version provided even more information than the English one; that being that the police could or would give him a list of lawyers both in British Columbia and elsewhere that he could call free of charge for free legal advice. Mr. Therrien made it very clear he understood both versions. Indeed, he testified that “elsewhere” meant or included Quebec. The fact that he later did not remember that Cpl. Gobeil had offered him a French speaking legal aid lawyer does not mean the police breached his s.10(b) rights.

[37] In any event, the police were not required to inform him of his rights in French because it is clear from Cpl. Gobeil’s evidence and the tape recording of the exchange between them that Mr. Therrien understood and spoke English. Mr. Therrien attempted to run when Cpl. Gobeil informed him that there was a warrant for his arrest on two counts of first degree murder, so Mr. Therrien did understand Cpl. Gobeil. I reject Mr. Therrien’s evidence that he was only reacting to tight handcuffs. That explanation was not put to Cpl. Gobeil in cross-examination and the audio recording of the arrest shows that only one handcuff had been applied when Mr. Therrien tried to run.

[…]

[40] Mr. Therrien confirmed that he understood all of the information he had been given in both languages. Cpl. Gobeil also repeatedly asked Mr. Therrien whether he had any questions about his rights, to which he replied “no” each time. I detected impatience in his voice when he was asked over and over again whether he understood. The police exercised extra caution in also giving Mr. Therrien his rights in French, but they were not constitutionally required to do so.

R. v. Michaud, 1986 CarswellOnt 67, [1986] O.J. No. 1631, 1 W.C.B. (2d) 22, 45 M.V.R. 243 (Ont. Dist. Ct.) [hyperlink not available]

[27] The police may not be required to go to the extreme means in order to respect an accused's rights under s. 10 of the Charter. It is necessary, however, in order to comply with the section that an accused be meaningfully informed of the rights. The accused must understand what is being said to him or her and understand what the options are in order that he or she may make a choice in the exercise of the rights guaranteed by the Charter.

[28] It is not sufficient for a police officer upon the arrest or detention of a person to merely recite the rights guaranteed by s. 10 of the Charter. As s. 10(b) stipulates, the accused or detainee must be informed. This means that the accused or detainee must understand what is being said to him or her by the police officer. Otherwise, he or she is not able to make an informed choice with respect to the exercise or waiver of the guaranteed rights.

[29] If the rights are read in English only, and the accused's or detainee's knowledge of the English language does not allow sufficient comprehension of the matter, those are "special circumstances" which alert the officer and oblige him to act reasonably in the circumstances.

N.B. – These paragraphs were adopted by the Ontario Court of Appeal in R. v. Vanstaceghem, [1987] O.J. No. 509, 36 C.C.C. (3d) 142 (ON CA).

R. v. Irving , 2016 QCCQ 2697 (CanLII)

[29] Section 10(b) of the Charter provides that a person who has been detained or arrested has the right to be informed of his or her right to consult a lawyer. This right has been raised, in this section, to a constitutional obligation of law enforcement officers who interact with people who are arrested or detained.

[30] The obligation to inform cannot be so intense that it is necessary to prove that the person to whom the information was addressed has understood it well. It is impossible to know with certainty what another person understands despite the clearest explanations. It is also conceivable that the person concerned may obstruct the receipt of the information, by shouting or plugging his or her ears for example, or by experiencing psychosis, making him or her lose contact with reality.

[31] However, it is just as unacceptable to claim that the constitutional obligations can be met simply by mechanically reading out a formula, with no attention paid to the person to whom it is addressed. In my view, it is essential that the right, for it to be meaningful, be conveyed in such a way that the person who does so has reasonable assurance that the message was received.

[32] It appears to me that one practice, which is not essential but very useful, consists in asking the person concerned to repeat what was said in his or her own words.

[33] It is essentially the matter of language that is in question here. On this topic, it seems to me to be minimally reasonable to read an accused’s rights in his or her language, especially if the language is one of the country’s two official languages and the police officers can easily express themselves in the language of the person under arrest.

Ashevak v. R., 2015 QCCQ 9636 (CanLII)

[9] Analyzing accused’s assertion that he has limited abilities to comprehend English, the Court acknowledges the fact that Mr. Ashevak is a 47 years (sic) old Inuk, whose mother tongue is Inuktitut, who speaks Inuktitut at home, whose work, when he was working, did not require him to speak English and that in a community like Salluit, from day to day, an Inuk is generally not required to speak English, unless his job so demands.

[…]

[12] The Court is satisfied that accused’s grasp of English did not allow him to understand correctly his rights and to fully appreciate what a waiver meant.

[13] Therefore, there was a duty on the police officer to offer some translation assistance - that was available according to the officer’s version - or to make thorough inquiries to make sure accused understood clearly his rights and the consequences of waiving them, especially considering the Inuk he was dealing with had never dealt with the police before.

R. v. Bassi , 2015 ONCJ 340

[42] Crown counsel argued that I should find that special circumstances were not present, because in his submission, viewed as a whole, Mr. Bassi’s exchanges with the officers showed that he did understand his communications with them. I accept that Mr. Bassi had a reasonably fluent level of speech in English. But the case law recognizes that an individual under arrest and detained is in a vulnerable situation, and often, as in this case, in an unfamiliar situation. The case law also recognizes that there are complexities to understanding the circumstances facing an individual under arrest, and understanding legal advice, that have the effect that an individual who can manage in English day to day may not have a level of English sufficient for the complexities of legal issues. Based on all of the circumstances, and in particular Mr. Bassi’s express comments about lack of understanding and English not being his first language in the breath room, I accept that he was having difficulty understanding duty counsel in English, and that special circumstances existed.

[43] Crown counsel also argued that I should find that special circumstances have not been proven because both Constable Drexler and Constable Simmonds testified to their opinion that Mr. Bassi spoke “perfect” English. I reject this argument. It is inconsistent with the analysis established in the case law. The case law recognizes that it is not for the police to determine their view of the level of the defendant’s English or the bona fides of his claims not to understand certain things. The law is clear and has been for many years on this issue. The test I must apply is an objective one, based on all the circumstances.

[…]

[49] Constable Drexler and Constable Simmonds both noted in their evidence that Mr. Bassi never asked for Punjabi speaking duty counsel or for the use of an interpreter for the call with counsel. They said they would have provided that had Mr. Bassi requested it. This evidence shows a misunderstanding by the officers of their Charter duties with respect to language issues. The case law recognizes that an individual under arrest, particularly someone like Mr. Bassi who had never been arrested before, may not be aware of the existence of duty counsel in a language other than English, or of the existence of simultaneous interpretation over the phone for use with counsel. If there is objective evidence of special circumstances in relation to language, the police have a duty to take steps such as offer duty counsel in the detainee’s first language or offer an interpreter for counsel. It is not the detainee’s duty to know about these services and ask for them. And as noted above at paragraph 48, Constable Simmonds’ comments that the only options for a second consultation with counsel were either a private lawyer if Mr. Bassi knew one (which he did not), or a second consultation with (English) duty counsel left the misleading the (sic) impression that there were no other options.

[50] After the language concerns were expressed by Mr. Bassi, rather than offer Mr. Bassi either Punjabi speaking duty counsel or the use of a Punjabi interpreter, Constable Simmonds engaged in the exchange with Mr. Bassi of whether he had any questions he should be asking duty counsel rather than Constable Simmonds. This exchange is troubling from a s. 10(b) perspective on two levels.

[51] First, in relation to language, it is not responsive to the issues Mr. Bassi had clearly raised in relation to understanding of English. Constable Simmonds was not going to answer Mr. Bassi’s questions in Punjabi.

[52] Second, and more fundamentally, the exchange undermines the role of counsel in that the officer is seeking to ask what the detained individual wants to ask counsel about, and then to decide whether that is an appropriate question for counsel or for the police. Rather than offer Mr. Bassi Punjabi speaking duty counsel or an interpreter to speak to counsel, Constable Simmonds took on the role of acting as a gatekeeper for what questions it was appropriate for Mr. Bassi to discuss with counsel.

[53] I acknowledge that in some sense there may be partial overlap between legal advice that counsel provides, and an officer’s obligations to advise of the reasons for arrest or detention under s. 10(a) of the Charter. They are functionally different, but both may cover elements of the offence charged. But it strikes me as perilous and improper territory for an officer to engage in an exchange with a detainee about the substance of what detainee wants to speak to counsel about. What an individual wants to discuss with counsel is at the heart of solicitor-client privilege and the broader concept of solicitor-client confidentiality: Solosky v. The Queen, [1980] 1 S.C.R. 21 at pp. 833-37; Descôteaux v. Mierzwinski, 1982 CanLII 22 (SCC), [1982] 1 S.C.R. 860 at pp. 870-75; R. v. McClure, 2001 SCC 14 (CanLII), [2001] 1 S.C.R. 445 at paras. 17-37.

[54] I find additional support for my conclusion that the police did not comply with Mr. Bassi’s s. 10(b) rights in relation to language in the decision of the Supreme Court of Canada in R. v. Sinclair, 2010 SCC 35 (CanLII), [2010] 2 S.C.R. 310. Sinclair does not deal expressly with language rights. However, it addresses the right to a further contact with counsel when there is objective evidence that the detainee may not have understood the initial 10(b) advice. Chief Justice McLachlin and Justice Charron, writing for the majority, held at pp. 338-39 of Sinclair that a duty to give further access to counsel exists where there are objective circumstances indicating that the detainee may not have understood his or her initial s. 10(b) advice. Although Constable Simmonds was aware that Mr. Bassi had already spoken to counsel, he was also aware that that consultation took place in English. When Mr. Bassi clearly stated to Constable Simmonds that English was not his first language, that he sometimes missed things in English, and that he only understood about 90 percent of what duty counsel said to him, those were objective circumstances which imposed a duty to permit a second contact with counsel. And in this case that duty included the duty to either offer Punjabi speaking duty counsel, or offer a Punjabi interpreter for the consultation with counsel.

[…]

[72] In all the circumstances of this case, I find that the long term impact on the repute of the administration of justice favours excluding the evidence in this case. As I have outlined above, I have found a number of aggravating factors which render the breach particularly serious. Although breath sample evidence is reliable and minimally intrusive on bodily integrity, the impact of a violation of the s. 10(b) duties in relation to language is significant to the defendant. Individuals who are arrested and detained are vulnerable, and denying them the right to speak to counsel in their first language has a serious impact on them. The law in this area is well-established, and has been for many years. The police need to respect that it is not their job to assess the bona fides of a detainee’s language claim. In a diverse jurisdiction like Peel Region, it brings the administration of justice into disrepute when the police are not familiar with their well-established duties in relation to s. 10(b) and language, particularly where the resources to implement these rights are readily available in the jurisdiction. The Court cannot be seen to condone this conduct: R. v. Au-Yeung, 2010 ONSC 2292 (CanLII) at paras. 67-69. I find that the long term repute of the administration of justice requires that the evidence of the breath sample results in this case be excluded.

R. v. Stabile , 2010 QCCQ 10118 (CanLII) [judgment available in French only]

[OUR TRANSLATION]

[46] Giving arrested or detained persons a bilingual card so that they can read it for themselves is not an acceptable means of ensuring that they are able to understand the scope of their right.

[47] The appropriate procedure would have been to seek the assistance of another peacekeeper, reasonably competent in French, to inform him of his rights. At this stage, if no one could respond effectively, they had to request the services of an on-call interpreter in case of the arrest or detention of a person speaking a foreign language.

[48] It should be noted that this is not a question of requiring all Kahnawake peacekeepers to be bilingual. When needed, however, they must use appropriate measures, such as asking a colleague with sufficient knowledge of French to do the reading of the constitutional rights and verify the detained person’s understanding of them, or calling the interpreter’s office, to ensure that the detained person is properly informed of the reasons for his or her arrest or detention and of the right to retain and instruct counsel without delay and that the detained person understands the scope of his or her Charter rights.

R. v. Kwitkowski , 2009 QCCQ 1221 (CanLII) [judgment available in French only]

[OUR TRANSLATION]

[9] According to the case law, peace officers have two duties: the first is to inform the accused of his or her rights and to caution him or her (informational duty), and the second is a positive duty (implementational duties) to implement conditions allowing the legal rights to be exercised (R. c. Dubois, 1990 CanLII 3298 (QC CA), [1990] R.J.Q. 681).

[10] The first, informational duty, is validly discharged through the peace officers’ efforts and patience in ensuring that the accused understands his or her rights. The accused will have perfectly understood his or her right to counsel.

[11] The second, positive duty by which the police force implements the rights (implementational duties), rests with the peace officers. For an accused to understand the nature and scope of his or her rights when language proficiency is clearly or apparently an issue and when scepticism is raised as to the accused’s ability to communicate effectively with counsel in one of the official languages of Canada, peace officers have an obligation to implement means allowing an accused to communicate effectively with counsel so that he or she understands the nature and scope of his or her rights.

[…]

[18] In addition, when concerns about understanding the language of the consultation are central to the circumstances disclosed by the evidence, peace officers’ informational duties should be interpreted rigorously. The validity of a waiver is compromised by the failure to communicate the availability of legal advisory services concurrently with these related and indispensable interpretation services available to those who are not proficient in one official language or who fear that they are for this reason unable to effectively take advice from counsel [(Regina v. Lim (No. 3) (1990), 1 C.R.R. (2d) 148 (Ont. C.A.) failure to provide services of an interpreter in the case of an accused with obvious difficulty speaking one of the official languages].

[…]

[42] Even a party well versed in his or her rights would nonetheless be entitled to the same information and full implementation of his or her rights as an accused so poorly skilled in the only official language of Canada that he or she speaks. The accused’s level of comprehension of French, amply illustrated by the testimony of numerous witnesses, required that the accused be offered the services of an interpreter so that he could communicate effectively with his counsel. It is not that he did not want a lawyer, plain and simple. He did not want a [translation] “French lawyer”.

[43] The rights of accused persons arising from the legal guarantees conferred under s. 10(b) of the Canadian Charter of Rights and Freedoms come with correlative duties on peace officers regarding the scope of the conditions made available to accused persons so that they can effectively exercise the right to consult counsel.

[44] Accordingly, a waiver of this legal guarantee will be adequate and constitutionally sufficient when the detainee is aware of the means that are and must be available to him or her to make an informed decision, such that a waiver may be set up against him or her (Regina v. Parks (1988), 33 C.C.R. 1 (Ont. H.C.), Watt J.).

[45] It is true that the prejudice to the accused would have had no impact on the accused’s duty to provide a breath sample. Here, there is no statement that was allegedly made in violation of his right to remain silent.

[46] However, the right to the services of legal counsel and to those of an interpreter, which are crucial to the meaningful exercise of this fundamental right, is sacrosanct, particularly where a citizen is accused of impaired driving and blood alcohol levels above the legal limit, which can be complex matters. There was an obligation to delay submitting the accused to a breathalyzer test so long as the means to consult counsel with the aid of an interpreter had not been offered or, if they had been, exercised and the breathalyzer tests delayed accordingly (R. v. Prosper, 1994 CanLII 65 (CSC), [1994] 3 S.C.R. 236).

[47] Failure to act in accordance with the spirit of the Charter entitles the victim to the usual remedy, that is, the exclusion of the evidence obtained as a result of the violation of that right and any derivative evidence related to it.

[48] Objectively, this right to access counsel whose advice can be understood is crucial to our legal system. When making an arrest, peace officers are subject to this obligation to ensure that the accused has full benefit of a right of which he or she cannot be deprived arbitrarily or in error of law or fact.

R. v. Mario Régis Mazerolle , 2008 NBPC 31 (CanLII)

[28] Regarding section 10(b) of the Charter, it must be noted that in cases where the driver of a motor vehicle is detained by a peace officer who suspects the presence of alcohol in his body and intends to read him the order under section 254(2) of the Criminal Code chooses a language which is not the language used by the peace officer, the officer cannot read him his right to consult a lawyer. He does not speak the language chosen by the detainee and cannot expect to be understood. Consequently, Officer Arbeau could not advise Mr. Mazerolle of his right to consult a lawyer while they were waiting for Officer Goodfellow to arrive. As a result, the right to consult a lawyer had to be suspended pending the arrival of a peace officer who spoke the language chosen by the detainee. After he arrived, in my opinion, Officer Goodfellow proceeded immediately to give Mr. Mazerolle the order to provide a breath sample pursuant to section 254(2) of the Criminal Code. There was no unreasonable delay.

R. v. Peralta-Brito , 2008 ONCJ 4 (CanLII)

[44] Having considered the trial record in its entirety, I conclude "special circumstances" existed in this case which obliged the arresting officer to take reasonable steps to ensure the accused fully understood his right to counsel and made an informed choice to waive this right until after he had provided samples of his breath to the qualified technician. While the accused appeared to understand English, as indicated by his appropriate responses to the arresting officer's inquiries and directives, his "thick" Spanish accent and limited verbalizations ought to have alerted the officer that English was not the accused's first language and that he might, therefore, encounter some difficulty understanding the right to counsel.

[45] Notwithstanding the accused's expressed confirmation of an understanding of his s. 10(b) rights and his subsequent waiver of the right to consult counsel prior to the administering of the breath test, the principle established in Vanstaceghem, a decision which is binding on this court, requires the police in circumstances where "special circumstances" exist to take reasonable steps to objectively ascertain the accused's constitutional rights are understood. The onus is not on the accused to request interpretive assistance, the onus rests on the police to ensure that the accused understood the right to counsel. Objectively that assurance can be provided by provision of the right to counsel in the accused's native language in either written or oral form, or by facilitation of contact with an interpreter or duty counsel proficient in the accused's native language.

[46] Although the officers acted in good faith throughout the course of their dealings with the applicant in this particular case and had reason to believe the accused enjoyed a sound working knowledge of English as demonstrated by his responsive conduct and generally appropriate verbal replies, the failure to take any steps to objectively ensure or confirm the accused understood his rights in a meaningful and comprehensible manner constitutes an infringement of the accused's s. 10(b) rights. While each case turns on its own facts, I am satisfied the accused has established an infringement of his s. 10(b) rights on a balance of probabilities.

[47] I reach this conclusion in spite of my significant reservations regarding the veracity of aspects of the testimony offered by the accused on this application relating to the accused's professed limited facility with the English language. I am also aware of the fact the Information or charging document in this matter indicates the accused, who was unrepresented at the time the trial date was scheduled in this matter indicated that he did not require interpretive assistance at this trial. The transcript of proceedings of the set date appearance on May 4^th, 2006, confirms the clerk's entry on the information for that date which references the accused's expressed confirmation that he did not want the assistance of an interpreter at trial. As noted, Mr. Peralta-Brito has been assisted throughout this proceeding by a Spanish-speaking interpreter.

[48] These reservations notwithstanding, I am nevertheless satisfied that the applicant has established on the balance of probabilities that he did not truly understand his right to counsel and all that that right entails. Confirmation of this assessment may be found in the fact the accused's request to speak to counsel occurred after he had completed the breath test procedure. The accused's verbal interactions with the arresting officer and the accused's assertion that the arresting officer had made "a mistake" by not providing a lawyer to the accused upon his arrival at the police station may serve to reflect the applicant's faulty understanding of the right to counsel. This misunderstanding may have contributed to the accused's initial pre-test wavier of the right to speak to lawyer prior to the securing of the breath samples.

Consequences of the Charter Breach

[49] I conclude Mr. Peralta-Brito's right to counsel pursuant to s. 10(b) of the Charter of Rights and Freedoms has been infringed as a consequence of the referenced linguistic concern and the absence of any objective inquiry that may have assured the officers that the accused possessed a sufficient understanding of the English language. I am unable to conclude his initial waiver of his right to counsel was made with a full understanding of that right. As a consequence of this Charter breach, conscriptive evidence in the form of breath tests has been secured.

[…]

[51] An individual subject to detention by the police must be informed of his or her right to counsel in a meaningful fashion. On the facts here, the officer's subjective assessment of the detained individual's facility with the English language is not a sufficient factual basis to conclude the accused had been informed of his rights in an understandable or meaningful way. The infringement of this fundamental right is serious and as a result, I conclude the admission of the Certificate of Analysis into evidence would bring the administration of justice into disrepute.

11. Proceedings in criminal and penal matters

11. Any person charged with an offence has the right

(a) to be informed without unreasonable delay of the specific offence;

(b) to be tried within a reasonable time;

(d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal;

[…]

[LAST UPDATE: APRIL 2017]

Annotations – Subsection 11(a)

MacDonald v. City of Montreal , [1986] 1 S.C.R. 460, 1986 CanLII 65 (SCC)

[105] This brings me to the other approach urged upon us and which would have us look at s. 133 as re-enforcing the appellant's interpretation of his language rights by reading into the section or relating to it requirements of natural justice and procedural fairness. In this connection, the appellant referred in his factum to s. 11(a) of the Canadian Charter of Rights and Freedoms:

11. Any person charged with an offence has the right

(a) to be informed without unreasonable delay of the specific offence;

The requirements of this provision, according to him "serve to supplement the protections provided for in s. 133". And he adds:

Further, the requirements in respect to language rights as provided for in section 133 of our constitution and section 11(a) of our Charter of Rights and Freedoms are re-enforced and made more explicit in:

R. vs. Coté (1977) 1977 CanLII 1 (SCC), 33 C.C.C. (2d) 353, per de Grandpré, J.:

"The ‘golden rule’ as regards the sufficiency of an information is whether the accused was reasonably informed of the transaction alleged against him, thus giving the opportunity of making a full defence and ensuring a fair trial". [Extract from the headnote.]

[…]

[118] Before I leave this subject however, I wish to dismiss any suggestion, if there be one, that the rights of the appellant to a fair hearing, as distinct from his language rights, might somehow have been infringed on the facts of this case, and that he might be entitled to be discharged or to have a new hearing on any basis other than s. 133 of the Constitution Act, 1867.

[119] I did not understand that such was the position of the appellant. From the beginning to the end of these proceedings, the sole thrust of his argument was his interpretation of s. 133. This is what was stated by Judge Bourassa. In his notice of appeal to the Superior Court, which is subsequent to the coming into force of the Charter, the appellant invoked neither the Charter nor any principle of natural justice or procedural fairness; the only provision he expressly relied upon was s. 133. He did the same in his application for leave to appeal and notice of appeal in the Court of Appeal. In his reasons for judgment at p. 999 Meyer J. alluded to the Charter, either of his own notion or because it was mentioned in argument and, in my opinion, rightly held:

...my decision would be identical whether or not the new Charter of Rights were applicable. To my mind, the only relevant question is the meaning of Section 133 and whether or not it applies in the present instance.

[120] The first and only pleadings of the appellant which briefly refer to the Charter and to the requirements of natural justice are his application for leave to appeal to this Court and his factum. Both are to the same effect and I have quoted above the main part of the factum on this point: The Charter and the requirements of natural justice are invoked by the appellant only to re-enforce his essential submission on s. 133. It is significant also that the constitutional question which the appellant submitted to Ritchie J. and which was accepted by the latter, relates only to s. 133 and not to the Charter. To sum up, the sole purpose of the appellant, as I understand it, has been from the start and throughout these proceedings to vindicate his language rights as an English-speaking Quebecer the way he understands them, not the rights to a fair hearing which he has in common with everybody else.

[121] If I misunderstood the appellant however, I would still be of the view that, on the facts and pleadings of this case, we are not concerned with the Charter, nor with the question whether the appellant was denied a fair hearing or was entitled to a trial in English if that is not what he had.

[122] There is nothing in the case to indicate in what language or languages the trial and trial de novo were conducted, except that the appellant argued his case in English before Judge Bourassa. At no point did the appellant allege he did not understand the charge or the case he had to meet; by his own account, he secured a translation of the summons. There is nothing to show that he asked the court for a translation and we need not decide whether he would have been entitled to one.

R. v. Simard, [1995] O.J. No. 3989, 27 O.R. (3d) 116 (ON CA) [hyperlink not available]

[42] I am of the opinion that the obligation of the agent for the Attorney General to supply, upon request by the accused, a written translation exists irrespective of the complexity of the information. Just as the accused in a proceeding by indictment is the one who decides whether or not he or she requires the assistance of an interpreter (R. v. Tran, supra), only the accused or his or her counsel, in a summary conviction proceedings, are in a position to decide whether or not it is necessary to obtain an information translated into the official language of the trial in order to inform them properly of the specific offence: s. 11(a) of the Charter. While respecting the distinction that must be maintained between language rights and principles of fundamental justice (MacDonald, supra), I repeat that it is up to them alone to decide whether or not a written translation is necessary to understand the reach and scope of the information in order to make full answer and defence. As I see it, this is what is required to make sure that the accused will have a fair trial in his or her official language.

Annotations – Subsection 11(b)

R. v. Munkonda , 2015 ONCA 309 (CanLII)

[110] The appellant submits that the numerous violations of his language rights constitute violations of not only ss. 530 and 530.1 of the Criminal Code, but also ss. 7 and 11(b) of the Canadian Charter of Rights and Freedoms. In the appellant’s submission, a stay of proceedings under s. 24(1) of the Charter or the common law would be an effective remedy for the violations of his rights. The Crown submits that there was no violation of the appellant’s rights, and in the event that this court concludes otherwise, the appropriate remedy would be continuation of the proceedings with an order for a unilingual trial in French.

[111] In my opinion, given the number and severity of the violations of the appellant’s rights, it is essential that an effective remedy be imposed. It should be recalled that language rights are not procedural rights; rather, they are substantive rights. An appropriate remedy must correct the situation to the extent possible, while also ensuring that the Crown is held accountable for the failure to meet its obligations.

[…]

[116] The appellant also seeks to rely on s. 11(b) of the Charter and asks that a stay of proceedings be granted in light of the intolerable delays the appellant has experienced because he had to initiate these proceedings in order to have his language rights respected.

[117] This issue was raised by the appellant for the first time before this court. The Crown has therefore been denied an opportunity to submit relevant evidence. The record contains no transcripts of the various court appearances made before the preliminary inquiry was held. Nor does it contain the evidence required to apply the other factors relevant to assessing the reasonableness of the delays beyond those caused by the application for certiorari, such as waivers of time limits, the reasons for the delays, or the prejudice suffered by the appellant.

[118] In my opinion, the record presented to us does not allow us to conduct the necessary analysis. The question of delay and of whether s. 11(b) can be relied on to obtain a stay of proceedings as a remedy should be the subject of a motion in the trial court if the appellant wishes to pursue it.

[119] However, nothing in these reasons should be taken as suggesting that the appellant is not free to make that request, supported by the necessary evidence, including the delays caused by the failure to respect his language rights.

Bossé v. R., 2015 NBQB 177 (CanLII)

[26] The trial judge attributed what I called the “translation delay” to the actions of the accused although in his brief, the crown prosecutor had conceded that this 8-month delay was attributable to the Crown. In fact, it was not even discussed in the oral submissions and no questions were asked on that part of the delay. The trial judge was not bound by Crown’s concession. But questions could have been put to either lawyer by the Court. It was not done.

[27] In any event, I find that the trial judge erred in law when she attributed this delay to the accused. This is a delay that must be considered to have been caused by the Crown. Crown prosecutor rightfully conceded this at the hearing of the motion although the new crown prosecutor on appeal does not agree with that position.

[28] It was well known from the filing of the Information that this would be a trial to be conducted in English. Disclosure was provided early on and parties stated that there were thousands of documents, maybe in the vicinity of 5,000. The accused was not advised as to which documents were intended to be introduced into evidence until less than two weeks before trial when his lawyer received an email with an attached letter or list of documents. Six binders came the following day or shortly after. But when he received the email, within an hour, one of the counsel for the accused responded by hitting “reply” and as both lawyers confirmed in Court, Mr. Matchim wrote, maybe not in those exact words, but as summarized by the crown prosecutor on the record (transcript, November 6, 9 & 19, 2012, page 89): “…I assume that you will have translation of all of your – any French documents into English. That’s what it said.” It is to be noted that crown prosecutor just saw the email on the morning of the original scheduled trial date. Lawyers explained that the original email came from the prosecutor’s assistant and when defense lawyer hit “reply”, it went back to the assistant. Nevertheless, even if he would have seen it earlier, crown counsel admitted that it would have been too late to get a translation and it was in fact his position that no translation was required.

[29] The trial judge considered this reply email of October 25 or 27 as a request for translation. Then she said that the request or motion made by the accused on November 5, 2012, when trial was supposed to start, resulted in the necessity of the following 8-month adjournment. Respectfully, I do not agree. What caused this adjournment is the fact that even though this was a trial to be held in English, the Crown forgot about its obligation to make sure evidence would be translated, be it oral or written evidence. In fact, the crown prosecutor was surprised that this question came up on November 5 and was convinced that the Crown had no obligation to provide translation of documents. Legally, this obligation was there from day 1, on April 30, 2012, and had the Crown discussed this matter with the defence earlier, it could have been dealt with from the start. The request for an adjournment then had to be done but the judge and even the crown prosecutor alluded to the fact that this may trigger a motion under section 11 (b), which it did.

[30] When the accused chose to be tried in English, he had no further obligation to remind the Crown that he wanted all of his trial in English, including any document to be introduced into evidence and not only the oral testimonies or the lawyers’ submissions and questioning. The New Brunswick Court of Appeal stated in Boudreau v. R., 1990 CanLII 4056 (NB CA), 107 NBR (2d) 298, that documents entered into evidence ought to be translated in the language of the trial.

[31] The judge who set the original trial dates had ordered that any Charter challenges were to be made before September 10, 2012. The trial and motion judge said: “That request/motion of the accused should have been filed on or before September 10, 2012 as originally agreed by the parties on June 18, 2012 and confirmed by the Court on June 25, 2012, or at least raised with the prosecution much sooner as disclosure took place on May 1, 2012.” Once again, I find that the onus was not on the accused to make sure that the Crown would do its work. I also find that his request for a trial in English and his expectation to have documents entered into evidence in that language were not equivalent to a Charter challenge. In fact, on September 10, 2012, he had not even been advised by the Crown of what documents, if any, would be entered into evidence.

[32] Consequently, I am of the opinion that the 8-month delay caused by the Crown’s request for an adjournment in November 2012 is not to be attributed to the accused but rather to the Crown.

R. v. Tran , 2011 ONCJ 75 (CanLII)

[117] Mr. Tran’s trial in this matter had be (sic) adjourned for three months, from 23 April to 27 July 2010 because of the failure of the Ministry of the Attorney General to provide an interpreter, thereby breaching Mr. Tran’s s. 14 Charter right to proceed with an interpreter, and resulted in additional delay, contrary to Mr. Tran’s s. 11(b) right to have his trial within a reasonable time. In my view this suggests a systemic lack of attention to language rights in Ontario, and compounds the impact on Mr. Tran’s Charter-Protected (sic) interests.

Annotations – Subsection 11(c)

R. v. Singh , 2015 ONSC 7376 (CanLII)

[4] Generally speaking, an accused person may not be compelled to be a witness against himself, and so only voluntary statements made to police are admissible as evidence: Charter, ss. 7, 11(c). Accordingly, once detained and prior to an accused being informed of his or her right to legal counsel any statements made to the police are considered involuntarily compelled and are generally excluded as evidence under s. 24(2) of the Charter: R v Grant, 2009 SCC 32 (CanLII), [2009] 2 SCR 353, at paras 58, 98. After being cautioned about the right to remain silent and the right to consult counsel, an accused may choose to voluntarily answer questions and those statements would be admissible.

[…]

[21] Nevertheless, given the Defendant’s linguistic difficulties, it is apparent that he did not get the kind of warning that enabled him to understand his rights. As the Supreme Court of Canada pointed out in R v Hebert, 1990 CanLII 118 (SCC), [1990] 2 SCR 151, “the fact that the accused may not have realized he had a right to remain silent (e.g. where he has not been given the standard warning)…[is] relevant to the question of whether the statement is voluntary.”

[22] Under the circumstances, the Defendant’s utterances upon arrest, like his more lengthy statement given at the police station several hours later, lacked the requisite voluntariness. These statements are therefore inadmissible.

Annotations – Subsection 11(d)

R. v. Tran , [1994] 2 S.C.R. 951, 1994 CanLII 56 (SCC)

[37] Support for an expansive interpretation of s. 14 may also be found within the Charter itself. This Court has already indicated that provisions of the Charter are not to be read in isolation, but rather interpreted in light of one another: e.g., R. v. Rahey, 1987 CanLII 52 (SCC), [1987] 1 S.C.R. 588, per Wilson and La Forest JJ., Dubois v. The Queen, 1985 CanLII 10 (SCC), [1985] 2 S.C.R. 350, per Lamer J. (as he then was), and Law Society of Upper Canada v. Skapinker, 1984 CanLII 3 (SCC), [1984] 1 S.C.R. 357. It has already been noted by this Court that s. 7 of the Charter is a general expression of the legal rights contained in ss. 8 to 14 of the Charter: Re B.C. Motor Vehicle Act, 1985 CanLII 81 (SCC), [1985] 2 S.C.R. 486, per Lamer J. (as he then was), at p. 502. Not surprisingly, therefore, s. 14 bears a close relationship to s. 7 and the other "legal rights" guaranteed under the Charter. Indeed, I would argue that the right to interpreter assistance under s. 14 is a means of ensuring that criminal proceedings comply with the constitutional guarantee of a fair and public hearing found in s. 11(d) of the Charter. At the same time, the force of s. 14 can be understood in part by reference not only to the right to make full answer and defence, but also to the right to have full disclosure of the case which has to be answered prior to making one's defence, both rights which are protected under ss. 7 and 11 of the Charter. Indeed, the close connection between s. 14 and these other Charter guarantees suggests that the right to interpreter assistance in the criminal context should be considered a "principle of fundamental justice" within the meaning of s. 7 of the Charter.

[…]

[77] In light of the fact that the right to interpreter assistance is not only a fundamental constitutional guarantee in its own right, but also an important means of ensuring a full, fair and public hearing, something which is separately protected under ss. 7 and 11(d) of the Charter, it follows that s. 14 Charter rights will be more difficult to waive than may formerly have been the case under the common law and under statutory instruments, such as the Criminal Code and the Canadian Bill of Rights. Indeed, there will be situations where the right simply cannot, in the greater public interest, be waived. This has already been recognized under the common law in the two early cases of Kwok Leung, supra, and Lee Kun, supra. In both cases, the courts imposed definite restrictions on the possibilities for valid and effective waivers of the right to an interpreter, whether or not the accused was represented by counsel. […]

R. v. J. K., 2011 ONSC 800 (CanLII)

[52] However, the Defence argument is much more subtle than simply determining whether s.7 of the Charter has been breached. The argument is as follows:

[…]

ii. By continuing with the interview without an interpreter, violated and undermined J.K.’s right to silence (s.7 of the Charter), his right to a fair trial (s. 11(d) of the Charter) and his right to an interpreter in any proceeding (s. 14 of the Charter). The Defence submits that the appropriate remedy is the exclusion of the videotaped statement under s. 24(2) of the Charter.

[…]

[60] To be clear, I am not suggesting that police do not have to provide an interpreter where it is clear or there is good reason to believe that the person being interviewed has genuine difficulty understanding the questions or has genuine difficulty in expressing their answers because of language comprehension or proficiency. Failure to do so puts the admissibility of the statement at risk.

R. v. Maurice Frenette , 2007 NBPC 33 (CanLII)

[…]

[31] Undeniably Ms Mahoney is at a disadvantage in these proceedings. She maintains that she cannot adequately prepare for her client’s defence. But this disadvantage is at the making of her client. This disadvantage was not created by the state. The state has fully complied with its constitutional obligations of disclosure and has not by any means denied Mr. Frenette procedural or substantive fairness. I cannot see how Mr. Frenette’s decision to hire a lawyer who is at a disadvantage is a decision which must be cured by the state which is now being asked, at taxpayer’s expense, to nullify that disadvantage.

[32] I find for the reasons stated above that the failure by the prosecution to provide translated disclosure in the official language of Mr. Frenette’s choice has not prejudiced or had an adverse effect on his ability to make full answer and defence. The applicant has therefore failed to prove on a balance of probabilities any Charter violation.

[33] I also find that the applicant has failed to establish a factual or evidentiary foundation for his requested Charter relief. He has indicated in his Affidavit what the projected cost of translation would be for the evidence in question, but he has not demonstrated that he does not have the financial wherewithal or resources to obtain translation of this disclosure. There is no evidence before me as to the lack of financial means to obtain the translation. Also, there is no evidence concerning the applicant’s inability to pay for a francophone co-counsel or translator, should he wish to avail himself of this assistance. Mr. Frenette has simply failed to discharge the evidential burden on him.

R. v. Butler , 2002 NBQB 325 (CanLII)

[2] He [the accused] has brought an application seeking a stay of proceedings pursuant to section 24(1) of the Canadian Charter of Rights and Freedoms on the grounds that sections 20(2), 7 and 11(d) of the Canadian Charter of Rights and Freedoms have been violated. He argues that this infringement of his rights arise as a result of the crown prosecutor's refusal to translate the information disclosed in his case, from French to English.

[…]

[45] Succinctly put, his [the accused’s] position is as a unilingual anglophone who has made a formal request for disclosure in English, he has the unqualified right to receive it in that language. Due to this extremely broad premise, I am of the opinion that it becomes incumbent upon him to establish that the refusal to provide translated disclosure has resulted in actual prejudice to his ability to make full answer and defence. This was the standard articulated by L'Heureux-Dubé J, in R. v. O'Connor (1995), 103 C.C.C. (3d) 1 (S.C.C.) at para. [74].

[46] The objective of disclosure is to communicate and to apprise the accused of the information the Crown has, and thus the case one has to meet. This information also allows the Defence to decide on its strategy at trial.

[47] I accept that Mr. Butler did not understand the substance of what was communicated to him. His specific request for translation was denied.

[48] In the case at bar, however, there was no evidence adduced with respect to his counsel's competency in the French language, which is another important consideration.

[49] In addition, a preliminary hearing was conducted in English, resulting in the accused's committal to stand trial. The preliminary hearing is not a substitute for the disclosure process. It does, however, afford the accused a limited opportunity to discover the case to be made against him at trial.

[50] The accused has also failed to demonstrate that he does not have the financial wherewithal or resources to obtain the translation of this disclosure. In this regard, I adopt Mr. Justice MacDonald's comments in R. v. Rodrigue, supra, at p. 479:

It is highly unlikely that a court would look with favour upon a claim by an accused that he has a right to legal or scientific assistance or to translation services if he himself has the means to pay for these kinds of services.

R. v. Rodrigue , 1994 CanLII 5249 (YK SC)

[p. 29] Does the right to make full answer and defence include the right to assistance from the state to translate into the official language chosen by the accused for his trial, a statement or other document of which the original is in the other official language?

[p. 29] The extent of the right to make full answer and defence, and the constitutional right to a fair hearing (under section 11(d) of the Canadian Charter of Rights and Freedoms) has been explored most often in the context of the extent of one's right to legal aid. Does the accused have an absolute right to counsel at the expense of the state? The answer of the Court of Appeal of Ontario, in R. v. Rowbotham (1988), 1988 CanLII 147 (ON CA), 63 C.R. (3d) 113, at p. 173, is that section 11(d) and section 7 of the Charter, which guarantee a fair trial by virtue of the principles of fundamental justice, require that the state provide the accused with a lawyer at the state's expense if the accused wants a lawyer but is unable to pay for one, and if the assistance of a lawyer is essential in order to have a fair trial. The right is therefore not absolute. Does the accused have a right to counsel of his choice at the expense of the state? The courts have said that there is no such absolute right: Panacui v. Legal Aid Society of Alberta (1988) 1987 CanLII 148 (AB QB), 1 W.W.R. 60 40 C.C.C. (3d) 459 (Alberta Queen's Bench); R. v. Robinson (1990) 1989 ABCA 267 (CanLII), 70 Alta L.R. (2d) 31 at p. 70 (Alberta Court of Appeal).

[p. 30] The response of the courts has been to deny the existence of any such absolute right; the court will agree that one's right to the assistance of a lawyer at the state's expense depends on whether the circumstances warrant it, for instance, the gravity of the alleged crime, or the complexity of issues of the admissibility of evidence or of the law which is involved in the case. The extent of one's right to scientific expertise has not yet been explored, perhaps because of the generosity of the police forces and the Crown. To the extent that general principles can be enunciated from the cases, I would say that one's common law right to "a full answer and defence" as expressed in s. 650(3) of the Criminal Code and the constitutional right to a fair hearing do not include any absolute rules as' to the extent of the state's duty. What that duty is will depend on the circumstances of the case: the circumstances of and the preparation for the trial, and the circumstances of the accused, including his financial resources. It is highly unlikely that a court would look with favour upon a claim by an accused that he has a right to legal or scientific assistance or to translation services if he himself has the means to pay for these kinds of services.

[p. 31] There remains no other circumstance which might invoke the sympathy of the court to recognize that the right to prepare and make full answer and defence would be jeopardized if the prosecution did not disclose the information in French. It is possible that in other circumstances an accused would be successful in persuading the court that, given the private, resources of the accused, without a translation the preparation for trial would be so difficult that it would be ineffective to the point that at the trial itself the accused would not be able to make full answer and defence.

N.B. – The appeal of this judgment was dismissed on other grounds by the Yukon Court of Appeal and the application for leave to appeal to the Supreme Court of Canada was dismissed.

14. Interpreter

14. A party or witness in any proceedings who does not understand or speak the language in which the proceedings are conducted or who is deaf has the right to the assistance of an interpreter.

[LAST UPDATE: MAY 2017]

Annotations

R. v. Beaulac , [1999] 1 S.C.R. 768, 1999 CanLII 684 (SCC)

[41] Another important consideration with regard to the interpretation of the “best interests of justice” is the complete distinctiveness of language rights and trial fairness. […] The right to full answer and defence is linked with linguistic abilities only in the sense that the accused must be able to understand and must be understood at his trial. But this is already guaranteed by s. 14 of the Charter, a section providing for the right to an interpreter. The right to a fair trial is universal and cannot be greater for members of official language communities than for persons speaking other languages. Language rights have a totally distinct origin and role. They are meant to protect official language minorities in this country and to insure the equality of status of French and English. […]

R. v. Tran , [1994] 2 S.C.R. 951, 1994 CanLII 56 (SCC)

[1] This appeal raises for the first time before this court s. 14 of the Canadian Charter of Rights and Freedoms, which guarantees the right to the assistance of an interpreter. As a result, these reasons for judgment are somewhat longer than would normally be warranted. The context is that of a criminal proceeding and the claimant of the right is an accused who neither spoke nor understood English, the language of the proceedings. Following the hearing of this case, the appeal was unanimously allowed from the bench and a new trial ordered, with reasons to follow.

[…]

IV. Analysis

[9] This is the first appeal heard by this court in which the right to interpreter assistance guaranteed by s. 14 of the Charter has been directly in issue. Section 14 provides as follows:

14. A party or witness in any proceedings who does not understand or speak the language in which the proceedings are conducted or who is deaf has the right to the assistance of an interpreter.

Subsections 650(1) of the Criminal Code, which stipulates that an accused "shall be present in court during the whole of his trial", and 650(3), which entitles an accused to "make full answer and defence", are also implicated in this appeal. However, these provisions of the Criminal Code play a subordinate role to that of s. 14 of the Charter. Not only does s. 14 expressly provide for the right to the assistance of an interpreter, but also it is, by virtue of its constitutional status, part of the supreme and overarching law of the country. Section 14 of the Charter also has a wider reach than s. 650 of the Code. Section 650 applies most directly and fully to proceedings upon an indictment. The rules governing the appearance and presence of an accused in connection with offences punishable upon summary conviction are somewhat different and less rigorous: see ss. 800(2), 800(3) and 803(2)(a), but also s. 795 of the Code. Section 14 of the Charter, however, confers upon all accused, irrespective of the gravity of the offence charged and its classification, a constitutionally guaranteed right to the assistance of an interpreter where the accused does not understand or speak the language of the court.

[10] The elevation of the right to interpreter assistance to the level of a constitutional norm is a significant step requiring, at a minimum, that the rules and principles governing interpreters which have been developed under the common law and under various statutes be reconsidered and, where necessary, adapted to fit with the dictates of the new Charter era. At the same time, there is no doubt that the rich body of jurisprudence which already exists with respect to interpreters, including that which has been developed under s. 650 of the Code, will play an important role in determining the scope of the right guaranteed by s. 14 of the Charter.

[11] At the outset, I would like to make it very clear that the discussion of s. 14 of the Charter which follows relates specifically to the right of an accused in criminal proceedings, and must not be taken as necessarily having any broader application. In other words, I leave open for future consideration the possibility that different rules may have to be developed and applied to other situations which properly arise under s. 14 of the Charter — for instance, where the proceedings in question are civil or administrative in nature.

[12] This case requires this court to begin the process of delineating the parameters of the right to interpreter assistance, a right which is framed in very general terms under s. 14 of the Charter. In determining the scope of a Charter right, the words of Dickson J. (as he then was), writing for the court on s. 8 of the Charter in Canada (Director of Investigation & Research, Combines Investigation Branch) v. Southam Inc., [1984] 2 S.C.R. 145, at pp. 156-57 [hereinafter "Hunter v. Southam Inc."], are a useful starting point:

The Canadian Charter of Rights and Freedoms is a purposive document. Its purpose is to guarantee and to protect, within the limits of reason, the enjoyment of the rights and freedoms it enshrines.

... the proper approach to the interpretation of the Charter of Rights and Freedoms is a purposive one ... [which makes it] first necessary to specify the purpose underlying [the section of the Charter]: in other words, to delineate the nature of the interests it is meant to protect.

In R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295, at p. 344, Dickson J. (as he then was) elaborated on how the interests which are intended to be protected by a particular Charter right are to be discovered:

In my view this analysis is to be undertaken, and the purpose of the right or freedom in question is to be sought by reference to the character and the larger objects of the Charter itself, to the language chosen to articulate the specific right or freedom, to the historical origins of the concepts enshrined, and where applicable, to the meaning and purpose of the other specific rights and freedoms with which it is associated within the text of the Charter. The interpretation should be, as the judgment in Southam emphasizes, a generous rather than a legalistic one, aimed at fulfilling the purpose of the guarantee and securing for individuals the full benefit of the Charter's protection. At the same time it is important not to overshoot the actual purpose of the right or freedom in question, but to recall that the Charter was not enacted in a vacuum, and must therefore, as this Court's decision in Law Society of Upper Canada v. Skapinker, [1984] 1 S.C.R. 357, illustrates, be placed in its proper linguistic, philosophic and historical contexts.

[…]

[35] It is clear that the right to the assistance of an interpreter of an accused who cannot communicate or be understood for language reasons is based on the fundamental notion that no person should be subject to a Kafkaesque trial which may result in loss of liberty. An accused has the right to know in full detail, and contemporaneously, what is taking place in the proceedings which will decide his or her fate. This is basic fairness. Even if a trial is objectively a model of fairness, if an accused operating under a language handicap is not given full and contemporaneous interpretation of the proceedings, he or she will not be able to assess this for him or herself. The very legitimacy of the justice system in the eyes of those who are subject to it is dependent on their being able to comprehend and communicate in the language in which the proceedings are taking place.

(iii) Relationship with Other Charter Provisions

[37] Support for an expansive interpretation of s. 14 may also be found within the Charter itself. This court has already indicated that provisions of the Charter are not to be read in isolation, but rather interpreted in light of one another: e.g., R. v. Rahey, [1987] 1 S.C.R. 588, per Wilson and La Forest JJ., R. v. Dubois, [1985] 2 S.C.R. 350, per Lamer J. (as he then was), and Law Society of Upper Canada v. Skapinker, [1984] 1 S.C.R. 357. It has already been noted by this court that s. 7 of the Charter is a general expression of the legal rights contained in ss. 8 to 14 of the Charter: Reference re s. 94(2) of the Motor Vehicle Act (British Columbia), [1985] 2 S.C.R. 486, per Lamer J. (as he then was) at p. 502. Not surprisingly, therefore, s. 14 bears a close relationship to s. 7 and the other "legal rights" guaranteed under the Charter. Indeed, I would argue that the right to interpreter assistance under s. 14 is a means of ensuring that criminal proceedings comply with the constitutional guarantee to a fair and public hearing found in s. 11(d) of the Charter. At the same time, the force of s. 14 can be understood in part by reference not only to the right to make full answer and defence, but also to the right to have full disclosure of the case which has to be answered prior to making one's defence, both rights which are protected under ss. 7 and 11 of the Charter. Indeed, the close connection between s. 14 and these other Charter guarantees suggests that the right to interpreter assistance in the criminal context should be considered a "principle of fundamental justice" within the meaning of s. 7 of the Charter.

[…]

(iv) Conclusions on the Purposes Served by Section 14

[38] The right of an accused person who does not understand or speak the language of the proceedings to obtain the assistance of an interpreter serves several important purposes. First and foremost, the right ensures that a person charged with a criminal offence hears the case against him or her and is given a full opportunity to answer it. Second, the right is one which is intimately related to our basic notions of justice, including the appearance of fairness. As such, the right to interpreter assistance touches on the very integrity of the administration of criminal justice in this country. Third, the right is one which is intimately related to our society's claim to be multicultural, expressed in part through s. 27 of the Charter. The magnitude of these interests which are protected by the right to interpreter assistance favours a purposive and liberal interpretation of the right under s. 14 of the Charter, and a principled application of the right.

[…]

[47] The first step in the analysis as to whether a breach of s. 14 of the Charter has in fact occurred requires consideration of the need for interpreter assistance. That is, the claimant of the right must demonstrate that he or she satisfies (or satisfied) the conditions precedent to entitlement to the right. Section 14 of the Charter states clearly that, to benefit from the right, an accused must "not understand or speak the language in which the proceedings are conducted".

[48] While the right to interpreter assistance is not an automatic or absolute one, it stands to reason, particularly with the elevation of the right to the level of a constitutional norm, that courts should be generous and open-minded when assessing an accused's need for an interpreter. As a general rule, courts should appoint an interpreter when either of the following occurs:

(1) it becomes apparent to the judge that an accused is, for language reasons, having difficulty expressing him or herself or understanding the proceedings and that the assistance of an interpreter would be helpful; or

(2) an accused (or counsel for the accused) requests the services of an interpreter and the judge is of the opinion that the request is justified.

Importantly, neither the language of s. 14 of the Charter nor the legal-historical underpinnings of the right require courts to inform all accused appearing before them of the existence of the right to interpreter assistance. Similarly, courts are not obliged to inquire, as a matter of course, into every accused's capacity to understand the language used in the proceedings. At the same time, however, there is no absolute requirement on an accused that the right be formally asserted or invoked as a pre-condition to enjoying it. This is because courts have an independent responsibility to ensure that their proceedings are fair and in accordance with the principles of natural justice and, therefore, to protect an accused's right to interpreter assistance, irrespective of whether the right has actually been formally asserted.

[49] Just as a court should conduct a hearing into an accused's mental capacity if it appears that the accused may not be competent to participate fully in his or her own defence, or likewise should decline to accept a guilty plea if not satisfied that an accused understands the nature of the charge and appreciates what it is he or she is doing, so too should a court conduct, on its own motion, an inquiry into the need for an interpreter when it appears that an accused is having language difficulties. As I suggested above, the overriding consideration is that of understanding. Failure to conduct an inquiry where there is some positive indication that the accused may not understand or cannot be understood for reasons related to language, and to appoint an interpreter where one may prove helpful, could result in a miscarriage of justice and the ordering of a new trial.

[50] However, it should be borne in mind by defence counsel that the safer course will always be to request an interpreter when one is required, rather than to rely on a court to appoint one entirely on its own motion. Indeed, as officers of the court, there is an obligation on both Crown and defence counsel to draw a court's attention to the need for an interpreter where counsel become aware that such a need exists. While courts must be alert to signs which suggest that an accused may have language difficulties, they are not nor can they be expected to be mind readers. Where there are no outward indications which point to a lack of understanding on the accused's part and where the right has not been invoked by the accused or by counsel (in the case of represented accused), these may be factors which are weighed against the accused if, after sitting quietly throughout the trial, the issue of interpretation is suddenly raised for the first time on appeal. The cases of R. v. Tsang (1985), 27 C.C.C. (3d) 365 (B.C. C.A.), and R. v. Tabrizi, [1992] O.J. No. 1383 (Ont. Gen. Div.) are illustrative of this point.

[…]

[52] I would stress that courts must, as many have in the past, approach the question of the need for an interpreter with a spirit of sensitivity and understanding, particularly now that the right to interpreter assistance has been entrenched in our Constitution. As Steele makes clear in his article, "Court Interpreters in Canadian Criminal Law", supra, at pp. 226-27:

... linguistic competence takes colour from circumstances. For example, an allophone [i.e., a person not conversant in the language of the proceedings] might find it easy to understand her lawyer, particularly because she has had time outside the court-room to eliminate misunderstandings, but not opposing counsel, the judge or a witness. In the same way, she might be able to understand her lawyer in the relative calm of the lawyer's office, but not under stress in the court-room.

[In addition], speaking, reading and oral comprehension are distinct skills. A party who is able to testify fluently may be unable to read documentary evidence. Similarly, a witness who is able to follow instructions or understand a question may be incapable of responding fully.

[53] On these and other grounds, Steele argues for "a rather low standard in the assessment of need" (p. 227), whereby an interpreter would be allowed unless a court were convinced that the applicant was able to understand the proceedings to the same degree as if those proceedings were conducted in the language in which the applicant has the greatest facility.

[54] Along the same lines, Lacourcière J.A. of the Ontario Court of Appeal has provided some sound advice with respect to assessing the need for an interpreter. In R. v. Petrovic (1984), 13 C.C.C. (3d) 416 (Ont. C.A.), he stated, at p. 423:

It was common ground at the trial that a Serbo-Croatian interpreter was required, and the appellant entered his plea through an interpreter. While both the Bill of Rights and the Canadian Charter of Rights and Freedoms refer to the right to the assistance of an interpreter in any proceedings where the witness does not understand or speak the language in which the proceedings are conducted, it is not for the trial court and much less for an appellate court to conduct a detailed inquiry into the party's or witness' ability to understand or speak the language of the court proceedings. A person may be able to communicate in a language for general purposes while not possessing sufficient comprehension or fluency to face a trial with its ominous consequences without the assistance of a qualified interpreter. Even if that person speaks broken English or French and understands simple communications, the right constitutionally protected by s. 14 of the Charter is not removed. [Emphasis added.]

I would also agree with the position taken by Lacourcière J.A. in Petrovic, at p. 423 [C.C.C., p. 284 C.R.], and reiterated by the B.C. Court of Appeal in Tsang, supra, at p. 371, that, once claimed, the s. 14 Charter right to interpreter assistance should not be denied unless there is "cogent and compelling evidence" that an accused's request for an interpreter is not made in good faith, but rather for an oblique motive. In Roy v. Hackett, supra, a case involving interpretation at an arbitration hearing, Lacourcière J.A. pointed out, at p. 427, that in coming to a decision regarding the good faith of a witness or party who requests an interpreter, a judge or chairman of a tribunal

... must take into account the legitimate desire of any witness to express himself in the language he knows best, usually his mother tongue ... [and] avoid imputing an ulterior motive to a witness who asks for an interpreter, even if the witness has some familiarity with the language used and could, in a general way, understand the proceedings.

This comment attests to the sensitivity required when assessing an accused's need for an interpreter, and to the fact that courts must not be too quick to draw adverse inferences where the claimant of the right has some facility with the language being used in the court.

(ii) Guaranteed Standard of Interpretation

[54] The second step in determining whether an accused has been deprived of his or her constitutionally guaranteed right to interpreter assistance involves a consideration of whether there has been a departure or deviation from what is considered "proper" interpretation. Where the accused shows that he or she was in need of an interpreter, but was refused such assistance, the limitation on the right will be self-evident (subject, of course, to the accused establishing that the denial occurred at a point when the case was being advanced). However, where, as here, an interpreter was appointed and it is the quality of the interpretation provided that is being challenged, assessing whether there has been an infringement of the right becomes more complicated. To do so, it is necessary to consider the scope of the right guaranteed by s. 14 of the Charter and to begin to define what constitutes an appropriate standard of interpretation in criminal proceedings.

[55] While the standard of interpretation under s. 14 will be high, it should not be one of perfection. In my view, it can be defined by reference to a number of criteria aimed at helping to ensure that persons with language difficulties have the same opportunity to understand and be understood as if they were conversant in the language being employed in the proceedings. These criteria include, and are not necessarily limited to, continuity, precision, impartiality, competency and contemporaneousness. I shall consider each one in turn.

I. Continuous

[56] In considering what constitutes adequate interpretation, courts and commentators have generally treated continuity as a necessary requirement. As a result, breaks in interpretation and/or summaries of the proceedings have usually not been viewed in a favourable light.

[…]

[58] I find, therefore, that s. 14 of the Charter requires that interpretation of proceedings be continuous. Breaks and interruptions in interpretation are not to be encouraged or allowed.

II. Precise

[59] The need for precision in interpretation is self-evident. As Steele suggests at pp. 240-41 of his article, supra:

... the interpretation must be, as close as can be, word-for-word and idea-for-idea; the interpreter must not "clean up" the evidence by giving it a form, a grammar or syntax that it does not have; the interpreter should make no commentary on the evidence; and the interpretation should be given only in the first person, e.g., "I went to school" instead of "he says he went to school".

This necessity for precision is an additional reason why summaries are most unlikely to meet the general standard of interpretation required under s. 14 of the Charter. Indeed, in the American case Negron, supra, Kaufman J. held, at pp. 389-90, that the summaries provided to the defendant by the prosecutor's interpreter were inadequate because:

However astute [the interpreter's] summaries may have been, they could not do service as a means by which Negron could understand the precise nature of the testimony against him during that period of the trial's progress when the state chose to bring it forth.

[60] However, it is important to keep in mind that interpretation is an inherently human endeavour which often takes place in less than ideal circumstances. Therefore, it would not be realistic or sensible to require even a constitutionally guaranteed standard of interpretation to be one of perfection. As Steele explains, at p. 242:

Even the best interpretation is not "perfect", in that the interpreter can never convey the evidence with a sense and nuance identical to the original speech. For that reason, the courts have cautioned that interpreted evidence should not be examined microscopically for inconsistencies. The benefit of a doubt should be given to the witness.

In this respect, it may be helpful to note the conceptual distinction that exists between "interpretation", which is primarily concerned with the spoken word, and "translation", which is primarily concerned with the written word. In light of the fact that interpretation involves a process of mediation between two people which must occur on the spot with little opportunity for reflection, it follows that the standard for interpretation will tend to be lower than it might be for translation, where the source is a written text, where reaction time is usually greater and where conceptual differences which sometimes exist between languages can be more fully accommodated and accounted for.

III. Impartial

[61] It also stands to reason that interpretation, particularly in a criminal context, should be objective and unbiased: see, e.g., Unterreiner, infra, Tabrizi, supra, and Morel, supra, at pp. 535-36. As Steele suggests, at pp. 238-39:

Certain persons are disqualified, by reason of apprehension of bias, from acting as interpreter. Obviously a party litigant will not be permitted to interpret, but neither will a relative or friend of a party, the judge, nor a person closely connected to the events giving rise to a criminal charge. These rules may be relaxed if the proceedings are non-adversarial. [Footnotes omitted.]

While I agree with Steele that an interpreter should be impartial, I would further relax these rules, particularly on preliminary issues such as bail release or adjournment in remote areas of our country, where the practical reality of Canadian geography coupled with the urgency presented by some cases would result in the interests of justice being better served.

IV. Competent

[62] To meet the standard of protection guaranteed by s. 14 of the Charter, interpretation must be of a high enough quality to ensure that justice is done and seen to be done. This means, at a minimum, that an accused has a right to competent interpretation. While there are, as of yet, no universally acceptable standards for assessing competency, a point stressed by Steele at p. 238, an interpreter must at least be sworn by taking the interpreter's oath before beginning to interpret the proceedings: see, e.g., R. v. L.L., [1986] O.J. No. 1954 (Ont. Dist. Ct.), and Petrovic, supra, at p. 423. Where there is a legitimate reason to doubt the competency of a particular interpreter, a court will be well advised to conduct an inquiry into the interpreter's qualifications.

[…]

V. Contemporaneous

[64] A further factor which needs to be taken into account when defining the proper standard for interpretation is that of timing. To meet the constitutionally guaranteed standard of protection under s. 14 of the Charter, interpretation must take place contemporaneously with the proceeding in question. Here, it may be useful to keep in mind the distinction between "consecutive" (after the words are spoken) and "simultaneous" (at the same time as words are spoken). While it is generally preferable that interpretation be consecutive rather than simultaneous, the overriding consideration is that the interpretation be contemporaneous. Although I need not decide the matter, I would tend to agree with Steele, at pp. 248-49 of his article, that, although consecutive interpretation effectively doubles the time necessary to complete the proceedings, it offers a number of advantages over simultaneous interpretation. Simultaneous interpretation is a complex and demanding task for which court interpreters, unlike conference interpreters, are seldom trained. Moreover, it requires expensive sound equipment with which our trial courtrooms are rarely equipped. In addition, simultaneous interpretation works best when there is a minimum of distraction both for the interpreter and the listener(s), a feature which will not always be present in our busy courtrooms. Consecutive interpretation, on the other hand, has the advantage of allowing the accused to react at the appropriate time, such as when making objections. It also makes it easier to assess on the spot the accuracy of the interpretation, something rendered more difficult when one has to listen to the original language and its translation at the same time, as would be the case with simultaneous interpretation.

[65] All of these factors suggest that consecutive interpretation is the better practice as compared to simultaneous interpretation. However, I recognize that the different needs of persons targeted by s. 14 of the Charter, such as those with a hearing disability, as well as the possibility of technological advances in interpretation methods may change this. What is important above all is that interpretation be contemporaneous with that which is being interpreted.

VI. Summary

[66] In sum, the purpose of furthering understanding of the proceedings which underpins the right to interpreter assistance is most likely to be fulfilled if the standard for interpretation under s. 14 of the Charter is defined as one of continuity, precision, impartiality, competency and contemporaneousness. Given the underlying importance of the interests being protected by the right to interpreter assistance, the constitutionally guaranteed standard of interpretation must be high and allowable departures from that standard limited. In assessing whether there has been a sufficient departure from the standard to satisfy the second stage of inquiry under s. 14, the principle which informs the right — namely, that of linguistic understanding — should be kept in mind. In other words, the question should always be whether there is a possibility that the accused may not have understood a part of the proceedings by virtue of his or her difficulty with the language being used in court.

(iii) Whether Departure Occurred While Case was Being Advanced

[67] Importantly, it will not be every deviation from the protected standard of interpretation which will constitute a violation of s. 14 of the Charter. The claimant of the right must establish something more — namely, that the lapse in interpretation which occurred was in respect of the proceedings themselves, thereby involving the vital interests of the accused, and was not merely in respect of some collateral or extrinsic matter, such as an administrative issue relating to scheduling. To distinguish between a limitation of the right which is of such a de minimis nature as not to constitute a violation of s. 14 and one which is more material and which does infringe s. 14, I find it helpful to borrow the language and accompanying rationale developed in the context of the right to be present under s. 650 of the Criminal Code, where absences which occur while the case is actually "proceeding" or being "advanced" or where the "vital interests" of the accused are involved are deemed to take place during the "trial" and to be in violation of s. 650. Of course, unlike s. 650 of the Code which mandates an accused's presence during the whole of a "trial", s. 14 of the Charter uses the more all-encompassing term "proceedings". Nonetheless, I believe that the case law under the Code provision is helpful in delineating the kinds of circumstances in which interpretation must comply with constitutional standards, particularly in light of the purposive and expansive definitions which courts have, on the whole, given to the term "trial" under s. 650 of the Code.

[…]

[70] By embracing for the purposes of s. 14 of the Charter the language of "advancing the case" and its underlying rationale found in Meunier and subsequently developed in the case law under s. 650 of the Code, I am not suggesting that there is any magical or fixed meaning to this phrase. Indeed, I would agree with the Ontario Court of Appeal's observations in R. v. Grimba (1980), 56 C.C.C. (2d) 570 (Ont. C.A.), a case where s. 650 (then s. 577) of the Code was held to have been contravened when the accused was twice excluded from the courtroom during his re-examination while arguments took place and rulings were made regarding admissibility of evidence. With respect to the phrase "advancing the case", Zuber J.A., writing for the Court of Appeal, stated at p. 574:

I cannot think that this phrase was intended to be definitive. It is one way of putting the essential question of whether or not the trial continued and it is of little consequence whether the continuance embraced the adduction of evidence, the presentation of argument, rulings on evidentiary points, the address to the jury, etc. [Emphasis added.]

My intention is simply to make it clear that where a lack of or lapse in interpretation occurs in respect of some purely administrative or logistical matter which does not involve the vital interests of the accused, such as scheduling or agreeing to a recess, this will not be a violation of s. 14 of the Charter. Indeed, to say it was a violation would trivialize the right to interpreter assistance protected under the Constitution.

[…]

(iv) Prejudice

[72] With respect to the question of what has to be established by the party asserting a violation of s. 14 of the Charter, I wish to make one final comment. In my view, it is crucial that, at the stage where it is being determined whether an accused's s. 14 rights were in fact violated, courts not engage in speculation as to whether or not the lack of or lapse in interpretation in a specific instance made any difference to the outcome of the case. To second-guess the defence's strategy in a particular case, or to ponder the utility of proper interpretation, is an inherently dangerous exercise. It is impossible to know for sure what would have happened if an accused had been provided with full and contemporaneous interpretation of the proceeding in question. For example, one can never really know what might have been triggered in an accused's mind had he or she received the interpretation to which he or she is entitled under s. 14 of the Charter.

[73] Section 14 expressly guarantees the right to the assistance of an interpreter when certain conditions precedent are met. Nowhere does it require or suggest that an ex post facto assessment of prejudice to an accused's right to full answer and defence be carried out before a violation of the right can be found. Furthermore, the right under s. 14 of the Charter is one held not only by accused persons, but also by parties in civil actions and administrative proceedings and by witnesses. If the right to interpreter assistance were based exclusively on the right to make full answer and defence and on avoiding prejudice to that right, there would be no reason for parties in non-criminal proceedings as well as witnesses to be separately guaranteed the right.

[74] Section 14 guarantees the right to interpreter assistance without qualification. Therefore, it would be wrong to introduce into the assessment of whether the right has been breached any consideration of whether or not the accused actually suffered prejudice when being denied his or her s. 14 rights. The Charter in effect proclaims that being denied proper interpretation while the case is being advanced is in itself prejudicial and is a violation of s. 14. Actual resulting prejudice is a matter to be assessed and accommodated under s. 24(1) of the Charter when fashioning an appropriate and just remedy for the violation in question. In other words, the "prejudice" is in being denied the right to which one is entitled, nothing more.

(v) Waiver

[75] In light of the fact that the right to interpreter assistance is not only a fundamental constitutional guarantee in its own right, but also an important means of ensuring a full, fair and public hearing, something which is separately protected under ss. 7 and 11(d) of the Charter, it follows that s. 14 Charter rights will be more difficult to waive than may formerly have been the case under the common law and under statutory instruments, such as the Criminal Code and the Canadian Bill of Rights. Indeed, there will be situations where the right simply cannot, in the greater public interest, be waived. […]

[76] Where waiver of the right to interpreter assistance is possible, the threshold will be very high. In Korponey v. Canada (Attorney General), (sub nom. Korponay v. Canada (Attorney General)) [1982] 1 S.C.R. 41, this court made it clear per Lamer J. (as he then was) that to be valid, waiver of a statutory procedural right has to be clear and unequivocal and must be done with full knowledge of the rights the procedure was enacted to protect and the effect that waiver will have on those rights. This standard for a valid waiver has subsequently been adopted in the context of the Charter, specifically with respect to s. 10(b) which guarantees the right to retain and instruct counsel upon arrest or detention: see, e.g., R. v. Evans, [1991] 1 S.C.R. 869, per McLachlin J., at pp. 892-94. In the specific case of waiver of the s. 14 right to interpreter assistance, I would add to existing safeguards the following condition. The waiver should be made personally by the accused, if necessary following an inquiry by the court through an interpreter to ensure that the accused truly understands what it is he or she is doing, unless counsel for the accused is fluent in the accused's language or has communicated with the accused through an interpreter before coming to court and satisfies the court that the nature of the right and the effect on that right of waiving it have been explained to the accused.

[…]

(vi) Summary of Conclusions

[78] The scope of the right to interpreter assistance guaranteed by s. 14 of the Charter may be stated in the following broad terms. The constitutionally guaranteed standard of interpretation is not one of perfection; however, it is one of continuity, precision, impartiality, competency and contemporaneousness. An accused who does not understand and/or speak the language of the proceedings, be it English or French, has the right at every point in the proceedings in which the case is being advanced to receive interpretation which meets this basic standard. To establish a violation of s. 14, the claimant of the right must prove on a balance of probabilities not only that he or she was in need of assistance, but also that the interpretation received fell below the basic, guaranteed standard and did so in the course of the case be ing advanced. Unless the Crown is able to show on a balance of probabilities that there was a valid and effective waiver of the right which accounts for the lack of or lapse in interpretation, a violation of the right to interpreter assistance guaranteed by s. 14 of the Charter will have been made out. While there will be circumstances in which waiver of the right to interpreter assistance will not be permitted for reasons of public policy, in situations where waiver is possible, the Crown must not only show that the waiver was clear and unequivocal and made with a knowledge and understanding of the right, but also that it was made personally by the accused or with defence counsel's assurance that the right and the effect on that right of waiving it were explained to the accused in language in which the accused is fully conversant.

[…]

[80] The question here is whether the appellant was denied his s. 14 Charter rights in the course of his trial. Specifically, was the appellant's right to interpreter assistance violated when the interpreter testified as a defence witness and, rather than giving his answers in English and Vietnamese, simply provided summaries in Vietnamese of his testimony and, in the case of a brief exchange with the trial judge, failed to provide any interpretation whatsoever? To answer this question, the analytical framework developed above must be applied to the facts of this case.

[…]

[82] Since I am satisfied that the appellant did not understand or speak English, the language of the proceedings, and, therefore, that he was in need of interpreter assistance throughout his trial as found by the trial judge, the first step in the analysis will be to determine whether there was in fact a departure from the general standard of continuous, precise, impartial, competent and contemporaneous interpretation guaranteed by s. 14 of the Charter. In my view, there is no doubt that the interpretation of the proceedings in which Mr. Nguyen was involved as a witness fell well below what it should have been.

[83] First, the appellant did not receive continuous interpretation of all of the evidence at his trial. Rather, the questions posed to and answers given by Mr. Nguyen were distilled and condensed into two, one-sentence summaries. Moreover, there is nothing in the record to suggest that the interpreter's exchange with the judge was translated at all, not even in summary form. In other words, the requirement of continuity was not complied with.

[84] Second, the interpretation provided to the appellant was not precise. Not only was it completely missing in the case of the interchange with the judge, but also the one-sentence summaries which were provided failed to convey everything that had been said. In addition, the first summary was incorrect in that it referred to something which had not in fact been said. That is, Mr. Nguyen told the appellant that he had testified that the appellant's "face hasn't changed at all". However, nowhere in Mr. Nguyen's actual evidence was the appellant's face mentioned.

[85] Third, while there is no reason to doubt the actual impartiality or objectivity of the interpretation provided by Mr. Nguyen, the practice of having an interpreter act as both a witness and an interpreter is one which should be avoided in all but exceptional circumstances (e.g. where there is nobody else who can testify on the matter in question). In the rare event that such a dual role becomes necessary, it is the court's responsibility to make it clear that the interpreter is no longer serving in his or her capacity as an officer of the court and to appoint another interpreter for the remainder of the proceedings. Otherwise, having the interpreter double as a witness may give rise to a reasonable apprehension of bias, not to mention practical and logistical dif ficulties with respect to the interpretation being provided.

[86] Lastly, the timing of the interpretation was unsatisfactory. It should have occurred contemporaneously with the asking of questions and the giving of answers. Indeed, at the outset, both the trial judge and defence counsel instructed the interpreter to give his answers in English and Vietnamese. However, these instructions were disregarded by Mr. Nguyen, who failed to provide consecutive interpretation.

[87] To summarize, the interpretive assistance which was furnished to the appellant at the stage in the proceedings when the interpreter was on the witness stand was clearly deficient. At a minimum, it was neither continuous, precise nor contemporaneous. There is no doubt in my mind that it fell below the general standard of interpretation which is protected under s. 14 of the Charter. The next question then is whether the lapses in interpretation occurred in the course of the case being advanced. While the Court of Appeal below was correct in saying that the assistance provided to the appellant fell short of the "ideal standard", in my respectful opinion, it was wrong not to recognize that this lapse was a significant one which infringed the appellant's s. 14 Charter rights.

[88] The lapses in interpretation which occurred were not trivial or de minimis in nature. Rather, they occurred at a point when the appellant's vital interests were clearly involved and, therefore, the case was being advanced. The problems with the interpretation arose during the testimony of a witness. It is axiomatic that an accused has the right to confront all witnesses and to be meaningfully present while evidence is being adduced, be it for or against the accused. In addition, the evidence given by Mr. Nguyen covered a topic of considerable importance to the appellant — namely, the issue of identification upon which his entire defence was built. The details of Mr. Nguyen's testimony concerning the appellant's weight were vital. By simply being given one-sentence summaries of the evidence, the damage that had been done to Mr. Nguyen's testimony in cross-examination and in the exchange with the trial judge was not conveyed to the appellant. The trial judge's questions to the interpreter and the answers he received indicated that the interpreter did not know the appellant until two months after the alleged assault. In other words, the interpreter's evidence was not probative of the accused's weight at the time of the offence. Moreover, the first one-sentence summary which the appellant received was misleading. By telling the appellant that he had testified that the appellant's face had not changed at all, when in fact he had said no such thing, the interpreter may have left the appellant with the impression that his evidence would cover concerns about fluctuations in his weight (since the complainant's identification was based on a photo line-up).

[89] As a consequence of not being fully informed in a timely fashion of what was actually being said, the appellant was not in a position to instruct his counsel with respect either to re-examination of the interpreter, or to calling another witness who might have been able to testify about his weight at the time of the alleged offence. If, for example, another witness had been called and been credible, that witness' evidence might have raised the necessary reasonable doubt required for an acquittal. The uncertainty associated with the question of what might have happened had the accused received the quality of interpretation to which he was entitled under s. 14 of the Charter demonstrates that courts must not engage in speculating about the utility or non-utility of proper interpretation. What is important is that the appellant was in need of interpreter assistance and was denied at a point when the case was clearly being advanced the standard of assistance to which he was entitled and which he is presumed to have required in order to understand the proceedings.

[90] With the greatest of respect, I simply cannot agree with the Court of Appeal that, because the evidence which was not properly interpreted proved in the end to be of minor probative value, the appellant was not deprived of his right to be present or to make full answer and defence. The evidence concerning the appellant's weight was relevant to the central issue in the case, that of identification. In his reasons for judgment, the trial judge discussed at some length the question of the appellant's weight at the time of the alleged offence and ultimately relied on the identification evidence of the police officer and the complainant. Had there been credible evidence from the defence that the accused was not "fat" at the time of the assault, this evidence might have created a reasonable doubt in the trial judge's mind. For the Court of Appeal to say after the fact that the poor interpretation received by the appellant made no difference to the outcome of the case is, in my opinion, to engage in the kind of second-guessing and speculation which I have suggested is inappropriate in determining whether there has been a breach of s. 14 of the Charter. Irrespective of whether the interpreter's evidence actually affected the appellant's right to full answer and defence, something we cannot know with certainty, the appellant was entitled under s. 14 to hear fully and contemporaneously what was being said on the topic of his weight.

[…]

[95] To conclude, I find that the appellant needed an interpreter, that the standard of interpretation provided to him fell well below what was required under s. 14 of the Charter, and that the lapse in interpretation which occurred took place at a point in the proceedings when the case was clearly being advanced. In addition, the Crown has not satisfied me that there was a valid and effective waiver of the right in this case.

R. v. Mercure , [1988] 1 S.C.R. 234, 1988 CanLII 107 (SCC)

[56] Turning first to the languages of the courts, it is settled by Société des Acadiens, supra, that while a person is constitutionally entitled to speak French in court in New Brunswick under s. 19(2) of the Charter, he has no right to be understood in that language. The judge and all court officials may use English or French as they wish both in oral and in written communication; see also MacDonald v. City of Montreal, supra, at pp. 483 and 497. As I read Beetz J.'s judgment in Société des Acadiens, the appellant has no right to a translator, except as required for a fair trial either at common law or under ss. 7 and 14 of the Charter (p. 577). The right to be understood is not a language right but one arising out of the requirements of due process. Beetz J. in Société des Acadiens carefully employs the word "power" to describe the language rights accorded an individual. He says, at p. 574: "They vest in the speaker or in the writer or issuer of court processes and give the speaker or the writer the constitutionally protected power to speak or to write in the official language of his choice" (emphasis added). At page 575, he contrasts this power to language provisions that provide for the right to communicate (s. 20 of the Charter) or to be heard (s. 13(1) of the Official Languages of New Brunswick Act, R.S.N.B. 1973, c. O-1).

[57] Applying these principles to the present case, it seems to me that the trial judge could, subject to what I shall have to say later about records, proceed with the trial in English. There is no evidence to indicate that the appellant needed the services of a translator to understand the proceedings, so a fair trial could be conducted without making a translation available from English to French. At all events, what the appellant sought throughout these proceedings was to vindicate his language rights, not the right to a fair hearing.

[58] Counsel for the Freedom of Choice Movement, however, argued that the principle of equality in the use of language is breached by employing a translator to make a person understood by the trial judge. Such translation, he stressed, puts a person whose words must be translated in a far less favourable position than one who can be understood directly. However, it seems to me that this argument, too, was rejected by the majority of this Court in Société des Acadiens. There Beetz J. had this to say on the point at p. 580:

I do not think the interpretation I adopt for s. 19(2) of the Charter offends the equality provision of s. 16. Either official language may be used by anyone in any court of New Brunswick or written by anyone in any pleading in or process issuing from any such court. The guarantee of language equality is not, however, a guarantee that the official language used will be understood by the person to whom the pleading or process is addressed.

Before I leave this question of equality however, I wish to indicate that if one should hold that the right to be understood in the official language used in court is a language right governed by the equality provision of s. 16, one would have gone a considerable distance towards the adoption of a constitutional requirement which could not be met except by a bilingual judiciary. Such a requirement would have far reaching consequences and would constitute a surprisingly roundabout and implicit way of amending the judicature provisions of the Constitution of Canada.

Beetz J. in that case at p. 574 and in MacDonald, supra, at pp. 500-501, was at pains to indicate that the right to due process, which is substantially what concerns the intervener, should not be linked with language rights because they are conceptually different, and the effect of doing so would involve the risk of distorting both rather than reinforcing either.

[59] There is a matter regarding translation, however, that was not raised in Société des Acadiens but that does arise in this case. In the Société des Acadiens, the issue was whether the judge understood the appellant (which it was held he did). Beetz J., however, left to another day the issues regarding the reasonable means necessary to ensure that the members of the courts understand the proceedings. He also did not deal with the issue, which has some relation to the matters just mentioned, whether when proceedings are required by law to be recorded, a person using one or the other official language has the right to have his remarks recorded in that language. Nor did that issue arise in MacDonald, supra, or Bilodeau v. Attorney General of Manitoba, [1986] 1 S.C.R. 449. These cases were essentially addressed to whether processes validly made in one only of the official languages were required to be translated in the other. As already mentioned, however, it does arise in the present case, both as regards the making of a plea and the giving of evidence by the appellant.

[60] In my view, the appellant's right or power to use French would be seriously truncated if recorded in another language. For his use of the language goes beyond the immediate forum. The proceedings, for example, may continue in the Court of Appeal where the judges may quite properly wish to refer to the exact words used by a person at trial, words that person has a right to use. Absent valid legislation requiring the recording of the appellant's statements in one language only, and none was brought to our attention, the appellant would seem to me to have a right to have his statements recorded in the French language. His situation, of course, differs from that of a person who uses a language other than English or French whose rights to translation derive solely from the requirements of due process.

MacDonald v. City of Montreal , [1986] 1 S.C.R. 460, 1986 CanLII 65 (SCC)

[110] Suppose that a person is charged with a criminal offence drafted in either the French or the English language and that person does not understand the language of the charge. It goes without saying that this person cannot be asked to plead and be tried upon the charge in these circumstances. What will happen as a matter of practice as well as of law is that the judge will call upon a sworn interpreter to translate the charge into a language that the accused can understand. But this is so whether the accused speaks only German or Cantonese and has nothing to do with what s. 133 [of the Constitution Act, 1867] stands for. Provision is made for this different purpose by other enactments relating for instance to interpreters and under other principles of law some of which are now enshrined in the provisions of distinct constitutional or quasi-constitutional instruments, such as s. 2(g) of the Canadian Bill of Rights and s. 14 of the Charter, also relating to interpreters. See for instance: Attorney General of Ontario v. Reale, 1974 CanLII 23 (SCC), [1975] 2 S.C.R. 624; Unterreiner v. The Queen (1980), 51 C.C.C. (2d) 373 (Ont. Co. Ct.); Sadjade v. The Queen, 1983 CanLII 163 (SCC), [1983] 2 S.C.R. 361.

Société des Acadiens v. Association of Parents , [1986] 1 S.C.R. 549, 1986 CanLII 66 (SCC)

[60] The common law right of the parties to be heard and understood by a court and the right to understand what is going on in court is not a language right but an aspect of the right to a fair hearing. It is a broader and more universal right than language rights. It extends to everyone including those who speak or understand neither official language. It belongs to the category of rights which in the Charter are designated as legal rights and indeed it is protected at least in part by provisions such as those of ss. 7 and 14 of the Charter. […]

Thibeault J.R.N.J. (Captain), R. v., 2014 CM 3022 (CanLII)

[11] My understanding of the situation is through the Official Languages Act, which is a federal act and would apply to this tribunal, a court martial, because my understanding is that the court martial is a federal tribunal, a federal court in the sense that it’s a court enacted by a federal act. So, provisions of the Official Languages Act would apply and, also as a matter of fact, the Constitution would find application to the court martial especially sections 19, 14, and 7 of the Canadian Charter of Rights and Freedoms.

[12] I closely reviewed various scenarios concerning this situation.

(a) First, if I look at the context of a bilingual trial, the judge and the prosecutor would be able to proceed, as they are bilingual, and the witnesses would be able to testify in their own language, without the need of an interpreter. Defence counsel would be unilingual Anglophone, witnesses would testify in English, and if the accused does testify, he would do it in French.

(b) Then, there is the question of requiring an interpreter, not for the accused testifying in French, but rather for allowing the defence counsel to understand the testimony of his own client. This context relies on the interpretation of section 14 of the Charter. Does section 14 apply in the situation where an interpreter be provided for defence counsel, in representing the accused? I rely primarily on the decision of Cormier v. Fournier, a decision rendered by Justice Godin on 23 May 1986 (1986 CanLII 92 (NB QB)), at page 20. “Section 14 has no application to lawyers.” Protection under section 14 is mainly for the accused and cannot be expanded to a lawyer representing the accused. So, if I order a bilingual trial in the circumstances, providing an interpreter for defence counsel, Mr Brown, as is my understanding, would not be possible.

(c) If we were to proceed with a French trial, as it was done for the first trial, the judge has the ability to speak and understand French, as does the prosecutor; defence counsel would not have the ability to understand nor speak French; witnesses would provide their evidence in English and an interpreter would be provided in accordance with section 14 of the Charter; the accused would be able to testify in his own language, which is French. There, again, the issue would be the requirement for an interpreter for defence counsel. The court would likely respond as in the context of a bilingual trial, that is, the right to an interpreter for counsel, an officer of the court, such as defence counsel of the accused, would not be allowed.

(d) So, I am turning now to the third possibility which is the actual one before me. My understanding is that, in the military justice system, when a charge is laid, the accused must indicate in which language he would like the trial to take place before any service tribunal. In this case, Captain Thibeault has indicated that his language of choice for his trial is English. An English trial would mean, therefore, in this case, that again the judge and both counsel have the ability to speak and understand English, as do the witnesses. The accused, however, would be in a different position. The question is, considering the context presented to me: can the accused be provided with an interpreter when he is presumed to understand and speak the language in which the proceedings are conducted? In this case, I must conclude that the accused is not presumed to understand nor speak English, the language of the trial.

[13] I am taking a practical approach to this issue. I am governed by, and my main concern is that, throughout this entire trial and all its proceedings, the benefit of a fair trial for the accused, including his ability to make a fair and full defence in these proceedings in accordance with his right entrenched in section 7 of the Charter. To understand the meaning of that right, I looked at R. v. Tran, 1994 CanLII 56 (SCC), [1994] 2 S.C.R. 951, a Supreme Court of Canada decision, which although different in facts (in Tran, the accused was unable to speak either French or English), provided inspiration to this court in finding a solution for this matter. The accused chose to have his trial in English for several reasons. First, the evidence, apart from the accused’s own testimony, is in English. Second, the accused chose to be represented by a unilingual (English) defence counsel, which raises the issue of choice of counsel. Those rights (the fairness of trial, choice of counsel) are established in section 7 of the Charter. To simplify understanding of this unique situation, the areas of concern may be distilled to the following: the accused speaks French, has limitations in understanding and speaking English. His choice of counsel, I infer, is based on the language in which the evidence would be adduced. Finally, the accused wishes to testify in French while being represented by English-speaking counsel.

[14] The rights under section 7 of the Charter and as interpreted in Tran play a role here. The right to an interpreter relates to the notion of fairness of trial and refers to the right of the accused to have an interpreter. In this matter, if I decide that, for this English trial, the accused has a right to an interpreter when he testifies, in these particular circumstances, I find he will not be afforded any more rights than others, because of it being, considering the very specific context of this case, a retrial based on the Court Martial Appeal Court’s concern about the accused’s ability to testify.

[15] Choosing to have the trial in English, having the evidence adduced in English, being represented by a counsel who speaks and understands English, in this context, makes sense to me. He has the right, if he so chooses, to express himself in French, but his testimony would be delivered through an interpreter, meaning that the court would obtain and consider the evidence, as provided by him, through an interpreter. The court can, at any point, question the quality of the interpretation; therefore, if I have any concern, I may, at some point, raise the issue.

[16] Having said that, I believe that getting duly qualified, experienced interpreters will erase any doubt on that point. To clarify, the evidence provided by the accused would be in French translated into English. The judge of the facts will then have to consider the evidence of the accused as translated into English. My understanding is that the accused would be comfortable with that process, after having explored many possibilities with his counsel. I believe Mr Brown has been fully instructed by his client on this aspect, language of trial, and his client’s willingness to proceed in this fashion, that is, the judge of facts will receive and consider his translated testimony.

[17] The trial would be conducted in English, the language chosen by the accused. It would give effect to the right of the accused to full and fair defence, including being represented by counsel of his choice. Also, it would address one concern I raised, the fact that in order to provide adequate testimony, if he chooses to testify, he would get a good understanding of what had been said by other witnesses.

[18] What I would like is to have an interpreter, not only for translating his own testimony, but also, as a matter of fairness, to have an interpreter sit beside him in order to, when necessary, provide him with interpretation of witnesses’ testimony. I understand not many witnesses are involved in this matter, two witnesses, if I’m right, so it is not a lengthy trial in that respect. I think that, as a matter of fairness, having an interpreter sitting beside Captain Thibeault for the full duration of the trial would address my concerns with respect to his understanding of what occurs during the proceedings and, in addition, an interpreter would be provided for his testimony, if choose (sic) to testify.

[19] Choosing to address the language issue in this way, settles for me the matters of fairness of the trial, being represented by his counsel of choice, and his choice of language for the trial. In making this decision, I do not find he gets any more rights than others. This doesn’t mean that in other circumstances I would arrive at the same conclusion.

[20] So, my decision concerning this application is not to grant the application for a bilingual trial. The proceedings of this trial will be conducted, as requested by Captain Thibeault, in English. An interpreter will be provided to the accused for the duration of these proceedings starting on the first day of the proceedings. An interpreter will sit beside Captain Thibeault throughout the proceedings, providing translation on request by Captain Thibeault. It won’t be simultaneous interpretation because, as raised by defence counsel, the cost outweighs the need. Captain Thibeault is ensured of having a full understanding of what occurs during the proceedings, and, on his request, will obtain translation from the interpreter at any point in the proceedings. The flow of the proceedings may be a little different than is customary; he may ask me to stop in order to ask a question to an interpreter on what was said. It will be up to me to manage this properly, but he may ask me to stop, at any point, in order for him to gain full understanding of what has been said.

[21] As the interpreter is an officer of the court, I intend to proceed as usual and have the interpreter take an oath or solemnly affirm before commencing the proceedings. The qualification and experience of the interpreters will be authenticated, allowing for official interpretation, should Captain Thibeault decide to testify in this trial. I think this is the best way to achieve a fair trial in this matter and address concerns raised by Captain Thibeault with respect to language of trial. So, that is my decision. The Court Administration will address these operational requirements. We will start the trial on Monday with the first thing the court having to address being the application concerning the type of court martial. Once I provide my decision on that application, then unless there is any other application, the court will be adjourned to 15 February, regardless of the type of court martial decided. […]

Clohosy v. R., 2013 QCCA 1742 (CanLII) [judgment available in French only]

[OUR TRANSLATION]

[56] What can be learned from these principles [laid down in Tran, Shyshkin, Dow and Roy Martin]? The decisions cited above all agree that consecutive interpretation has more advantages than simultaneous interpretation. Moreover, it allows the accused or his or her counsel to react more quickly and to detect problems with the interpretation more easily, should any arise. Finally, for now at least, it is the only method allowing the translation to be recorded and transcribed.

[57] The purpose of s. 530.1(g) Cr.C. is to ensure that the parties have a complete recording of the proceedings, as well as their interpretation. Dow and Martin, in light of the prevailing conditions in Quebec’s courthouses, state that consecutive interpretation has now become an indispensable method. While it is preferable to any other form of interpretation in all circumstances, consecutive interpretation is in any event unavoidable in all cases where the court is unable to guarantee the accused full compliance with s. 530.1(g) by any means other than this method.

[58] The record does not show that the judge truly considered the issue of the interpretation method’s appropriateness and its consequences. In ordering simultaneous interpretation instead of consecutive interpretation, the judge had to make sure that the record would include the entire recording of the interpretation at all times, which was not done. This is an error that, as we shall see further on, irreparably infringed the appellant’s language rights.

Dow v. R., 2009 QCCA 478 (CanLII)

[53] Subject to the issue of waiver, the absence of any interpretation at all would necessarily engage consideration of section 14 of the Canadian Charter and the judgment of the Supreme Court of Canada in R. v. Tran. In that case it was held, amongst other conclusions, that the failure to provide an accused with a complete translation of the proceedings in a judge-alone trial from English to Vietnamese violated his section 14 Canadian Charter rights, and a new trial was ordered.

[…]

[78] I would also add that it is generally recognized that the fulfillment of the language guarantee available to an accused is better served by consecutive rather than simultaneous interpretation, which is the only way to make it possible to have a transcript in both languages.[…]

[…]

[86] In Mr. Dow's case, there is simply no basis on the record before the Court to conclude that the elevated standard mentioned by Lamer, C.J. to constitute a valid waiver of his rights under section 530.1 Cr. C. and section 14 of the Canadian Charter was satisfied by his affirmative answers to the two inquiries from the trial judge I have mentioned in paragraphs [81] and [83]. Nor do they justify the absence of interpretation in the presence of the jury in the three situations I have described in paragraph [52] of these reasons.

[87] This is particularly the case since the Crown never suggested in its factum or during oral argument there was a valid reason for Mr. Dow to be asked to waive any of his rights. Whatever that reason may have been, it had nothing to do with any concern for Mr. Dow. One is left with the inevitable conclusion that the request to Mr. Dow was made for the personal convenience of the trial judge and counsel, which is as far removed as one can imagine from there being a valid reason. Quite simply, the trial judge should not have made any such request of Mr. Dow.

[88] Moreover, a trial judge in such circumstances exercises considerable influence over an accused such as Mr. Dow simply by the disparate nature of their relationship in light of the function the judge exercises and the precarious position of an accused whose liberty is at stake. It is therefore hardly surprising that someone such as Mr. Dow would have responded affirmatively to the trial judge's two requests.

[89] In any event, in this instance the trial judge and Crown counsel misapprehended the purpose for which an interpreter is present at the trial of an English-speaking accused. The only reason for an interpreter is because one or more French-speaking witnesses will testify. The proper role of the interpreter is thus limited to interpreting the questions of counsel from English to French for a French-speaking witnesses and the answers of such witnesses from French to English. The presence of an interpreter is for the benefit of French-speaking witnesses, the accused and the jury, but not for that of the trial judge and Crown counsel, who must conduct themselves as if there was no interpreter present in the courtroom. This is the only conclusion to be drawn from the absence of reference to the trial judge and Crown counsel in sub-section 530.1(f) Cr. C.

[…]

[95] With respect to the conduct of defence counsel amounting to an acquiescence of what transpired, two comments are warranted.

[96] First, as I have already mentioned, such counsel candidly acknowledged being unaware of the extent of the language guarantees Mr. Dow enjoyed, particularly under section 530.1 Cr. C. That is shown by their speaking French knowing there was no consecutive interpretation taking place and thus that there was no possibility of a transcript of the interpretation in English. Hence, they could not have knowingly waived their client's rights by their conduct. I am also persuaded that had they known of such rights, they would have insisted on their respect, just as defence counsel did in Potvin.

[97] Second, given the intrinsically personal nature of language rights, it would require some indication that such counsel were acting as they did with the full knowledge and understanding by Mr. Dow of the consequences of that conduct. Such an indication is entirely lacking in the record before the Court.

IV CONCLUSION

[98] In light of the failure to fully respect Mr. Dow's rights under governing appellate case law interpreting section 530.1 Cr. C., and section 14 of the Canadian Charter, the curative provisions of sub-section 686(1)(b) Cr. C. cannot be applied.

[99] Despite the inapplicability of sub-section 686(1)(b) Cr. C. can it nevertheless be said that Mr. Dow’s rights were sufficiently respected to the point that the Court should not intervene? After all, the failure to comply with certain aspects of section 530.1 Cr. C. and section 14 of the Canadian Charter took place for the most part outside the presence of the jury. Mr. Dow was provided with simultaneous translations when voir dire testimony, legal argument and interlocutory judgments occurred in French in that context.

[100] In my opinion there is no justification for not intervening when the object of the language guarantees is considered. As the case law I have reviewed from this Court, the Ontario Court of Appeal and the Supreme Court of Canada makes clear, that object is substantive equality between those of the linguistic majority and those of the linguistic minority in each Canadian province and territory. Moreover, the failure to respect the rights flowing from the applicability of section 530 Cr. C. constitutes "a substantial wrong and not a procedural irregularity".

[101] In this instance, substantive equality means at the very least that an accused who is a member of one of Canada's linguistic minorities within a Canadian province or territory should have a trial judge and prosecutor assigned to his or her case who is not only able but also willing to speak the language of that accused throughout the trial, on the same basis as if the accused was a member of that province's or territory’s linguistic majority. It also means that the trial judge in any Canadian province or territory should not seek to have such an accused waive his rights, or acquiesce to any purported waiver of his rights, for reasons of convenience to others involved in the trial.

[102] Mr. Dow’s trial was not an example of the substantive equality required to an extent that was much more than merely trivial.

[103] In such circumstances, it would be wrong for the Court to close its eyes to what happened to Mr. Dow and simply express the hope that it doesn't happen again to some other accused. He was entitled to a trial that fully respected his language rights, and that is what he should now have.

R. v. Rybak , 2008 ONCA 354 (CanLII)

67] The guarantee in s. 14 serves several important purposes. It ensures that a person charged with a crime hears the case against him or her, and is furnished with a full opportunity to answer it. The right touches on the very integrity of the administration of justice in the country and is intimately related to our basic notions of justice, including the appearance of fairness. Likewise, the right displays an affinity for our claim of multiculturalism, partially demonstrated by s. 27 of the Charter (R. v. Tran, 1994 CanLII 56 (SCC), [1994] 2 S.C.R. 951, [1994] S.C.J. No. 16, 92 C.C.C. (3d) 218, at pp. 977-78 S.C.R., p. 240 C.C.C.).

The principle underlying the guarantee

[68] The interests protected by the right to interpreter assistance guaranteed by s. 14 are in service of the underlying principle of linguistic understanding (Tran, at pp. 977-78 S.C.R., p. 240 C.C.C.).

[69] Linguistic understanding, like physical and intellectual presence, is an aspect of the requirement in s. 650(1) of the Criminal Code that an accused, other than an organization, "shall be present in court during the whole of his or her trial", apart from certain exceptions in s. 650(2) none of which apply here (R. v. Reale, 1973 CanLII 55 (ON CA), [1973] 3 O.R. 905, [1973] O.J. No. 2111, 13 C.C.C. (2d) 345 (C.A.), at p. 914 O.R., p. 354 C.C.C., affd 1974 CanLII 23 (SCC), [1975] 2 S.C.R. 624, [1974] S.C.J. No. 118, 22 C.C.C. (2d) 571).

[70] The principle of linguistic understanding is reflected in the unqualified language of s. 14 of the Charter, and forms an integral part of the presence requirement of s. 650(1) of the Criminal Code. In these circumstances, it should scarcely surprise that the level of understanding protected by s. 14 is, of necessity, high (Tran, at pp. 977-78 S.C.R., p. 240 C.C.C.).

[71] The substance of the guarantee in s. 14 ensures that a party has the same basic opportunity to understand and be understood as if she or he were conversant in the language of the proceedings. That said, the principle of linguistic understanding is not to be elevated to the point where those with difficulty communicating in or understanding the language of proceedings are given, or are seen to be given, unfair advantage over those fluent in the language of proceedings. In the end, the purpose of the right to interpreter assistance is to create a level and fair field of play, not to provide some individuals with more rights than others (Tran, at pp. 978-79 S.C.R., p. 241 C.C.C.).

[…]

[81] The Tran court identified several criteria as inclusive, but not exclusive: continuity, precision, impartiality, competency, contemporaneity (Tran, at pp. 985-86 S.C.R., p. 246 C.C.C.).

[82] Continuity ensures that interpretation is continuous, without breaks or mere summaries of evidence or other aspects of the proceedings. Precision does not require perfection. Interpretation involves a lower standard than translation. Impartiality ensures that the interpretation provided is objective and unbiased (Tran, at pp. 985-988 S.C.R., pp. 246-48 C.C.C.).

[83] The criterion of competence insists upon an interpretation of sufficiently high quality to ensure that justice is and appears to be done. We lack universally acceptable standards for the assessment of competency, although we do require an interpreter to take an oath or make a solemn affirmation before beginning any interpretation of the proceedings. Competence inquiries are mandated where there are legitimate reasons to doubt an interpreter's competence (Tran, at pp. 987-90 S.C.R., pp. 248-49 C.C.C.).

[84] Competence and accreditation are not co-extensive. In the absence of universally acceptable standards for assessing interpreter competency, neither presence nor absence of accreditation can be considered dispositive of the issue of competence (Tran, at pp. 987-90 S.C.R., pp. 248-49 C.C.C. See also, State v. Pham, 879 P.2d 321, 75 Wn. App. 626 at 326 (1994), at p. 326 P.2d; R. v. Ungvari, [2003] E.W.J. No. 4217, [2003] E.W.C.A. Crim. 2346 (C.A. (Crim. Div.)), at para. 23; and Martins v. Texas, 2001 Tex. App. LEXIS 5096, 52 S.W.3d 459 (2001), at pp. 473-74 S.W.3d).

[85] Interpretation must occur contemporaneously with the proceedings being interpreted. The preferable method of achieving contemporaneity is to have consecutive, rather than simultaneous interpretation.

[86] It is not every deviation from the procedural standard of interpretation that offends s. 14. Some do. Others do not. A party who claims a s. 14 breach must demonstrate that the lapse in interpretation that occurred had to do with the proceedings themselves, and thus with the vital interests of the accused, not merely with collateral or extrinsic matters like scheduling or something similar (Tran, at pp. 990-91 S.C.R., p. 250 C.C.C.).

[…]

[94] It falls to the appellant to demonstrate, on a balance of probabilities, that the interpreter assistance provided here came up short of the constitutionally guaranteed benchmark.

[95] Despite express invitation from the trial judge to alert him to any difficulties encountered by the appellant with the interpreter, or with the interpretation, the trial record is eerily silent, utterly barren of any suggestion of incompetence or other interpretation deficiency. To the contrary, when the interpreter issue was first bruited during pre-trial motions, the appellant supported the assignment of Ms. Zywulko as the interpreter, and sought assurances from the trial judge that she would remain throughout the trial. His request was honoured.

[96] The imposition of an onus on a party who advances constitutional infringement as the foundation for particular relief, here a new trial, carries with it the obligation to discharge the onus by some form of proof. Proof of infringement is a condition precedent to entitlement to a remedy. Said another way, the remedy is not for the asking, only upon the showing.

[97] The appellant's proof consists of fresh evidence culled from another and later proceeding. It shows that the interpreter supplied here was not accredited by the Ministry of the Attorney General (she failed the accreditation test twice and withdrew a third time). She was put forward by the interpreter coordinator, whether knowingly or unwittingly, as accredited. She had served as an interpreter in the courts in Peel Region for a decade. According to one accredited interpreter, Ms. Zywulko was one of the best interpreters available, accredited or not.

[98] What is lacking in the appellant's fresh evidence materials, is a nexus between the systemic and accreditation flaws identified in the materials filed, and the interpreter assistance provided in this case: no affidavit or other evidence from the appellant, none from trial counsel and deafening silence in the trial record. Something supportive of this claim of constitutional infringement is necessary, but lacking (Pham, at paras. 5-6; and Mohammadi c. R., [2006] Q.J. No. 6809, 2006 QCCA, at para. 36).

[99] The appellant urges a bright line rule that essentially proceeds from any showing of a need for interpreter assistance to provision of continuous, precise, impartial, competent and contemporaneous interpretation as the only means of ensuring that the language deficient have the same opportunity as those conversant in the language of trial. Such a rule would render the procedure followed here per se constitutionally flawed.

[100] In my respectful view, the teachings of Tran are that the interpretation provided must be sufficient to ensure that the language deficient have the same opportunity as the language proficient to understand and be understood in the proceedings. Some require more than others, as in Tran, to reach the required level of understanding. Tran recognizes allowable departures from its general, though not unremitting rule (Tran, at pp. 990-91 S.C.R., p. 250 C.C.C.). This appellant had difficulty with certain words. He was offered and accepted a method of interpretation that serviced his language deficiency. He made no complaint about any inadequacies at trial and has introduced no evidence on appeal indicative of any deficits.

R. v. Koaha , 2008 NUCA 1 (CanLII)

[15] As I have already stated, the issue is not whether Mr. Koaha needed the assistance of an interpreter. The transcript of the hearing shows that early on in his evidence, he said he needed his lawyer’s questions translated. From that point on, the court interpreter began assisting Mr. Koaha. The questions, asked in English by Mr. Koaha’s lawyer, were translated into Inuinnaqtun by the interpreter. Mr. Koaha’s answers in Inuinnaqtun were translated into English.

[16] Mr. Koaha argues that the transcript of the sentencing hearing and the transcript of his cross-examination on his Affidavit show that the interpretation in this case was deficient and did not meet the standards mandated by the Charter. […]

[26] Mr. Koaha’s failure to say anything about his difficulties with the interpretation is not determinative, but it is a factor to be considered in assessing his claim that his rights were breached, especially since there continues to be no explanation for why he said nothing at the time.

[27] In R. v. Tran, supra, at para 50, the Supreme Court commented on this issue, albeit in the slightly different context. In its discussion about how courts should approach the assessment of the needs branch of the s. 14 analysis, the Court said:

While courts must be alert to signs which suggest that an accused may have language difficulties, they are not nor can they be expected to be mind readers. Where there are no outward indications which point to a lack of understanding on the accused's part and where the right has not been invoked by the accused or by counsel (in the case of represented accused), these may be factors which are weighed against the accused if, after sitting quietly throughout the trial, the issue of interpretation is suddenly raised for the first time on appeal.

[28] In my view, these comments are also relevant to the assessment of a person’s claim that the interpretation services provided to them were inadequate. If the issue is not raised at the time of the proceedings, that is a factor that may weigh against making a finding that there was in fact a breach.

[29] It is true that Mr. Koaha was not in a position to know, at the time of the proceedings, whether his answers were being translated properly into English. But he certainly was in a position to know whether he understood the questions as translated for him by the interpreter, in the same way as he was able to speak up when he could not understand the questions put to him in English.

[30] I acknowledge that because the proceedings were not audio-recorded, an independent review of the interpreter’s work during this sentencing hearing cannot be conducted. It is not possible for Mr. Koaha to hear back his answers in Inuinnaqtun, and verify through another interpreter whether those answers were adequately translated into English. It is also not possible for him to verify that the questions asked in English by his lawyer were correctly translated into Inuinnaqtun.

[31] There is little doubt that it would be a preferable practice to record these types of proceedings as a matter of course. There may be logistical reasons why this is not always possible, but any time an issue related to interpretation is raised on appeal, having a full record of the proceedings and of the interpretation would, obviously, be very helpful. If, on the face of the record, there appeared to be deficiencies with the interpretation, the absence of a more complete record of the proceedings may leave the reviewing Court with no alternative but to find that there was a breach of section 14 of the Charter. However, in the circumstances of this case, I am not satisfied that the record of the proceedings raises the type of concern that make (sic) the absence of an audio recording fatal.

[32] Finally, I turn to Mr. Koaha’s argument that his section 14 rights were breached because the interpreter who assisted him was not sworn. Mr. Koaha argues that this fact alone is dispositive of this appeal. His arguments rests on Paragraph 62 of R. v. Tran, supra:

To meet the standard of protection guaranteed by section 14 of the Charter, interpretation must be of a high enough quality to ensure that justice is done and seen to be done. This means, at a minimum, that an accused has the right to competent interpretation. While there are, as of yet, no universally acceptable standards for assessing competency, a point stressed by Steele at p.238, an interpreter must at least be sworn by taking the interpreter’s oath before beginning to interpret the proceedings. Where there is a legitimate reason to doubt the competency of a particular interpreter, a court will be well advised to conduct an inquiry into the interpreter’s qualifications. (Citations omitted)

[33] This passage suggests that having the interpreter sworn is a prerequisite to a finding that the services offered met the standard of protection guaranteed by section 14. However, I am not persuaded that this general statement should be interpreted as creating an absolute requirement for the interpreter to be sworn, in all cases, and irrespective of context.

[34] Interpreters are used on a regular basis during circuits of the Nunavut Court of Justice. They provide simultaneous translation for members of the public who attend Court. They also provide, as the need arises, interpretation services for accused persons or witnesses who require assistance. It is the norm, not the exception, to have them provide interpretation services during Court sittings. These interpreters are not strangers to the Court. On the contrary, they are fully integrated in its daily workings.

[35] This reality is readily apparent from the record in this case: when Mr. Koaha said he needed an interpreter, there was no need for an adjournment to arrange for the interpreter to attend or even for the interpreter to set up the interpretation equipment. The interpreter immediately began assisting Mr. Koaha and the proceedings continued seamlessly, virtually without any interruption. This speaks volumes about the level to which the interpreters’ work is integrated in the daily operations of the Nunavut Court of Justice.

[36] That is not to say that the quality of the interpreters’ work in Nunavut cannot be challenged, or that the standards by which the quality of interpretation is assessed should be any lower here than in any other jurisdiction. People in Nunavut are entitled to the same constitutionally guaranteed standard of quality of interpretation as anyone else in Canada. But the differences in context are relevant in assessing whether the failure to swear in the interpreter, alone, can serve as a basis for a finding that a breach of section 14 rights has been established.

[37] That said, as a matter of practice, given the strong language used in R. v. Tran about the importance of interpreters being sworn, it would be advisable for such a practice to be implemented for all proceedings where interpreters are used, especially if their services are used to assist witnesses, accused persons, or parties in non criminal proceedings.

[38] In conclusion, in the circumstances of this case, I find that Mr. Koaha has not established that the interpretation fell short of the standards guaranteed by section 14 of the Charter. As soon as he requested the assistance of an interpreter, that assistance was provided to him. He did not raise any issue about his ability to understand questions, or the proceedings generally, from that point on. The record of the proceedings shows that he answered a number of questions thoughtfully and coherently. The assertions in his Affidavit that “he thought he understood some of the questions” and tried to answer them, that “it seems now that he may have been guessing at some of the answers” and that “he may have not understood some of the questions”, are simply not sufficient, in the face of the record of the proceedings, to establish a breach of his section 14 rights on a balance of probabilities.

R. v. Potvin , 2004 CanLII 22752 (ON CA)

[32] If it were enough for the judge and prosecutor to understand French, without it being necessary for them to use it during the proceeding, there would be little difference between, on the one hand, the right to a unilingual trial in the official language of one's choice, and on the other, the right to the assistance of an interpreter already provided for in s. 14 of the Canadian Charter of Rights and Freedoms. The right to the assistance of an interpreter ensures that the accused will be able to understand his or her trial and make himself or herself understood, and that the trial will thus be fair: see R. v. Beaulac, at para. 41. However, as noted by the Supreme Court in Beaulac, at paras. 25 and 41, "language rights are . . . distinct from the principles of fundamental justice. . . . Language rights have a totally distinct origin and role. They are meant to protect official language minorities in this country and to insure the equality of status of French and English."

[33] The more limiting interpretation suggested by the respondent might indeed ensure that the accused was understood by the prosecutor, the judge and the jury in his or her original language, without the intermediary of translation; however, in the context of linguistic equality, it seems to the court just as important for the accused to be able to understand what the judge and prosecutor say in the original language used by them during the hearing. There is no question that the requirement for the judge and Crown prosecutor not only to understand French but to use it may give rise to inconvenience in certain situations, but that fact is not relevant.[…]

Mohammadian v. Canada (Minister of Citizenship and Immigration), [2001] 4 F.C.R. 85, 2001 FCA 191 (CanLII)

[5] The major issue raised on this appeal boils down to whether the test for waiver of the section 14 right to the assistance of an interpreter [before the Refugee Division] is that which was articulated in R. v. Tran, supra, or some other test. […]

[17] While these views were made in a criminal law context, I can see no reason why they should not be applied in the present case. It is well to remember that the Refugee Division is but a part of the largest administrative tribunal in Canada. Since its creation in 1989, the Refugee Division has seen its case load increase exponentially to the point where in 1999-2000 alone it was facing a fresh case load addition of some 31,000 refugee claims, a phenomenon apparently not limited to Canada. If the appellant's belated complaint about the quality of the interpretation is accepted, the important work of the Refugee Division in hearing and disposing of Convention refugee claims in a timely fashion would become rather more difficult. The Refugee Division is called upon yearly to dispose of an increasing volume of Convention refugee claims, a high percentage of which are of individuals whose native language is neither of Canada's official languages. It must surely be in the interests of the individual and of the public that refugee claims be processed as soon as is practicable. Neither the individual nor the public interest is served when the refugee determination process is unnecessarily delayed, provided acceptable safeguards are adhered to in order to prevent a breach of the section 14 right.

[18] As Pelletier J. observed, if the appellant's argument is correct a claimant experiencing difficulty with the quality of the interpretation at a hearing could do nothing throughout the entire hearing and yet be able to successfully attack the determination at some later date. Indeed, where a claimant choses to do nothing despite his or her concern with the quality of the interpretation, the Refugee Division would itself have no way of knowing that the interpretation was in any respect deficient. The claimant is always in the best position to know whether the interpretation is accurate and to make any concern with respect to accuracy known to the Refugee Division during the course of the hearing, unless there are exceptional circumstances for not doing so.

[19] As I have indicated, in light of his experience at the very first sitting of the Refugee Division the appellant appears to have been well aware of his right to the assistance of a qualified interpreter. When his conduct during the whole of the third sitting and for some time afterward is weighed with his undoubted knowledge of his right, it is difficult to construe that conduct as other than a clear indication that the quality of interpretation was satisfactory to him during the hearing itself. In my view, therefore, Pelletier J. did not err in determining that the appellant had waived his right under section 14 of the Charter by failing to object to the quality of the interpretation at the first opportunity during the hearing into his claim for refugee status.

R. v. Johal , 2001 BCCA 436 (CanLII)

[15] As with any breach of a Charter right, the onus is on the accused under s. 14 to establish, on a balance of probabilities, that his or her rights have been breached. In the case of s. 14, the first requirement which the accused must satisfy is that he or she was in need of interpretive assistance. It is this requirement which is at issue in this appeal.

[…]

[18] The court in Tran concluded that the question must always be "whether there is a possibility that the accused may not have understood a part of the proceedings by virtue of his or her difficulty with the language being used in court." (p. 250.) Further, the right to interpreter assistance should not be denied unless "there is 'cogent and compelling' evidence that an accused's request for an interpreter is not made in good faith, but rather from an oblique motive." (p. 245.) In this case, there is no suggestion that Mr. Johal's request was not made in good faith.

[19] Finally, in determining whether an accused's Charter rights under s. 14 have been breached, the court should not speculate as to whether the lack of, or lapse in, interpretation in a specific instance made any difference to the outcome of the case. In other words, it is not necessary for the accused to establish prejudice in order to establish a breach of his or her s. 14 rights. […]

[20] Bearing in mind the legal principles to which I have referred, I now turn to the circumstances giving rise to Mr. Johal's claim that his rights under s. 14 were breached during the course of the trial. In that regard, it is important to emphasize that the Crown is not alleging that Mr. Johal waived his right to an interpreter. Rather, the real issue on this appeal is whether Mr. Johal met the "need" requirement.

[…]

[28] I do not find it necessary or useful to review the numerous transcript references referred to by Mr. Johal's counsel. Suffice it to say that a reading of Mr. Johal's evidence as a whole indicates that he had some difficulty both in understanding the questions asked of him and in communicating his answers. While some of these difficulties may have stemmed from the manner in which the questions were framed, I do not find it useful to speculate in that regard. That is because the critical question is not whether the court, or counsel, could understand Mr. Johal, but whether Mr. Johal could both understand, and effectively respond to, the questions put to him during the course of his testimony.

[29] As earlier noted, the trial judge was alerted at the outset of the trial to the possibility that Mr. Johal might require interpreter assistance. In the passage quoted at para. 23 of these reasons, Mr. Johal clearly indicated that he needed the assistance of an interpreter, both to understand the questions asked of him and to ensure that he was able to accurately communicate his responses. There is no suggestion, or finding, that his request for assistance was motivated by any ulterior purpose, for example, to stall for time, or to enable him to fabricate a response.

[30] In my view, it is apparent from the concluding portion of the extract quoted at para. 25 of these reasons, that Mr. Johal's counsel dissuaded Mr. Johal from pursuing his request for assistance, apparently because counsel thought that Mr. Johal had done well without an interpreter to that point in the proceeding. With respect, once Mr. Johal offered a reasonable explanation for his request for an interpreter, and absent any suggestion of ulterior purpose, Mr. Johal's determination that he needed the assistance of an interpreter should have governed. It was for Mr. Johal to determine the nature and extent of his need for assistance, not for his counsel to do so. Although both counsel and the court indicated to Mr. Johal that he could pursue his request for assistance if he needed an interpreter in the future, I am satisfied that the clear signal to him was that both counsel and the court preferred that he proceed without interpreter assistance.

[31] In the result, I am satisfied that Mr. Johal clearly demonstrated and communicated his need for interpreter assistance and that he was effectively denied the assistance he sought, contrary to s. 14 of the Charter. I would, therefore, allow the appeal and order a new trial.

Cross v. Teasdale , 1998 CanLII 13063 (QC CA) [judgment available in French only]

[OUR TRANSLATION]

[37] I agree with the position of the Attorney General of Canada that s. 530.1 [of the Criminal Code] imposes, in a case such as the one before us, an obligation on the Attorney General of Quebec to choose a prosecutor who is capable of and amenable to conducting the proceedings in the official language of the accused. However, I do not agree with the appellants’ proposition that the right to a fair trial requires it. Section 14 of the Charter, which guarantees the right to the assistance of an interpreter where a party cannot follow the proceedings because he or she does not understand or speak the language used, provides for this, as Beetz J. wrote in Macdonald, on behalf of the majority of the Court, at pp. 499 and 500.

R. v. Simard, [1995] O.J. No. 3989, 27 O.R. (3d) 116 (ON CA) [hyperlink not available]

[38] I believe that in the present case, the information complied with the requirements of ss. 530, 530.1 and s. 841(3) of the Criminal Code which constitute a legislative advancement towards equality of status or use of the official languages. I have already mentioned that the language provisions of the Charter, especially s. 15 and ss. 16 to 22, are not applicable here. However, the language component of the legal guarantees entrenched in ss. 7 and 14 and s. 11(a) of the Charter constitute one aspect to the right to a fair trial. In the present case, have the language dimensions of these guarantees been respected by the oral interpretation of the information? There is nothing in the record which indicates that the appellant or his counsel had requested a written translation of the information, which undoubtedly would have been supplied by the prosecutor.

[45] Nothing less would suffice to ensure that the information which triggers the trial is understood. Before the advancement of the official languages to a status of equality, s. 14 was deemed to be adequate to guarantee a fair trial to an accused. The constitutional protection of s. 14 is now reinforced with respect to the translation of an information in the official language of the trial. The inconvenience and expense are minimal, since in any case, this document must be interpreted orally at the time of the arraignment. This conclusion is not incompatible or at variance with Rodrigue and Breton, supra, decisions which were not concerned with an originating process and where the written translation with respect to pre-trial disclosure of documentary evidence would have created a heavy burden.

R. v. Butcher , 1990 CanLII 2909 (QC CA) [judgment available in French only]

[OUR TRANSLATION]

[12] If the appellant has any reason to complain, it is on s. 14 of the Canadian Charter of Rights and Freedoms that he should rely. The provision it contains, which stems from the right to a “fair trial” (s. 11(d) of the Charter), reads as follows:

14. A party or witness in any proceedings who does not understand or speak the language in which the proceedings are conducted or who is deaf has the right to the assistance of an interpreter.

[13] “To have the right” means being able to demand “to be entitled to receive”. In my opinion, this phrase cannot be given any meaning other than the one that logically follows from how Parliament chose to put its thoughts into words. In my view, if Parliament had wanted to give these words a broader scope and make the presence of an interpreter an absolute requirement in all circumstances where a party to a trial does not understand the language used, it would have used much more imperative language, such as “must be assisted by an interpreter”.

[14] Where a piece of legislation grants a right, it confers upon its beneficiary the option to exercise it, or not, as he or she sees fit. The beneficiary may even be presumed to have waived this right through his or her conduct or attitude.

[15] Given that the rule in s. 14 of the Charter is intimately linked to the concept of a fair trial and that the presiding judge must take the steps required to ensure a trial’s fairness, I am of the opinion that, in a situation where it is clear or eminently likely that the party involved does not understand the language used, the judge has a duty to either order proprio motu that an interpreter assist the party in understanding what is being said or at least draw the party’s attention to his or her right to demand an interpreter.

[…]

[17] I therefore conclude that, from this point forward, apart from this specific situation where it appears that the accused clearly does not understand the language used, it is up to the accused to take the initiative to alert the Court to this fact and demand assistance. If the accused does not do so, he or she must be considered to have elected not to exercise this right or, where appropriate, to have waived this right.

[…]

[22] In the case before us, the evidence discloses the following:

— although all the conversations between him and his counsel were in English, the appellant never told him, in any circumstances, that he did not understand French, nor did he instruct him to speak only in English during the trial;

— at no time did he reveal to the judge his total ignorance of the language;

— on successive occasions where French was used, he never spoke up to raise any protest whatsoever or to request that what was being said be translated for him;

— it was counsel for the appellant who started speaking French at the trial. In the absence of any objection from him, the judge had every reason to assume that his client understood what he was saying;

— the appellant cannot claim that this use of a language that is foreign to him caused him prejudice on this occasion, since the objection made by his counsel was allowed by the judge and he was allowed to explain an event prior to the one that was the subject of the charge;

— immediately after the judgment and sentence were delivered, the appellant did not in any way raise the argument that he relies on today, as his counsel attests (examination on affidavit, A.F., p. 74): […]

[25] Before concluding, I will make the following brief comment. In Quebec, where this trial was heard, and particularly in such a cosmopolitan city as its biggest urban centre, Montréal, at a time when it is a matter of judicial notice that bilingualism is becoming more widespread, a judge cannot be required to rely solely on how a family name sounds and rule that the person bearing that name understands only one language. Just because someone is named Johnson or Ryan does not mean that he or she is necessarily a unilingual Anglophone (contemporary history dictates the contrary), just as the name “Butcher” could also be a corruption of “Boucher”. Section 14 of the Charter should not be conceived as applying in abstracto, without regard for the prevailing reality in the community where it must be used.

[26] In the circumstances of the case before us, I therefore find that, through his attitude and his actions, the appellant demonstrated at least that he did not intend to exercise the right to which he was entitled and that he cannot now, after the fact, rely on his abstention to obtain the remedy he seeks. I would therefore dismiss his appeal.

Reference re French Language Rights of Accused in Saskatchewan Criminal Proceedings , 1987 CanLII 204 (SK CA)

[37] In the interests of clarity, it might also be noted that it is incumbent upon the government, not by reason of s. 110 [of the Northwest Territories Act], but by virtue of the accused's right to a fair hearing, to ensure that he understands what is going on in court and is understood by all those whose understanding of him is essential to a fair hearing. This may be accomplished by such means of translation from French to English, and if need be from English to French, as are accurate and effective. It should not be thought, however, that the right to a fair hearing enjoyed by an accused, who, pursuant to s. 110, opts to use French, is any more extensive than is the right of an accused whose language, let us say, is Ukrainian; the scope of the right to a fair hearing, and the duty it imposes upon the state are the same for all accused, whatever their language.

Roy v. Hackett (Ont. C.A.), 1987 CanLII 4212 (ON CA)

[34] In my view, the opposing party has the right to challenge the basis for a request for the assistance of an interpreter by means of cross-examination. I am, however, of the opinion that such a cross-examination should take place at the time of the objection. At that time, in the context of a voir dire, the party who raised the objection can call witnesses to testify as to the linguistic competence of the subject without violating the rule of evidence which prohibits contradiction of answers by the person being cross-examined on collateral issues. The advantage of the voir dire is that it takes place outside the main proceedings. If the judge decides to allow a witness -- or the party who requests it -- the assistance of an interpreter, the decision is final, at least at trial, and a party who objected cannot then raise the issue of competence in order to attack the credibility of the party who made the request in the first place: see R. v. Burke (1858), 8 Cox C.C. 44 (C.C.A.) at p. 55.

[35] In the case before us, where all the proceedings, including the testimony of the respondent, were conducted in French with the exception of the anglophone witness, it cannot be argued that the request for the assistance of an interpreter was made so that the witness would have the advantage of thinking about his answers while the interpreter was translating -- unnecessarily -- the question, or with the intention of ruining the cross-examination or making it more difficult.

[36] In general, the judge or the chairman of the tribunal must come to a decision regarding the good faith of the witness or the person who has requested an interpreter before granting the request. In coming to his decision, however, he must take into account the legitimate desire of any witness to express himself in the language he knows best, usually his mother tongue. Therefore, he must avoid imputing an ulterior motive to a witness who asks for an interpreter, even if the witness has some familiarity with the language used and could, in a general way, understand the proceedings. The judge must certainly give s. 14 a broad and generous interpretation. That does not mean that the right to an interpreter is an absolute right and that cross-examination as to the linguistic competence of the person who requested such assistance is automatically oppressive and vexatious to the point of making the exercise of that right illusory.

[37] In this case, before the arbitration board, the right to an interpreter was recognized and granted without objection by the opposing party and without prior examination by the board. There was no refusal as in R. v. Sadjade (1983), 1 D.L.R. (4th) 384n, 7 C.C.C. (3d) 95n, [1983] 2 S.C.R. 361n (S.C.C.), and R. v. Reale, supra. The question of competence should have been raised at the point when an interpreter was requested. The cross-examination could not, at that stage in the proceedings, have been deemed oppressive and vexatious: the questions asked subsequently dealt with the experience of Yvon Roy who apparently worked in Winnipeg for 14 months as an operator responsible for anglophone employees and on his ability to write technical and administrative documents in the English language. But, in fact, the cross-examination did not take place until a few months later. Mr. Richard for the respondent claims that the subsequent cross-examination represents an indirect restriction of the right guaranteed by the Charter and makes it illusory. The consequence of that would be, in his view, to "freeze" or to "paralyze" the exercise of the guaranteed right ("chilling effect").

R. v. Thim , 2015 BCSC 1677 (CanLII)

[10] Other Charter rights are relevant to defining and applying s. 14, including: s. 7 (life, liberty, and security of the person), s. 15 (equality), and s. 27 (multicultural heritage) (p. 967). With respect to s. 27, preserving and enhancing Canada's multicultural society depends on linguistic minorities having real and substantive access to justice (pp. 966-967). Section 14 must be interpreted purposively and applied in a principled manner to give effect to this constitutional guarantee (p. 977).

[11] Establishing a violation of s. 14 requires proof of three elements (pp. 979-980): (a) an accused required interpreter assistance; (b) the interpretation provided to the accused fell below the constitutionally-protected standard; and (c) the alleged lapse in interpretation occurred in the course of the proceedings when a vital interest of the accused was involved. The onus of proof is on the party asserting the violation. The standard of proof is a balance of probabilities. If the first three elements are satisfied, the onus then shifts to the Crown to prove, on a balance of probabilities, that there was a valid and effective waiver of the right (p. 980).

[12] With respect to the first element, establishing need will not normally be an onerous step (p. 979). Judges have an independent responsibility to ensure that those who are not conversant in the language being used in court understand the proceedings (p. 979). The right to interpreter assistance is not automatic or absolute but, given the elevation of the right to the level of a constitutional norm, courts should be generous and open-minded when assessing an accused's need, and approach the question with a spirit of sensitivity and understanding (pp. 980 and 983).

[13] With respect to the second element, assuming the case is not a complete denial of an interpreter, the constitutionally-guaranteed standard of interpretation is one of continuity, precision, impartiality, competency, and contemporaneity. The standard is high, but not one of perfection (p. 979). These criteria are aimed at helping ensure that persons needing interpreter assistance have the same opportunity to understand and be understood as if they were conversant in the language of the court (p. 985).

[14] With respect to the third element, s. 14 extends to every essential aspect of the proceedings (p. 992). The right to interpreter assistance applies at any part of the proceedings that bears on the procedural or substantive rights of the parties (p. 994). However, s. 14 will not extend to purely administrative or logistical aspects which could have no prejudicial effect on the proceedings (p. 993).

[15] Interpreters must be sworn by taking the interpreter's oath before beginning to interpret the proceedings, a safeguard meant to help ensure competence: Tran, p. 988; R. v. Nguyen, 2005 BCCA 221 (CanLII) at para. 18; R. v. Titchener, 2013 BCCA 64 (CanLII) at para. 25. And, where there is a legitimate reason to doubt the competency of an interpreter, the court ought to conduct an inquiry into the interpreter's qualifications (Tran, p. 988).

[…]

[19] In summary, the right of an accused to the assistance of an interpreter is a deeply and firmly embedded fundamental right. It is required for a fair trial. It protects the dignity of the accused and the legitimacy of the criminal justice system. It plays an important role in preserving and enhancing Canada's claim to be a multicultural society. The interpretation provided to the accused need not be perfect, but it must be of high quality.

[…]

[62] I find that there is an ongoing denial of the accused's s. 14 Charter right, as contrasted with events that lie entirely in the past. When the Crown's application for an adjournment was refused, the trial was to go on. There was no interpreter present. The accused could not be arraigned. This constitutes an ongoing s. 14 infringement. Moreover, with the history of this case in mind, if the case was further adjourned, I think it more likely than not that there would be further infringements of the accused's s. 14 right.

[63] I also find it probable that the infringements are systemic. The accused submits, and the Crown concedes, that the series of failures in this case are likely a function of a systemic shortcoming. I cannot and need not put a finer point on this finding. I do not have a body of evidence that allows me to determine the precise cause of the repeated failures to provide proper interpreter services to this accused — for example, whether it is a question of budget insufficiency, a policy shortcoming, personnel acquisition or training issues, or a combination thereof. I need not say more. It is sufficient for the purposes of deciding this application that the Court is able to conclude that the s. 14 infringements are ongoing and systemic.

[64] The important purposes served by the s. 14 right were enumerated in Tran at page 977:

1. First and foremost, the right ensures that accused hears the case against him and is given a full opportunity to answer it.

2. The right is intimately connected to our basic notions of justice, including the appearance of fairness, and thereby touches on the very integrity of the administration of justice.

3. The right is intimately related to our society's claim to be multicultural, expressed in part through s. 27 of the Charter.

[65] It is readily apparent to any observer that the administration of this case has been anything but orderly. But there is another message that most observers must be receiving loudly and clearly: the courts have not taken seriously the constitutional requirement to provide the accused with the assistance of an interpreter. It is surely important for this Court at this time to dissociate itself in an effective way from this pernicious perception. (In so stating my opinion, I acknowledge that the relatively rare person that is conversant with the division of powers in the Constitution Act, 1867, might receive the more nuanced message that representatives of the Attorney General of British Columbia — as contrasted with the presiding judges — have not taken this constitutional requirement seriously.)

R. v. Odones , 2012 QCCS 7080 (CanLII)

[45] The Court holds that R. v. Tran, supra, does not extend the ordinary meaning of the term "proceedings" to police interrogations. The criteria outlined in Tran to ensure compliance with section 14 of the Charter are restricted to trials or judicial proceedings.

[46] Police interrogations have no judicial component; the interrogation of the accused Odones is no exception.

[47] Accepting the accused's argument that a police interrogation of a suspect is a "proceeding", thereby triggering the application of section 14, would have far-reaching consequences beyond an interview room at a police station.

[48] Imagine the situation where the police, on the street, speak to a suspect or to an individual who later becomes a suspect; or a situation where the police arrest a suspect and have a conversation in the police vehicle. Would this interaction constitute a "proceeding" pursuant to section 14? Should any discussion be put on hold particularly in exigent circumstances? Should the Tran criteria apply if an interpreter attended?

[49] The Court is of the view that the administration of justice would be better served if - in these situations where language issues arise and an interpreter is called - the interpreter assists and translates, when required or requested. The confidence of the public in the administration of criminal justice would be maintained if the weight of any statements by an accused in such situations were to be assessed by the trier of fact.

[50] The protection of the public is better maintained without strapping cumbersome procedures designed for courtrooms onto discussions taking place on the front line, on the street, in circumstances where an individual’s rights are already protected by a multitude of constitutional guarantees.

[51] A review of the jurisprudence referred to and a plain reading of section 14 makes it clear that this section applies to proceedings with a judicial component. In that context, the right to an interpreter in any "proceedings" and the Tran rules, exist to ensure that the accused understands what is going on in court and to be understood in court; see MacDonald v. City of Montreal, 1986 CanLII 65 (SCC), [1986] 1 S.C.R. 460, pp. 499-500.

[…]

[53] The Court is of the opinion that an interview between a suspect and a police detective, whether on the street, in a police vehicle or at a police station, is not a "proceeding" and does not fall within the purview of section 14.

R. v. Dutt , 2011 ONSC 3329 (CanLII)

[52] It is well known that court interpretation between source and target languages is seldom, if ever, perfect. That is for many reasons including the inherent difficulties of language transference and the ever present prospect of natural human error in understanding and concentration. Accordingly, a non-speaker of one of Canada’s official languages is generally at some disadvantage respecting linguistic understanding, more or less, when participating in a legal proceeding, even with competent interpretation as required by s. 14 of the Canadian Charter of Rights and Freedoms.

[53] It is therefore fundamentally crucial in seeking to avoid risking a miscarriage of justice that the courts not compound any existing disadvantage by working with a process other than fully qualified court interpreters who are competent, rested and have no distractions while working.

[54] Our courts understand that the s.14 Charter right guaranteeing competent interpretation to a defendant in criminal proceedings does not in and of itself demand the use of a certified or accredited interpreter: R. v. Rybak (2008), 2008 ONCA 354 (CanLII), 233 C.C.C. (3d) 58 (Ont. C.A.), at para. 84 (leave to appeal refused, [2008] S.C.C.A. No. 311 (QL)); R. v. R.(A.L.) (1999), 1999 CanLII 5081 (MB CA), 141 C.C.C. (3d) 151 (Man. C.A.), at p. 156 (rev’d on a different basis, [2001] 11 W.W.R. 413 (S.C.C.)). Accordingly, the words ‘qualified’ or ‘competent’ are not necessarily co-extensive with the terminology ‘certified’ or ‘accredited’. That said, because the courtroom is not a linguistics laboratory and a unilingual trial judge is not qualified to administer language or interpretation skills tests, and without simply ceding to an interpreter’s self-promoted claim of competence there necessarily is a dependency upon some objectively balanced standard of competence. Understandably, the default position of the court is often, therefore, significant though not exclusive reliance on what it hopes is a reputable external accreditation of an interpreter.

[55] As a general rule, a trial court will conduct a qualification voir dire relating to the expertise of any court interpreter presented by the Ministry of the Attorney General even where that person is represented to be certified or accredited. The Ministry’s Criminal Law Division, in its quasi-judicial role prosecuting criminal cases, recognizes the importance of this procedural step – the Division’s April 23, 2010 Practice Memorandum No. 1, “Competency and Accreditation of Court Interpreters”, states in part:

...in all proceedings where an interpreter is required, Crown counsel should raise with the presiding judicial officer whether that judicial officer deems it necessary for the court to conduct an inquiry to determine if an interpreter is competent to interpret for the proceeding at bar, regardless of whether or not the interpreter has been accredited.

[56] The court looks to the nature of the accreditation and in particular whether it is founded upon objectively valid testing of language and interpreting skills. As well, the court considers the experience of the interpreter having regard to such factors as the mode(s) of interpretation required, the expected duration of the proceeding, the technical nature of the subject matter, any issues of language dialect and, in some cases, the certification test results of the interpreter. On the latter point, and by way of example, a court may exercise its discretion to proceed by way of consecutive interpretation where, on the VCC [Vancouver Community College] testing, the fully accredited interpreter scored only 71% on the simultaneous interpreting mode of the VCC test.

[57] In addition, beyond the issue of the Ministry label of ‘fully accredited’ interpreter, potentially involving an individual who may have failed to secure anywhere up to 30% of the available scoring on each of the three modes of interpreting, the evidence in this voir dire reveals that there are other matters a court needs to consider.

[…]

[114] Failure to provide two fully qualified Hindi/English speaking court interpreters, an interpreter late for court, hallway negotiations about an interpreter’s compensation, and the court and the parties provided incomplete information on aspects of the inquiries into interpreter competency, have all impacted upon timely completion of this trial. We can surely do much better 29 years after the s.14 Charter right came into existence and 17 years after the Tran case was decided.

[115] While the complexity and challenges for government in complying with s. 14 of the Charter should not be underestimated, it is evident that the Province’s transition to a world-class court interpreting system will be lengthy in duration and fraught with debate as to the objective validity of certain approaches being taken to accreditation under “the new model”.

[116] Systemic diminishment of criminal defendants’ linguistic understanding in trial proceedings cannot be tolerated in a civilized democracy. Everyone who understands the s. 14 Charter right believes it essential that non-English speaking defendants in criminal trials not be relegated to the status of constitutional disposables where the interpreting assistance they receive is limited to whatever quality is available as opposed to compliance with the minimum standards which the Charter requires.

McCullock Finney v. Canada (Attorney General), 2009 QCCS 4646 (CanLII)

[88] In Société des Acadiens du Nouveau-Brunswick (cited supra), the Supreme Court of Canada clearly indicated that a litigant had the right to have a civil trial before a judge who is capable of understanding submissions in either one of the official languages of Canada. This right was qualified as a fundamental right by opposition to a language right. But here, the situation is different: only the cost of translation or interpreter services is at issue, not the question of whether these services should be available to the Plaintiff. They are, and no one disputes this fact.

[89] Access to justice is one thing. The question of the costs involved to have access to the judicial system is another question. In a non-criminal or penal situation, there is no legal principle or rule which could allow this Court to impose upon either level of government the obligation to assume the costs of translation or interpreter services as a general principle.

[90] This situation is not unique to the province of Quebec. In Marshall v. Gorge Vale Golf Club it was held that the British Columbia Supreme Court had no power to order the provincial government to provide free transcription services to a deaf litigant in a civil matter. The right to an interpreter under section 14 of the Canadian Charter of Rights and Freedoms did not create an obligation of the Crown to pay for the services of an interpreter. […]

R. v. Sidhu , 2005 CanLII 42491 (ON SC)

[277] Fundamental fairness and equal access to the courts for linguistic minorities demands purposeful interpretation of the s.14 Charter right. “The right to a fair trial is universal and cannot be greater for members of official languages than for persons speaking other languages”: The Queen v. Beaulac (1999), 1999 CanLII 684 (SCC), 134 C.C.C. (3d) 481 (S.C.C.), at para. 41. While “the right to interpreter assistance is to create a level and fair playing field, not to provide some individuals with more rights than others”, a “multicultural society can only be preserved and fostered if those who speak languages other than English and French are given” full access to the justice system: The Queen v. Tran, supra, at pp. 239-41.

[278] Complementing the s. 14 Charter right is the constitutional mandate to provide more than mere lip service to s.27 of the Charter “which mandates that the Charter be interpreted in a manner consistent with the preservation and enhancement of the multicultural heritage of Canadians”: The Queen v. Tran, supra, at pp. 239-40. In the United States, it has been observed that: “Particularly inappropriate in this nation where many languages are spoken is a callousness to the crippling language handicap of a newcomer to its shores”: United States v. Si, supra, at p. 1042; United States v. Negron, supra, at p. 390.

[279] Implicated in the constitutional guarantee of the assistance of an interpreter are a number of significant factors inherent in real and substantive access to justice:

(1) Denial of interpreter assistance constructively denies the defendant’s constitutional, statutory and common law right to be present in every respect at his or her trial and to understand and answer the case to meet and to comprehend all proceedings which affect his or her vital interests:

…the accused, by reason of being deprived of the assistance of the interpreter, was not present for that part of the proceedings… We are of the view he was no more present than if he were unconscious as the result of a heart attack or stroke, and was effectively denied any meaningful presence as if he had been physically removed from the courtroom during that part of the proceedings.

(R. v. Petrovic (1984), 1984 CanLII 2003 (ON CA), 13 C.C.C. (3d) 416 (Ont. C.A.), at p. 424)

See also: The Queen v. Tran, supra, at pp. 229-30, 236, 239-40.

(2) For a hearing to be fair, a party who does not understand the language of the proceeding must himself or herself be understood: Tran v. The Queen, supra, at p. 229.

(3) Exclusion of the accused in whole or in part from a criminal proceeding on account of non-compliance with the full protection of s.14 of the Charter compromises the appearance of fairness of the proceedings leaving the accused with a justifiable sense of injustice and diminishing respect for the administration of justice: The Queen v. Tran, supra, at pp. 236-7, 240.

(4) An accused, denied the assistance of the standard of interpretation necessary for a fair trial, “can scarcely be said to stand on the same footing or in an equal position with respect to the application of the criminal law as others who are subject to its process”: R. v. Reale (1974), 1973 CanLII 55 (ON CA), 13 C.C.C. (2d) 345 (Ont. C.A.), at pp. 348-9 (aff’d (1974), 1974 CanLII 23 (SCC), 22 C.C.C. (2d) 571 (S.C.C.), at pp. 572-3).

(5) Denial of competent assistance of an interpreter affects “the integrity of the fact-finding process, and the potency of the adversary system”: United States v. Negron, supra, at p. 389.

(6) Interpreter assistance provides a defendant “sufficient presentability to consult with his [or her] lawyer with a reasonable degree of rational understanding”: United States v. Cirrincione, 780 F.2d 620, 633 (7^th Cir. 1985); United States v. Johnson, 248 F.3d 655, 661 (7^th Cir. 2001); The Queen v. Tran, supra, at p. 261.

(7) Section 14 Charter adherence gives the ability to “testify in a responsive manner go[ing] to the very “fairness” of the trial”: R. v. Cheba, [1993] S.J. No. 17 (QL) (C.A.), at para. 3.

(c) The Constitutionally Guaranteed Standard of Court Interpretation

[280] Section 14 of the Charter “guarantees the right to interpreter assistance without qualification”: The Queen v. Tran, supra, at p.254. The constitution does not itself describe the constitutionally guaranteed minimal standard of interpretation assistance from an interpreter. “[B]asic fairness” requires that the objective be linguistic understanding of the proceedings. The level of understanding will “necessarily be high” and, as noted in Tran at p. 240, should strive to provide the beneficiary of the assistance the degree of comprehension he or she would enjoy if able to understand and communicate in one of the country’s official languages.

[281] The “basic” standard requires that the interpretation include an acceptable level of continuity, precision, impartiality, competency and contemporaneousness – a significant “deficiency” or material departure in any of these features in the course of proceedings advancing the case or affecting “a vital interest” of the accused, without any need for prejudice assessment, threatens violation of the s. 14 Charter right: The Queen v. Tran, supra, at pp. 242, 253-4.

[282] The “Tran” criteria may be summarized as follows:

(1) Continuous interpretation contemplates that gaps or breaks “are not to be encouraged or allowed” (pp. 246-7).

(2) Precision requires “the interpretation must be, as close as can be, word-for-word and idea-for-idea” not simply summaries. Recognizing that language interpretation is an “inherently human behaviour” and that, on occasion, there exist language-to-language impediments to exact transference of meaning, the interpreter must nevertheless strive for precision. Summaries or distillations are not acceptable (pp. 247-8, 259).

(3) Impartial interpretation requires “that interpretation, particularly in a criminal context, should be objective and unbiased” (p. 248).

(4) There is “a right to competent interpretation” although there exist “no universally acceptable standards for assessing competency”. Swearing of the interpreter’s oath and judicial inquiry into interpreter qualifications facilitate this aspect of the s.14 Charter right (pp. 248-9).

(5) Contemporaneous interpretation is essential. “[A]lthough consecutive interpretation effectively doubles the time necessary to complete the proceedings, it offers a number of advantages over simultaneous interpretation” (pp. 249-50).

[…]

[291] The ultimate issue is whether deficits in the assistance of a qualified interpreter “made the trial fundamentally unfair”: United States v. Bell, supra, at p. 463; United States v. Sanchez, 928 F.2d 1450, 1455 (6^th Cir. 1991); United States v. Tapia, 631 F.2d 1207, 1210 (5^th Cir. 1980).

[…]

[298] There is no constitutional right to an accredited interpreter – there is however a right to a competent interpreter. Accordingly, the essential issue is not whether the court interpreter has been “formally trained” but whether the interpreter is “qualified” to proficiently discharge the duties of providing continuous, precise, impartial, competent and contemporaneous interpretation: R. v. R.(A.L.), supra, at pp. 155-6. Where the court is presented with an accredited interpreter, the interpreter is presumptively qualified having met the objectively set external standards of a presumptively valid certification process.

[…]

[309] David J. Heller in his article “Language Bias In The Criminal Justice System”, supra, at pp. 368-9, 376, 380-2, makes these points primarily respecting the Ontario courts:

(1) There is minimal testing and effectively an absence of training requirements for accredited interpreters. There exists a need for more and specialized interpreter training. Budget cuts have impacted on training – “Most interpreters reported that, for the most part, they learned their profession ‘on the job’”.

(2) Most counsel act under the belief that court-provided interpreters are competent.

(3) There exists no systemic testing of the competency of court-room interpretation.

(4) The Ontario interpreter accreditation test, undefined by legislative standards, is a short and simplistic test.

(5) Sometimes the Ontario Ministry of the Attorney General uses unaccredited interpreters – “There is a wide variation in competency of interpreters”.

(6) The “courts have no systematic means of recognizing poor interpretation”.

[…]

[333] There can be no doubt that there are dedicated and highly competent court interpreters in Peel and elsewhere in the Province of Ontario. Unfortunately, with diminished confidence in the accreditation process, and the now-documented widespread and undisclosed use of unaccredited court interpreters in this jurisdiction, it has become difficult to determine who these professionals are.

[334] The reckless indifference of the Court Services Division to the s.14 Charter right led to the Sidhu mistrial. It is statistically inevitable that there exist as yet undiscovered miscarriages of justice.

[335] Turning to procedural conclusions flowing from the record in this appeal:

[…]

(10) On occasion, the s.14 Charter right can only be honoured with the services of two court interpreters (paras. 264, 266-267, supra).

(11) A self-represented litigant cannot waive the protection of s.14 of the Charter. A defendant, represented by counsel, may expressly waive the right. The court maintains an overriding discretion to reject the waiver (paras. 349-359, infra).

[…]

[352] The s.14 Charter right cannot be waived by a self-represented accused; where represented by counsel, waiver is possible where counsel “expresses a wish to dispense with the service and the judge is of the opinion that the accused substantially understands the nature of the evidence which is going to be given against him or her” (emphasis of original): The Queen v. Tran, supra, at p.230.

[353] The threshold for waiver of the s.14 Charter right “will be very high” with judicial inquiry, interpreted for the accused, including these features to ensure the accused “personally understood the scope of his [or her] right to interpreter assistance and what he [or she] was giving up”:

(1) full knowledge of the rights the interpreter assistance guarantee was enacted to protect

(2) the effect or consequences waiver would have on those rights

(3) clear and unequivocal waiver personally by the accused.

(The Queen v. Tran, supra, at pp. 255-6, 263). The court maintains a discretion at all times to reject a waiver even when the constituent elements of a valid waiver are present.

[354] The threshold for waiver for the s.14 Charter right “is very high” and “cannot be waived by the defendant’s counsel” alone: R. v. Johal, supra, at para. 26; United States v. Osuna, 189 F.3d 1289, 1294 (10^th Cir. 1999); United States v. Tapia, supra, at p. 1209. The court itself has a duty to ensure “injustice is not done” by an accused purporting to give up the full protection of s.14 of the Charter simply to save time, to avoid inconvenience or where he or she is “careless in exercising” the right: The Queen v. Tran, supra, at p. 231.

[355] While it is expected that defence counsel, as an officer of the court, will adequately address with his or her client the need for an interpreter, the constitutionally minimum standard of interpretation to be afforded, and the necessity to speak up if that standard is not attained, there is no mandatory requirement for the court to itself instruct an accused respecting such matters:

(The Queen v. Tran, supra, at p. 243)

[356] Gross instances of interpreter summaries, confusion and hesitation are easily identified. Subtle deficiencies, missing words and inaccurate interpretations, even few in number passing under the radar screen, risk wrongful conviction. One must be cautious before asserting that an interpreter-assisted defendant ought to have detected and complained about an interpreter skills deficiency. Where the defendant is a non-English speaker, he or she is unable to determine whether the words interpreted into his or her mother language are a true reflection of what the English speakers in the courtroom are saying. Seemingly rough or puzzling interpretations in the defendant’s own language may, at times, be perceived as simply naturally occurring difficulties in language transference not error or performance deficits. Where a witness’ testimony is a third language, not English or the accused’s own language, again, the defendant has no reference point for evaluating the quality of the interpretation.

[357] Experience shows that in Brampton with English/Punjabi-speaking lawyers, and in many, many reported American cases with English/Spanish-speaking counsel, it is the bilingual counsel, not the accused, who frequently discovers the interpretation deficiencies.

[358] A non-English speaker may well have experienced language difference as “a source of division” eliciting “a response from others” including “distance and alienation…[r]eactions…all too often result[ing] from…racial hostility”: Hernandez v. New York, 500 U.S. 352, 371 (1991). An accused with this experience, feeling ever so fortunate to have a support-like person in the courtroom speaking his or her language at whatever level, will often be reticent to challenge the court system to assert personal language rights.

[359] The Crown bears the burden of establishing “a valid and effective waiver of the right which accounts for the lapse in (or lack of) interpretation shown to have occurred”: The Queen v. Tran, supra, at p. 242.

R. v. Ansary , 2001 BCSC 1333 (CanLII)

[…]

[70] The role of the police in the investigative stage of a criminal proceeding is of course entirely different from that of the court in judicial proceedings and to that extent, s. 14 Charter issues will only be engaged if statements or actions by an accused are later sought to be introduced in criminal proceedings. It follows that the responsibility of the police to determine the ability of a witness or an accused to understand the language of investigation must be assessed having regard for the fact that a determination of guilt or innocence is not yet at stake.

[71] It seems to me that the purposive and liberal interpretation of s. 14 mandated by Tran, supra, requires consideration of the stage of the investigation during which communication difficulties arise. In my view, as the jeopardy faced by an individual increases, the duty of the police to ensure that communications are understood will also increase if it is intended that conscriptive evidence will be adduced at trial.

[…]

[81] In this case, in addition to the unfairness which arises from the accused not having been given the opportunity to give a full explanation with the benefit of an interpreter, there is also the fact that in many respects the taped conversations are virtually unintelligible due to Mr. Ansary's language difficulties.

[82] The result is that the police officer's interpretation of what they believed Mr. Ansary said to them when they reframed his responses becomes the more intelligible statement. At issue, however, remains the question of whether the officers did fully understand Mr. Ansary and properly reformulated. If the tapes were to be admitted into evidence, rather than being engaged in a search for the truth, the jury would almost inevitably be drawn into a determination of whether Mr. Ansary truly understood the questions, whether the police truly understood his answers, and whether Mr. Ansary really "needed" an interpreter.

[83] That is precisely the type of inquiry that a judge should not undertake in determining whether an accused "needs" an interpreter at trial under s. 14 of the Charter: See Tran, supra, and Johal, supra. It would be anomalous if the jury as the finder of fact in this case were invited to embark upon that inquiry in circumstances where I have determined that the accused is in need of and entitled to the assistance of an interpreter at trial. At best, the jury would be diverted from its task and, at worst, the accused would be severely prejudiced by his linguistic difficulties.

[84] I am also satisfied that the admission of any gestures made by Mr. Ansary before the Justice of the Peace would constitute a breach not only of his s. 7 Charter rights but also of his s. 14 entitlement to the assistance of an interpreter in judicial proceedings. In R. v. Huy Duc Tran, [1999] B.C.J. No. 2208, 1999 BCCA 535 (CanLII), Finch J.A. (as he then was) determined that a proceeding before a Justice of the Peace is a judicial proceeding. As such, s. 14 of the Charter is directly applicable and Mr. Ansary's requests for an interpreter should have been addressed by the police or the Justice of the Peace. The evidence cannot be saved by s. 24(2) since its admission would detrimentally impact upon the fairness of the trial and the repute of the administration of justice.

Wyllie v. Wyllie , 1987 CanLII 2877 (BC SC)

[3] Pre-Charter decisions suggest that in civil proceedings it is not appropriate that such an order be made: see Hartley et al. v. Fuld et al., [1965] 1 W.L.R. 1336; Brochu v. Tanguay (1982), 1982 CanLII 2344 (SK QB), 20 Sask. R. 119, 29 R.F.L. (2d) 462. Section 14 refers to a party in any proceeding. It is not possible to interpret those words so as to confine the application of the section to criminal proceedings; indeed, the words “party” and “proceeding” indicate an intention that it be applied in civil proceedings. However, no case was cited wherein it has been so applied.

[4] Section 14 is not a clear and unambiguous declaration that, under the proper circumstances, a litigant in a civil proceeding has the right to an order compelling the Crown to pay the interpreter’s fee. A possible interpretation is that it merely codifies the right of a deaf person to have an interpreter assist him at trial, a right which it appears inconceivable that any court would have ever denied. See Re Roy et al. and Hackett et al. (1985), 31 A.C.W.S. (2d) 279, wherein this is the approach taken.

[…]

[8] The question then posed is, has the enactment of the Charter and specifically s. 14 created a right to a civil litigant to have his or her interpreter’s fees paid by the Crown?

[9] I am of the view that under s. 14 of the Charter, a litigant in a civil proceeding “has the right to the assistance of an interpreter”. I am of the further view that the initial responsibility of the litigant requiring the services of an interpreter is to pay that interpreter’s fee, and I therefore decline the order sought by the plaintiff.

[10] The question that remains unanswered is, is there an obligation upon the court or the Crown in civil proceedings to pay an interpreter’s fee upon the court being satisfied that the litigant requiring an interpreter is unable to pay the necessary fee? The wording of s. 14 is bold and unequivocal and it might well be that upon the basis of impecuniosity that a court would so order.

Labrie v. Machineries Kraft du Québec inc., [1983] J.Q. no 464, [1984] C.S. 263 (QC SC) [hyperlink not available] [judgment available in French only]

[OUR TRANSLATION]

[112] As this section [s. 14 of the Canadian Charter of Rights and Freedoms] applies to all proceedings, including civil proceedings, the Court acquiesced to the party’s request.

[113] However, who should have to bear the costs of the interpreter: the losing party or the party that requested the interpreter’s services, in this case, the plaintiff?

[114] Section 14 of Canadian Charter of Rights and Freedoms makes no provision for the costs.

[…]

[130] In this case, the defendant had the right to speak English, in accordance with s. 133 of the Constitution Act, 1867. The plaintiff had the right to understand his testimony, in accordance with s. 14 of the Canadian Charter of Rights and Freedoms. Counsel for the plaintiff therefore had to ask the question in French so that the plaintiff could understand. The role of the interpreter was essential to translate the question into English for the witness, who had the right to understand the question before answering it. The translation of his answer, given in English, then had to be translated to take into account the plaintiff’s right. The interpreter therefore played an essential role at each step.

[131] Article 305 C.P. [Quebec Code of Civil Procedure] does not make a distinction in terms of the language in which the interpreter’s costs are requested. There is therefore no reason to limit it to cases where the language is not one of the official languages of the Court.

[132] But that is not all. There are two equal constitutional rights at play here: that of the plaintiff and that of the defence witness. There can be no other choice: the costs of the interpreter are awarded in the cause.

[133] It is up to the judge in each case to decide whether an interpreter is needed, as the Court of Appeal established in Ferncraft, cited above. Awarding costs in the cause should prevent possible abuses, since each party, never being sure of the outcome of the proceeding, has an interest in minimizing the costs of a case.

[134] This judgment should not be interpreted as being specific to Quebec because of art. 305 C.P. Absent specific legislation or a government directive declaring that the costs shall be borne by the state, the presence of two equal constitutional language rights can only result in the costs of the interpreter being awarded in the cause.

R. v. Ashini , 2015 CanLII 3045 (NL PC)

[182] She [counsel for the accused] also referred to the fact, and fact it is, that the court is often unable to provide an Aboriginal interpreter for in-custody court proceeding. This leads to delays in the conduct of in-custody proceedings. I note that this circumstance is particularly true concerning Innu-aimun interpreters. The court is often unable to provide an Innu-aimun interpreter at all and quite often is unable to provide an interpreter at all familiar with the Mushuau Innu dialect of Natuashish when the accused comes from that community. The attendance of an interpreter, of course, does not necessarily guarantee competence. The court has taken very few steps to ensure training, supervision and assessment of competence of interpreters, not to mention the proper interaction of interpreters, lawyers, clerks and judges. These are clear breaches of a citizen’s right to the assistance of an interpreter (section 14 of the Charter) as set out in R. v. Tran, 1994 CanLII 56 (SCC), [1994] 2 S.C.R. 951, R. v. Sidhu, [2005] CanLII 42491 (ONSC), and other cases.

Equality rights (section 15)

15. (1) Equality before and under law and equal protection and benefit of law

15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

15. (2) Affirmative action programs

15. (2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

[LAST UPDATE: MAY 2017]

Annotations

Gosselin (Tutor of) v. Quebec (Attorney General), [2005] 1 S.C.R. 238, 2005 SCC 15 (CanLII)

[1] In this appeal, the Court is asked to measure the constitutional right to minority language education against the right to equality. The appellants claim that the Charter of the French language, R.S.Q., c. C-11, which provides access to English language schools in Quebec only to children who have received or are receiving English language instruction in Canada or whose parents studied in English in Canada at the primary level, discriminates between children who qualify and the majority of French-speaking Quebec children, who do not. The result, the appellants argue, violates the right to equality guaranteed at ss. 10 and 12 of the Quebec Charter of Human Rights and Freedoms, R.S.Q., c. C-12. Equality requires, the appellants argue, that all children in Quebec be given access to publicly funded English language education.

[2] If adopted, the practical effect of the appellants’ equality argument would be to read out of the Constitution the carefully crafted compromise contained in s. 23 of the Canadian Charter of Rights and Freedoms. This is impermissible. As the Court has stated on numerous occasions, there is no hierarchy amongst constitutional provisions, and equality guarantees cannot therefore be used to invalidate other rights expressly conferred by the Constitution. All parts of the Constitution must be read together. It cannot be said, therefore, that in implementing s. 23, the Quebec legislature has violated either s. 15(1) of the Canadian Charter or ss. 10 and 12 of the Quebec Charter. The appeal should therefore be dismissed.

[…]

[10] The appellants are in a position no different from the majority of Quebec residents who receive or have received their primary and secondary instruction in French. Nonetheless, they claim that the categories of rights holders implemented by the Charter of the French language are discriminatory and should be reformed to permit them to enrol their children in English language instruction in Quebec. As members of the French language majority in Quebec, they seek to use the right to equality to access a right guaranteed in Quebec only to the English language minority.

[…]

[12] Section 15(1) of the Canadian Charter does not expressly enumerate language as a prohibited ground of discrimination. However, we agree with the observations of the Saskatchewan Court of Appeal in Reference re Use of French in Criminal Proceedings in Saskatchewan (1987), 1987 CanLII 204 (SK CA), 36 C.C.C. (3d) 353, at p. 373, that:

Nor, in our view, does the presence in the Charter of the language provisions of ss. 16 to 20, or the deletion from an earlier draft of s. 15(1) of the word “language”, have the effect necessarily of excluding from the reach of s. 15 the form of distinction at issue in this case.

In Québec (Procureure générale) v. Entreprises W.F.H. Ltée, [2000] R.J.Q. 1222, at p. 1250, the Quebec Superior Court held that [translation] “maternal language” was an analogous ground. It is not necessary to explore this point further on this appeal because the principal issue is not the content of the equality rights under the Canadian Charter but, assuming the appellants have an arguable case to bring themselves within s. 15(1) of the Canadian Charter, the issue at the root of this appeal is the relationship of equality rights in both the Canadian Charter and the Quebec Charter to the positive language guarantees given to minorities under the Constitution of Canada and the Charter of the French language.

[…]

[16] The appellants misconceive the objective of s. 73 of the Charter of the French language when they submit that “[t]he stated purpose and effect of the provisions of the CFL is to first distinguish and then exclude entire categories of children from a public service” (appellants’ factum, at para. 48 (emphasis in original)). The purpose of s. 73 is not to “exclude” but rather to implement the positive constitutional responsibility incumbent upon all provinces to offer minority language instruction to its minority language community. It is from this perspective that the present appeal must be considered.

[…]

C. The Right to Equality Is Not Opposable to Section 23 of the Canadian Charter

[21] […] As noted earlier, s. 23 could also be viewed not as an “exception” to equality guarantees but as their fulfilment in the case of linguistic minorities to make available an education according to their particular circumstances and needs equivalent to the education provided to the majority (Arsenault-Cameron, at para. 31).

[22] The appellants in this case are attempting to accomplish precisely that which Mahe said was prohibited, namely the use of equality guarantees to modify the categories of rights holders under s. 23. The attempt was rejected in Mahe, albeit in different circumstances, and should be rejected again in this appeal.

Solski (Tutor of) v. Quebec (Attorney General), [2005] 1 S.C.R. 201, 2005 SCC 14 (CanLII)

[20] Section 23 provides a comprehensive code of minority language education rights which afford special status to minority English- or French-language communities. The Court in Mahe, at p. 369, recognized that this special status would create inequalities between linguistic groups. See also Adler v. Ontario, 1996 CanLII 148 (SCC), [1996] 3 S.C.R. 609, at para. 32. Specifically, English speakers living in Quebec and French speakers living in the territories and other provinces would enjoy rights denied to other linguistic groups. Section 23 has been described as an exception to ss. 15 and 27 of the Canadian Charter; it is rather an example of the means to achieve substantive equality in the specific context of minority language communities. […]

Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624, 1997 CanLII 327 (SCC)

[54] In the case of s. 15(1), this Court has stressed that it serves two distinct but related purposes. First, it expresses a commitment -- deeply ingrained in our social, political and legal culture -- to the equal worth and human dignity of all persons. As McIntyre J. remarked in Andrews, at p. 171, s. 15(1) “entails the promotion of a society in which all are secure in the knowledge that they are recognized at law as human beings equally deserving of concern, respect and consideration”. Secondly, it instantiates a desire to rectify and prevent discrimination against particular groups “suffering social, political and legal disadvantage in our society”; see R. v. Turpin, 1989 CanLII 98 (SCC), [1989] 1 S.C.R. 1296, at p. 1333 (per Wilson J.); see also Beverley McLachlin, “The Evolution of Equality” (1996), 54 Advocate 559, at p. 564. While this Court has confirmed that it is not necessary to show membership in a historically disadvantaged group in order to establish a s. 15(1) violation, the fact that a law draws a distinction on such a ground is an important indicium of discrimination; see Miron v. Trudel, 1995 CanLII 97 (SCC), [1995] 2 S.C.R. 418, at para. 15 (per Gonthier J.) and at paras. 148-149 (per McLachlin J.), and Egan v. Canada, 1995 CanLII 98 (SCC), [1995] 2 S.C.R. 513, at paras. 59-61 (per L’Heureux-Dubé J.).

[…]

[57] Deaf persons have not escaped this general predicament. Although many of them resist the notion that deafness is an impairment and identify themselves as members of a distinct community with its own language and culture, this does not justify their compelled exclusion from the opportunities and services designed for and otherwise available to the hearing population. For many hearing persons, the dominant perception of deafness is one of silence. This perception has perpetuated ignorance of the needs of deaf persons and has resulted in a society that is for the most part organized as though everyone can hear; see generally Oliver Sacks, Seeing Voices: A Journey Into the World of the Deaf (1989). Not surprisingly, therefore, the disadvantage experienced by deaf persons derives largely from barriers to communication with the hearing population.

[…]

[60] The only question in this case, then, is whether the appellants have been afforded “equal benefit of the law without discrimination” within the meaning of s. 15(1) of the Charter. On its face, the medicare system in British Columbia applies equally to the deaf and hearing populations. It does not make an explicit “distinction” based on disability by singling out deaf persons for different treatment. Both deaf and hearing persons are entitled to receive certain medical services free of charge. The appellants nevertheless contend that the lack of funding for sign language interpreters renders them unable to benefit from this legislation to the same extent as hearing persons. Their claim, in other words, is one of “adverse effects” discrimination.

[61] This Court has consistently held that s. 15(1) of the Charter protects against this type of discrimination. In Andrews, supra, McIntyre J. found that facially neutral laws may be discriminatory. “It must be recognized at once”, he commented, at p. 164, “. . . that every difference in treatment between individuals under the law will not necessarily result in inequality and, as well, that identical treatment may frequently produce serious inequality”; see also Big M Drug Mart Ltd., supra, at p. 347. Section 15(1), the Court held, was intended to ensure a measure of substantive, and not merely formal equality.

[62] As a corollary to this principle, this Court has also concluded that a discriminatory purpose or intention is not a necessary condition of a s. 15(1) violation; see Andrews, at pp. 173-74, and Rodriguez v. British Columbia (Attorney General), 1993 CanLII 75 (SCC), [1993] 3 S.C.R. 519, at pp. 544-49 (per Lamer C.J.); see also Ontario Human Rights Commission v. Simpsons‑Sears Ltd., 1985 CanLII 18 (SCC), [1985] 2 S.C.R. 536, at p. 547. A legal distinction need not be motivated by a desire to disadvantage an individual or group in order to violate s. 15(1). It is sufficient if the effect of the legislation is to deny someone the equal protection or benefit of the law. As McIntyre J. stated in Andrews, at p. 165, “[t]o approach the ideal of full equality before and under the law . . . the main consideration must be the impact of the law on the individual or the group concerned”. In this the Court has staked out a different path than the United States Supreme Court, which requires a discriminatory intent in order to ground an equal protection claim under the Fourteenth Amendment of the Constitution; see Washington, Mayor of Washington, D.C. v. Davis, 426 U.S. 229 (1976), Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252 (1977), and Personnel Administrator of Massachusetts v. Feeney, 442 U.S. 256 (1979).

[…]

[71] If there are circumstances in which deaf patients cannot communicate effectively with their doctors without an interpreter, how can it be said that they receive the same level of medical care as hearing persons? Those who hear do not receive communication as a distinct service. For them, an effective means of communication is routinely available, free of charge, as part of every health care service. In order to receive the same quality of care, deaf persons must bear the burden of paying for the means to communicate with their health care providers, despite the fact that the system is intended to make ability to pay irrelevant. Where it is necessary for effective communication, sign language interpretation should not therefore be viewed as an “ancillary” service. On the contrary, it is the means by which deaf persons may receive the same quality of medical care as the hearing population.

[…]

[80] In my view, therefore, the failure of the Medical Services Commission and hospitals to provide sign language interpretation where it is necessary for effective communication constitutes a prima facie violation of the s. 15(1) rights of deaf persons. This failure denies them the equal benefit of the law and discriminates against them in comparison with hearing persons.

[…]

Reference re Public Schools Act (Man.), s. 79(3), (4) and (7), [1993] 1 S.C.R. 839, 1993 CanLII 119 (SCC)

Question (c)(i) Do section 23 and section 15 of the Charter grant any right of management or control in connection with section 23's guarantees of French language instruction and facilities?

[30] This issue has, for the most part, been disposed of by Mahe. The respondent concedes that the majority of the Court of Appeal's ruling has now been superseded and seeks an order allowing the appeal without costs. The key dispute remaining is how precise the Court should be in setting out the parameters of the management and control of language instruction and facilities required under s. 23 of the Charter.

[31] With respect to other Charter rights, the Court considered in Mahe the argument that s. 23 should be interpreted in light of ss. 15 and 27 and concluded the following (at p. 369):

Section 23 provides a comprehensive code for minority language educational rights; it has its own internal qualifications and its own method of internal balancing. A notion of equality between Canada's official language groups is obviously present in s. 23. Beyond this, however, the section is, if anything, an exception to the provisions of ss. 15 and 27 in that it accords these groups, the English and the French, special status in comparison to all other linguistic groups in Canada.

I see no reason to depart from this position. Therefore, it follows that the finding of Monnin C.J. of the Manitoba Court of Appeal on the application of ss. 15 and 23 is, with respect, incorrect.

Mahe v. Alberta , [1990] 1 S.C.R. 342, 1990 CanLII 133 (SCC)

[45] […] While I agree that it is often useful to consider the relationship between different sections of the Charter, in the interpretation of s. 23 I do not think it helpful in the present context to refer to either s. 15 or s. 27. Section 23 provides a comprehensive code for minority language educational rights; it has its own internal qualifications and its own method of internal balancing. A notion of equality between Canada's official language groups is obviously present in s. 23. Beyond this, however, the section is, if anything, an exception to the provisions of ss. 15 and 27 in that it accords these groups, the English and the French, special status in comparison to all other linguistic groups in Canada. As the Attorney General for Ontario observes, it would be totally incongruous to invoke in aid of the interpretation of a provision which grants special rights to a select group of individuals, the principle of equality intended to be universally applicable to "every individual".

Devine v. Quebec (Attorney General), [1988] 2 S.C.R. 790, 1988 CanLII 20 (SCC)

[31] This leaves the question as to whether s. 57 is contrary to ss. 15 and 1 of the Canadian Charter. Section 15 of the Canadian Charter was invoked by the appellant only before this Court, although the Attorney General of Quebec did agree that constitutional questions be stated and that s. 15 should be in issue. Nevertheless, we do not have the benefit of reasons from the Court of Appeal or from the Superior Court interpreting the application of s. 15 to s. 57. Nor has this Court yet rendered any judgment interpreting the meaning of s. 15. It is not necessary in this case to discuss whether s. 57 is prima facie in breach of s. 15. We have already determined that it is prima facie in breach of s. 2(b). The only question that remains to be answered is whether the application of s. 1 would be any different if there were a prima facie breach of s. 15 in this case. More specifically, the question becomes whether the proportionality test laid down in R. v. Oakes, 1986 CanLII 46 (SCC), [1986] 1 S.C.R. 103, and restated by Dickson C.J. in R. v. Edwards Books and Art Ltd., 1986 CanLII 12 (SCC), [1986] 2 S.C.R. 713, would yield a different result in this case if the prima facie breach in issue were a breach of the rights guaranteed under s. 15. We have already determined that the requirement of joint use of French is rationally connected to the legislature's pressing and substantial concern to ensure that the "visage linguistique" of Quebec reflects the predominance of the French language. Does this requirement impair as little as possible the right to equality before and under the law and the right to equal protection and benefit of the law without discrimination? Is it designed not to trench on that right so severely that the legislative objective is nevertheless outweighed by the abridgment of rights? By ensuring that non-francophones can draw up application forms for employment, order forms, invoices, receipts and quittances in any language of their choice along with French, s. 57, read together with s. 89, creates, at most, a minimal impairment of equality rights. Although, as the appellant contended, the requirement of joint use of French might create an additional burden for non-francophone merchants and shopkeepers, there is nothing which impairs their ability to use another language equally. Thus, the conclusion we have reached with respect to the operation of s. 1 stands even if the prima facie breach of the Canadian Charter at issue is a breach of s. 15.

[32] As it is our view that the equality guarantees in s. 15 of the Canadian Charter and s. 10 of the Quebec Charter were not infringed, it is unnecessary in this case to decide whether corporations are entitled to the direct benefit of these protections. It is further unnecessary to decide whether the appellant corporation was entitled to challenge s. 57 as inconsistent with s. 15 of the Canadian Charter.

156158 Canada inc. c. Attorney General of Quebec, 2017 QCCA 2055 (CanLII)

[116] The Appellants did not submit arguments regarding s. 10 of the Quebec Charter because, in their view, it achieves the same result as s. 15 of the Canadian Charter. To justify a departure from the Supreme Court’s ruling in Devine, on the Bedford and Carter test, they propose a new legal argument and to demonstrate a significant evolution in the jurisprudence.

[117] Referring to Quebec (Attorney General) v. A the Appellants submit that the impact of requiring the joint use of French restricts Anglophones’ right to express themselves on the same basis as Francophones — i.e. in their first language. In addition, this requirement imposes economic and psychological burdens, as Quebec Anglophones are the only group in Canada to be treated in this way.

[118] In my view, the Appellants do not raise a new legal issue or a change in circumstance, which opens the door to this Court revisiting the Supreme Court ruling in Devine.

[119] The Superior Court judge confirmed the trial judge’s s. 15 analysis. As for the violation under the Quebec Charter — which the trial judge did not address —, the Superior Court judge followed the reasoning in Devine. In the absence of a violation of the freedom of expression, it follows that there is no violation of the equal recognition of this right. In any case, the judge reiterated that an infringement of the right to equality would be justified under the Oakes test.

[120] The Appellants have failed to demonstrate that the provisions of ss. 51, 52 and 58 C.F.L. create a disadvantage, even when considering the more flexible test affirmed in Quebec (Attorney General) v. A. The challenged legislation does not prevent the Appellants from advertising with their desired form and content; it merely requires them to add a concurrent or “markedly predominant” French version should they wish to advertise in English. In addition, the Appellants did not provide any evidence of an additional economic burden that would result from this requirement. A disadvantage could potentially arise in the form of an additional economic burden placed on an Anglophone business required to advertise in two languages rather than one. If the business is thus obliged to incur additional expense for translation, website construction or printing, there might be in some cases, an additional burden created. Such burden might constitute discrimination for a small enterprise where the total revenue is such as to make the additional costs disproportionate and overly burdensome. Nevertheless, and as indicated above, no evidence of this nature was adduced by the Appellants before the trial court so that such an analysis of equality rights cannot be undertaken in this case.

N.B. – Application for leave to appeal has been filed with the Supreme Court of Canada on February 19, 2018.

R. v. MacKenzie , 2004 NSCA 10 (CanLII)

[31] “Language” is not a listed category of discrimination under s. 15(1). Section 15(1) could only apply if “language” was an analogous ground of discrimination. The Supreme Court has outlined the approach to determining whether an alleged ground of discrimination is “analogous” eg. Egan v. Canada, 1995 CanLII 98 (SCC), [1995] 2 S.C.R. 513; Law, above; M. v. H., above, at para. 63.

[32] Neither in the decision under appeal, nor in Deveau, did the SCAC consider whether “language” is an analogous category under s. 15(1).

[33] Appellate courts repeatedly have stated that “language” is not an analogous ground of s. 15(1). The reason is that ss. 16-23 of the Charter deal specifically with language rights. If “language” also was subject to the over-arching coverage of s. 15(1), then the ambit of the protections in ss. 16-23 would have little meaning. See: Lalonde v. Ontario (Commission de Restructuration des Services de Santé) (2001), 2001 CanLII 21164 (ON CA), 208 D.L.R. (4th) 577 (OCA) at 621-622; MacDonnell v. Federation de Franco-Columbiens (1986), 1986 CanLII 927 (BC CA), 31 D.L.R. (4th) 296 (BCCA); R. v. Paquette (1987), 1987 ABCA 228 (CanLII), 46 D.L.R. (4th) 81 (ACA); Ringuette v. Canada (A.G.) (1987), 53 Nfld. & P.E.I.R. 126 (NCA); R. v. Simard (1995) 27 O.R. (3rd) 116 (OCA) at 126 and 131; R. v. Crête, (1994), 64 O.A.C. 399 (OCS); Seaway Trust v. Kilderkin Investments Limited (1986), 1986 CanLII 2580 (ON SC), 29 D.L.R. (4th) 456 (OHCJ); R. v. Rodrigue (1994), 1994 CanLII 5249 (YK SC), 91 C.C.C. (3rd) 455 (YSC) at pp. 472 - 4, appeal dismissed on jurisdictional grounds, (1995), 95 C.C.C. (3rd) 129 (YTCA), leave to appeal denied by the Supreme Court of Canada, [1995] 3 S.C.R. vii.

Entreprises W.F.H. Ltée v. Québec (Procureure Générale du), 2001 CanLII 17598 (QC CA) [judgment available in French only]

[OUR TRANSLATION]

[4] The appellant was convicted of violating s. 58 of the Quebec Charter of the French Language, R.S.Q., c. C-11, which requires the marked predominance of French in commercial signage, and was ordered to pay the minimum fine provided for under s. 205 of the same Act. It is seeking a declaration from the Court that these sections are inoperative and of no force and effect on the grounds that s. 58 violates its right to freedom of expression guaranteed by subs. 2(b) of the Canadian Charter of Rights and Freedoms and s. 3 of the Quebec Charter of Human Rights and Freedoms, R.S.Q., c. C-12, and its right to equality guaranteed by s. 15 of the Canadian Charter and s. 10 of the Quebec Charter.

[…]

[91] Its answers appear to be accurate, in my opinion. Section 58 of the Charter of the French Language clearly imposes different treatments for Francophones and persons with a different mother tongue. A Francophone can advertise only in French, whereas a person with a mother tongue other than French must add to the text in his or her language a markedly predominant French version. However, the decision in Law clearly establishes that a different treatment is not necessarily synonymous with prohibited discrimination. As established at para 83 of Law, the first question to be asked by the court in every case will be whether a violation of human dignity has been established, in light of the historical, social, political and legal context of the claim.

[92] It is recognized in Ford, at p. 778, that the aim of the language policy underlying the Charter of the French Language was a serious and legitimate one. This objective is described in the preamble: to assure the quality and influence of the French language. At p. 777 of Ford, the Supreme Court found that the material entered into the record amply established the importance of the legislative purpose reflected in the Charter of the French Language and that it is a response to a substantial and pressing need.

[93] Non-Francophone merchants are free to give their advertising the form and content they desire. They are simply asked to add a markedly predominant French version. Like the judge from the Superior Court, I do not see any violation of the appellant’s dignity or any discrimination.

Westmount (ville de) v. Québec (Procureur général), 2001 CanLII 13655 (QC CA) [judgment available in French only]

[OUR TRANSLATION]

[149] It is far from certain that s. 15 of the Canadian Charter can be used to support the protection of language rights provided under the Constitution. As we have already pointed out, language rights cannot be confused with the fundamental guarantees of the Charter. Moreover, the Supreme Court has clearly stated that it is inappropriate to use ss. 15 and 27 to determine the scope of language rights.

[150] Through s. 15, a portion of the Anglophone minority of Montreal claims the right to control (monitor) a local government entrusted with all the powers and competencies that the legislator cannot change without its consent. These rights would be conferred on local communities that are distinguished by their language, culture and religion. In so doing, as the respondent points out in his plea, the appellants are claiming a collective right which would impose a positive obligation on the Government, while the protection afforded by s. 15 is mainly of an individual nature.

[151] Nevertheless, even when agreeing to review the issue from the angle proposed by the appellants, their claims must still be dismissed.

[…]

[161] In any case, it is not even necessary to dispose of this issue since, even if the appellants could meet the first test developed in Law, they obviously cannot meet the second test (distinction based on an analogous ground). Although the three tests in this decision are distinct, they are nevertheless cumulative.

[162] The appellants are wrong to argue that the alleged difference in treatment arises from language, whereas in reality, it simply flows from their place of residence, a ground which is not analogous within the meaning of section 15.

[…]

[169] It must therefore be concluded that the difference in treatment pleaded by the appellants is not based on one of the enumerated or analogous grounds in section 15 of the Canadian Charter and the right to equality under this section has therefore not been violated.

Lalonde v. Ontario (Commission de restructuration des services de santé), 2001 CanLII 21164 (ON CA)

[96] Montfort cross-appeals the Divisional Court's dismissal of the claim that the Commission's directions violate their equality rights protected by s. 15 of the Charter. This issue was not pressed in oral argument, but is fully developed in Montfort's factum. In our view, the Divisional Court was correct in rejecting this submission on the ground, at p. 79 O.R., that "s. 15 of the Charter may not be used as a back door to enhance language rights beyond what is specifically provided for elsewhere in the Charter." Assuming, without deciding, that the respondents otherwise satisfy the test for a violation of s. 15, we agree with the Divisional Court that, in view of the very specific and detailed provisions of ss. 16-23 of the Charter dealing with the special status of English and French, any differential treatment to francophones resulting from the Commission's directions is not based upon an enumerated or analogous ground. As the Divisional Court stated at p. 80 O.R.: "Section 15 itself . . . cannot be invoked to supplement language rights which the Charter has not expressly conferred."

[…]

[101] It has been held in other contexts that where the Constitution accords special rights to special groups, those specific guarantees must be respected and other Charter rights cannot be used to expand or diminish the rights so granted. In Reference Re Bill 30, supra, Wilson J. stated at pp. 1196-97 S.C.R. that although the special minority religion education rights conferred by s. 93 of the Constitution Act, 1867 "[sit] uncomfortably with the concept of equality embodied in the Charter", s. 15 can be used neither to nullify the specific rights of the protected group nor to extend those rights to other religious groups. This position was affirmed in Adler v. Ontario, 1996 CanLII 148 (SCC), [1996] 3 S.C.R. 609, 140 D.L.R. (4th) 385. There, the court dismissed a claim for funding health services for religious schools falling outside the ambit of s. 93 based on the guarantee of freedom of religion in s. 2(a) and on the right to equality in s. 15.

[102] Accordingly, we would dismiss Montfort's cross-appeal from the dismissal of the s. 15 claim.

Gingras v. Canada , [1994] 2 F.C.R. 734, 1994 CanLII 3475 (FCA)

[60] The allegation of discrimination is so tenuous that it does not merit close scrutiny. The respondent did not say what kind of discrimination was involved and submitted no evidence other than superficial and unsupported statistics. If it is discrimination based on language the claim would probably have to be dismissed as language is not one of the grounds described in section 15: it seems unlikely to me that a person could by means of so-called discrimination based on use of the official languages obtain more under subsection 15(1) of the Charter than what he would be entitled to under the language guarantee as defined in sections 16 to 22; and if there was discrimination it would not be discrimination based on language or, strictly speaking, national or ethnic origin, but discrimination based on the fact that bilingual employees perform administrative duties and other employees policing duties. That does not prima facia provide any basis for intervention under the Charter. In any case, the lack of serious evidence of discrimination is such that the claim based on the Charter is clearly frivolous in the case at bar.

[61] In his capacity as a former member of the RCMP the respondent was entitled to be paid the [Bilingualism] bonus by CSIS from July 16, 1984 to March 5, 1985, but not after that.

R. v. Crete, 1993 CarswellOnt 1145, 20 W.C.B. (2d) 233, 64 O.A.C. 399 (ON CA) [hyperlink not available]

[1] The appellant has limited his argument to s. 15(1) of the Charter and says that there was discrimination in serving him with a notice in English which he, as a Francophone, could not read. This is not a language issue; it is an argument that such notices must be capable of being read and understood by all recipients. Persons who are illiterate or unilingual in any one of a multitude of languages, other than English, are put to more trouble than an English-speaking person when receiving such a document. However, this is a difference which falls short of s.15 discrimination: Andrews v. Law Society of B.C. (1989), 56 D.L.R. (4) 1. All government documents will inevitably be unreadable by some group of persons. It would be trivializing s. 15 to declare them all discriminatory and then, as the appellant would have it, turning to s.1 to justify all except those which affect French-speaking unilinguals.

Re Headley and Public Service Commission appeal board , [1987] 2 FCR 235, 1987 CanLII 5362 (FCA)

[14] The facts are simple. The employer advertised a closed competition for the position of "CR-4, Reception Information Clerk" for the Toronto West Canada Immigration Centre. The applicant was screened out because she did not have proficiency in the use of one of the six languages (Vietnamese, Chinese, Polish, Portuguese, Italian, Spanish) the employer had specified as a basic requirement in the statement of qualifications for the position.

[15] It is common ground that the merit principle enshrined in section 10 of the Public Service Employment Act [R.S.C. 1970, c. P-32] ("the Act") was fully observed by the selection board in its actual assessment of candidates and that the applicant has no complaint vis-à-vis the treatment of the other candidates. Her allegation of unequal treatment is essentially in relation to the two other incumbents of CR-4, Reception Information Clerk positions in the Toronto West Canada Immigration Centre, neither of whom is required to possess proficiency in any of the six languages. In fact, one speaks German in addition to English; the other, in a designated bilingual imperative position, speaks Vietnamese and Chinese in addition to English and French. However, the Board determined that neither was required to speak any language beyond English in the first instance or English and French in the second.

[…]

[17] The applicant alleges that she has been deprived of equality before and under the law and that she has been deprived for her right to the equal protection and equal benefit of the law under section 15 by being subject to a language requirement in her application for the CR-4 position where the two incumbents presently holding that position were not subject to that requirement and are not now subject to it.

[…]

[24] To put it more exactly, I find the internal limit "discrimination" to be required in all cases, but in some cases, viz. those based on the enumerated grounds, the drafters have already made the fundamental determination that pejorative distinctions based on those grounds constitute discrimination, whereas in other cases the complainant has to prove that discrimination results. In all cases, however, the discrimination has to be more than trivial. In result, then, though not in concept, this analysis resembles the distinction drawn by American courts between strict scrutiny and minimal scrutiny. In Canada I believe the distinction is not made on the authority of the courts but on that of the Constitution itself.

[25] The Constitution itself, I believe, compels this distinction between enumerated and non-enumerated grounds. In particular, the fact that the drafters spelled out as grounds the principal natural and unalterable facts about human beings -- race, national or ethnic origin, colour, religion (admittedly, not wholly a natural and unalterable fact), and sex -- can only mean, I believe, that non-trivial pejorative distinctions based on such categories are intended to be justified by governments under section 1 rather than to be proved as infringements by complainants under section 15. In sum, some grounds of distinction are so presumptively pejorative that they are deemed to be inherently discriminatory.

[26] In the instant case the applicant initially proposed a blood theory of language and ethnicity which would have equated the preferential language requirement here with preferential treatment for the national or ethnic groups which normally spoke the six languages in question. This unhappy argument was not proceeded with in oral argument.

[27] The applicant was therefore left with the necessity of proving discrimination on the basis of language without the benefit of an enumerated ground of discrimination. This was a burden she was not able to meet. Management's right to establish qualifications for public service positions has been regarded as "inherent", at least since the decision of this Court in Bauer v. Public Service Appeal Board, [1973] F.C. 626 (C.A.), at page 630, per Jackett C.J. […]

[…]

[30] If the criterion of discrimination is whether or not management has some rational basis for its action, as is urged by the applicant herself, also on the authority of the U.S. cases (although she might equally well have based it on the language of McIntyre J. in MacKay v. The Queen, [1980] 2 S.C.R. 370, at page 406), that criterion has been met, as the Board decision shows.

Ringuette v. Canada (Attorney General), 1987 CanLII 3953 (NL CA)

[pp. 520-521] Certainly, in so far as the Province of Newfoundland is concerned, when one considers the findings of fact by the trial judge, already referred to, it cannot seriously be contended that the failure to proclaim Part XIV.1 [of the Criminal Code] in effect in Newfoundland results in the infringement or abrogation of the constitutional rights of the Appellant under the Constitution Act, 1982, and specifically s. 15 thereof.

Reference re French Language Rights of Accused in Saskatchewan Criminal Proceedings , 1987 CanLII 204 (SK CA)

[71] The Attorney General submitted (i) that s. 15(1) is concerned only with distinctions or classifications based on the enumerated grounds (race, national or ethnic origin, colour, religion, sex, age or mental or physical disability), each of which concerns some personal characteristic irrelevant to the law, or on such other grounds, so similar to these, as to be comprehended by the subsection's concept of "discrimination"; (ii) that the distinction between a francophone accused in Saskatchewan and his counterpart in those provinces in which Pt. XIV.1 of the [Criminal] Code is in effect is based either on "official language" or on "locus of proceedings", neither of which is an enumerated ground (indeed "language", it was said, is an expressly excluded ground) and neither of which has anything in common with the enumerated grounds, since neither involves any irrelevant personal characteristic; and (iii) that for these reasons, alone, the state of affairs disclosed by the question is beyond the ambit of s. 15.

[72] In our respectful view this submission is without merit. To begin with, the listing in s. 15(1) of the bases for discrimination is not exhaustive; the language of the subsection makes that very clear. Nor in our opinion is an ejusdem generis construction appropriate in this instance. This and other similar maxims evolved in the context of statutory interpretation, whose end it is to discover the intention of the legislator. Charter construction is quite a different matter: Hunter v. Southam Inc., [1984] 2 S.C.R. 145 at 156-57, [1984] 6 W.W.R. 577 (sub nom. Dir. of Investigation & Research, Combines Investigation Branch v. Southam Inc.), 33 Alta. L.R. (2d) 193, 41 C.R. (3d) 97, 27 B.L.R. 297, 14 C.C.C. (3d) 97, 11 D.L.R. (4th) 641, 9 C.R.R. 355, 2 C.P.R. (3d) 1, 84 D.T.C. 6467, 55 A.R. 291, 55 N.R. 241; R. v. Big M Drug Mart Ltd., supra. Thus these aids (which are just that in any event and do not pre-ordain conclusions) are not of the same value in relation to Charter construction as they are in respect of purely statutory interpretation. Moreover, as was said in Big M Drug Mart, the provisions of the Charter are to be accorded a generous rather than a legalistic interpretation.

[73] This is not to say that the listing of certain grounds and not others is wholly immaterial — the basis upon which a distinction rests may well bear upon whether, and the ease with which, that distinction may be justified, another matter altogether — but in our opinion s. 15(1) is not to be construed in the narrow fashion contended for.

[74] It is therefore immaterial that "official language" or "locus of proceedings", assuming either of these is the basis for the distinction at issue, are not included among the enumerated grounds, or that the enumerated grounds may enjoy a genus or common character not shared by "official language" or "locus of proceedings". Nor, in our view, does the presence in the Charter of the language provisions of ss. 16 to 20, or the deletion from an earlier draft of s. 15(1) of the word "language", have the effect necessarily of excluding from the reach of s. 15 the form of distinction at issue in this case.

[…]

[109] Assuming, for the purposes of dealing with the issue at hand, that the nature, scope and aspect of the form of equality in the law with which we are concerned requires a determination of whether the impugned measures treat likes alike, the answer must be they do not. A francophone accused in Saskatchewan does not enjoy the right, accorded by federal law, to his or her counterpart in, let us say, Manitoba and Ontario to be tried in his or her own official language; so the measures cannot be said to treat similarly those similarly situated.

[110] Nor should it be necessary so to decide (that is, if the opening clause of s. 15(1) does not, in combination with ss. 1 and 24(1) found individual rights and remedies), has an accused in Saskatchewan, whose language is French, been extended the same protection or benefit of law as has his counterpart elsewhere in the country. While no doubt embracing more than this, it is our view that one or the other of the concepts of equality in relation to the protections and benefits of the law is sufficiently wide, in this event, to include the condition at issue.

[111] Thus, there exists within the state of affairs disclosed by the question a form of inequality falling within s. 15(1), and non-proclamation in Saskatchewan clearly has the effect of nullifying or impairing the enjoyment by a francophone accused in Saskatchewan of his or her constitutional right to equality in the law.

[112] We have no difficulty, therefore, in concluding that the s. 15(1) rights of an accused in Saskatchewan whose language is French are, in the circumstances, infringed, and that he is entitled, unless justifica tion for this state of affairs can be found in s. 1, to apply for and obtain an appropriate and just remedy pursuant to s. 24(1) of the Charter.

McDonnell v. Fed. des Franco-Colombiens , 1986 CanLII 927 (BC CA)

[7] In referring to "the Act", he means the Act passed by the British Parliament in 1731 which required all court proceedings to be in the English language. The courts have held this Act to be in force in British Columbia, but I do not intend to deal with it because the same arguments apply to it as apply to Rule 4(2) [of the Supreme Court Rules]. He submits, also, that the chambers judge erred in concluding that the object of R. 4(2) has the same object as the rules generally (that is, the just, speedy and inexpensive determination of every proceeding on its merits), contending that the rule has a much narrower purpose, namely, “understand-ability and convenience for judges, counsel and litigants”. He submits that permitting a person whose first language is French to file pleadings in French would advance, rather than inhibit, this object. He submits that, relying on the tests for discrimination which this court enunciated in Andrews v. Law Soc. and which Macfarlane J.A. enunciated in Rebic v. Collver Prov. J. (1986), 1986 CanLII 1052 (BC CA), 2 B.C.L.R. (2d) 364, [1986] 4 W.W.R. 401 (C.A.), R. 4(2) is clearly discriminatory and cannot be justified under s. 1 of the Charter.

[8] On the other hand, counsel for the Attorney General, relying on the expressio unius maxim submits that ss. 16 to 22 are exhaustive of the subject of language rights, that there is nothing in any of these sections which would affect the power of B.C. to pass Rule 4(2) and that, therefore, the Federation cannot rely on s. 15. He contends, too, that the majority judgments of the Supreme Court in MacDonald and in Société des Acadiens clearly refute counsel's submissions and contentions.

[9] Generally, I agree with the submissions of the Attorney General. […]

[10] I start first with the role of s. 15, captioned "Equality Rights". It guarantees the right to the equal protection and equal benefit of the law without discrimination and specifies several areas of discrimination. While stating that specified areas of discrimination are not exhaustive, this court emphasized in Andrews v. Law Society that a court must interpret s. 15 in relation to the other sections of the Charter and cautioned against according paramountcy to s. 15. In giving the judgment of the court, McLachlin J.A. said at p. 50:

No one section should be regarded as paramount or as encompassing all of the other sections. That, however, may be what will become of s. 15 if it is interpreted as being violated by any distinction or unequal treatment. Section 15, like the 14^th Amendment in the United States Constitution will dwarf the other provisions of the Charter and be the central issue in virtually all Charter litigation. Laws which do not violate any other fundamental right or freedom will almost always (if the United States experience is any guide) be alleged to violate s. 15 because the legislature classified or failed to classify. Even though legislation does not violate any other sections, it will always be required to run the gauntlet of ss. 15 and 1. In my view, this cannot have been the intention of the enactors of the Charter.

[…]

[18] Section 15 is a guarantee against discrimination and is a legal right. While discrimination based purely on language may be within s. 15, our concern is whether the concept of "official language" comes within it. Having regard to the provisions of ss. 16 to 22 and the other sections dealing with languages and the judgments of the majority in MacDonald and Societe des Acadiens, I do not think that it does.

[19] Because of this conclusion it is unnecessary to deal with s. 15. Accordingly, I would dismiss the appeal.

Sojourner v. Conseil de la justice administrative , 2016 QCCS 3743 (CanLII) [judgment available in French only]

[OUR TRANSLATION]

[10] Another particularity of the hearing was that it was conducted in two languages with the Commissioner addressing Ms. Sojourner in English and the owner’s representative in French. At no time during the hearing did Ms. Sojourner indicate that she did not understand what was going on or require the presence of an interpreter or a translation of what had been said in French. There was no reference at any time to her race or sexual orientation.

[…]

[56] The notion of discrimination found in s. 15 of the Canadian Charter, also invoked by Ms. Sojourner, in so far as it applies here, also requires evidence of a violation that creates a disadvantage by perpetuating prejudice or stereotyping.

[57] […] Language-related elements should also be analyzed. If the Committee were satisfied, for example, that what was said in both languages made it possible to understand the basic message without systematic translation from French to English and English to French, it could be a relevant fact. If the other arguments presented were not based on any facts, at least no objective facts, it would have been welcome to say so.

R. v. Ejigu , 2016 BCSC 1487 (CanLII)

[179] I am, however, far more troubled by the evidence adduced concerning the effect of the language and cultural difficulties arising from Ms. Ejigu's ethnic background as a member of a cultural minority on her ability to meet the evidentiary burden imposed upon her under ss. 16(2) and (3) of the Code to establish the defence of NCRMD [Not Criminally Responsible on Account of Mental Disorder].

[180] The evidence of the three psychiatrists to which I have referred gives rise to serious concerns about the ability of a non-Amharic speaking psychiatrist to fully comprehend Ms. Ejigu's mental state at the time of the killing of Ms. Hagos because of the linguistic and cultural problems identified by each of them.

[181] The question is, however, not whether those identified obstacles to meeting the onerous burden of proof to establish NCRMD are more difficult for Ms. Ejigu than for others charged with a serious criminal offence.

[182] The question is: does that onerous burden of proof have a disproportionate effect upon her as a member of an ethnic minority who must interact with first responders, medical professionals and counsel as well as the Court through an interpreter?

[183] The issues identified by Ms. Ejigu are not uncommon in a diverse multicultural society. Courts in Canada are regularly faced with the challenges of assessing evidence that can only be received with the benefit of an interpreter.

[184] Cultural differences can also often be difficult to fully comprehend and may not be appreciated by either counsel or the Court who may also not be in a position to identify the significance of any such cultural differences in assessing evidence.

[185] The fact that linguistic and cultural differences may negatively impact a litigant's ability to present his or her case in civil matters or establish the foundation for a defence in criminal matters does not in and of itself give rise to the need for constitutional scrutiny under s. 15(1) of the Charter.

[186] It is only when an enactment has a disproportionate effect upon a claimant (or in the context of the criminal law — an accused person) based on his or her membership in an enumerated or analogous group that a prima facie case of a violation of s. 15(1) of the Charter is made out.

[187] It is, in my view obvious, that the difficulty faced by any litigant in overcoming pervasive linguistic and cultural difficulties will increase with the burden of proof they must meet to succeed on the matter in issue.

[188] That increasing difficulty does not, however, arise from disproportionate effects upon Ms. Ejigu as a member of a distinct linguistic and ethnic group.

[189] Ms. Ejigu or others like her who share the same or similar characteristics may, as a consequence of their linguistic limitations and cultural differences, face disadvantages in meeting whatever burden of proof the law may require.

[190] The fact that such disadvantage may increase with an elevated burden, as in the case with the impugned NCRMD provisions, does not arise because the law targets them directly or indirectly as members of a Charter protected enumerated or analogous group by increasing the burden on them as members of such a group. It arises because of the increased burden on all accused who seek to establish the defence of NCRMD.

[…]

[194] While Ms. Ejigu's linguistic difficulties and cultural idiosyncrasies may make the burden of proof under s. 16 of the Code more difficult for her than for another accused, I am satisfied that such increased difficulty does not elevate those personal circumstances to a violation of s. 15(1) Charter rights.

[195] To rule otherwise would be to call into question the fairness of virtually every criminal trial in Canada where the accused is faced with linguistic limitations or a cultural idiosyncrasy.

[196] Ms. Ejigu's submissions concerning the alleged violation of her s. 15(1) Charter rights arising from her linguistic and cultural disadvantages in meeting the burden of proof under s. 16 of the Code, also fail because the evidence relied upon by her to support those arguments does not sufficiently establish such a violation.

[…]

[206] In short, I find that while the burden upon Ms. Ejigu may be difficult to meet, neither s. 15(1) of the Charter, nor the fundamental principles of trial fairness support the granting of a constitutional remedy because of her linguistic difficulties or cultural idiosyncrasies.

Conseil-scolaire francophone de la Colombie-Britannique v. British Columbia (Education), 2016 BCSC 1764 (CanLII)

N.B. – The appeal of this judgement was heard by the British Columbia Court of Appeal in January and February 2018.

Galganov v. Russell (Township), 2010 ONSC 4566 (CanLII)

[189] The applicant alleges that Russell has breached his rights to equality as guaranteed by section 15(1) of the Charter:

[190] Subsection 15(1) of the Charter is aimed at preventing discriminatory distinctions that impact adversely on members of groups identified by the grounds enumerated in subsection 15(1) and analogous grounds. (R. v. Kapp, 2008 SCC 41 (CanLII), [2008] 2 S.C.R. 483 at paragraph 16)

[191] There are two reasons why the applicant’s submission has no merit:

(1) language is not a prohibited enumerated or analogous ground; and

(2) subsection 16(3) of the Charter, which sets out:

(3) Nothing in this Charter limits the authority of Parliament or a legislature to advance the equality of status or use of English and French.

[192] Subsection 16(3) of the Charter therefore shields the By-law [which required that all new exterior commercial signs be in English and French] from attack under subsection 15(1) of the Charter.

[…]

[194] Subsection 15(2) of the Charter provides:

(2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

[195] Subsections 15(1) and 15(2) of the Charter work together to promote the vision of substantive equality that underlies section 15 as a whole. (R. v. Kapp, supra, at paragraph 16). The Supreme Court of Canada explains that subsection 15(2) of the Charter:

... is more than a hortatory admonition. It tells us, in simple clear language, that s. 15(1) cannot be read in a way that finds an ameliorative program aimed at combatting disadvantage to be discriminatory and in breach of s. 15.

[196] Still in Kapp, supra, it is said that a by-law does not violate subsection 15(1) of the Charter if:

(a) it has an ameliorative or remedial purpose; and

(b) it targets a disadvantaged group identified by the enumerated or analogous grounds.

[197] The purpose of the By-law is to advance linguistic equality in Russell where a linguistically vulnerable Francophone population resides. It is ameliorative in its purpose.

[198] I conclude there is no breach of section 15(1).

Lavigne v. Quebec (Attorney General), 2000 CanLII 30033 (QC SC)

[27] Petitioner also submits that Respondent's administrative decision not to assign an English speaking attorney is discriminatory on the basis of both s. 10 of the Quebec Charter and s. 15 of the Canadian Charter. His motion does not specify which rights might be affected by this decision, but from Mr. Lavigne's pleadings we conclude that he believes himself to be discriminated against on the basis of language in the exercise of his freedom of expression.

[…]

[31] Moreover, if s. 15 of the Canadian Charter is to apply to the present case, a conclusion that this Court does not endorse, the analysis proposed by the Supreme Court in Law¹⁷ would have to be performed and the following questions answered:

Does the impugned law impose differential treatment?

Is this difference based on one or more enumerated or analogous grounds?

Does the law have the purpose or effect of affecting the essential dignity of the person?

[32] It is impossible to conclude that the French and English languages have a different status. Their equality is guaranteed by s. 133 of the Constitution Act of 1867 and this Court has already concluded that these linguistic rights have been respected by relying, among others, on the words of the Honourable Beetz in Société des Acadiens:

The guarantee of language equality is not, however, a guarantee that the official language used will be understood by the person to whom the pleading or process is addressed.

[33] A person speaking language (sic) other than one of the official languages of Canada could not successfully argue that he is being discriminated against before the Courts because he can't express himself in his own language. Section 15 of the Canadian Charter does not add to the linguistic rights recognised by s. 133.

[34] Would Mr. Lavigne be subjected to different treatment under the law because the services of an interpreter are required to ensure that his linguistic rights are protected? The Supreme Court has answered this question negatively in Mercure by relying on the majority's opinion in Société des Acadiens du Nouveau-Brunswick.

R. v. Rodrigue , 1994 CanLII 5249 (YK SC)

[36] […] In my opinion, the fact that counsel for the accused cannot obtain a French language version of the disclosed evidence does not constitute a violation of section 15. Section 15 should not be used to establish a legal right in judicial proceedings to favour the use of one or the other official language, particularly when one considers the specific and limited content of section 19 of the Charter, which specifically addresses linguistic rights in legal proceedings. […]

N.B. – The appeal of this judgment was dismissed on other grounds by the Yukon Court of Appeal and the application for leave to appeal to the Supreme Court of Canada was dismissed.

Commission des Ecoles Fransaskoises Inc. et al. v. Saskatchewan , 1988 CanLII 5128 (SK QB)

[45] A final argument mounted on behalf of the plaintiffs evolves from section 15(1) of the Charter. It is said that the equality provisions of that section are being transgressed because the children of section 23 parents are not receiving the same educational services as are available to the majority. In my opinion, section 15(1) has no practical application in the context of this action. The question here is whether section 23 parents residing in the Province of Saskatchewan are being afforded their full complement of guaranteed rights. If they are, then no issue involving section 15(1) arises. If they are not, any available remedy would flow from a breach of section 23, not section 15(1).

Cockburn v. YMCAs Across Southwestern Ontario , 2017 HRTO 267 (CanLII)

[3] The Tribunal found that the Respondent did not discriminate against the Applicant, who is Deaf, when it refused his request to provide an ASL [American Sign Language] interpreter at its own expense for a meeting between the Applicant and a YMCA Wellness Coordinator. The purpose of the meeting was to discuss a revised exercise plan for the Applicant following surgery to his shoulder.

[…]

[21] In Eldridge, the Supreme Court of Canada considered whether or not the failure of the B.C. government to provide funding for sign language interpreters for Deaf persons receiving medical services violated s. 15(1) of the Canadian Charter of Rights and Freedoms. The Court concluded that where sign language interpretation was necessary for effective communication to access health care services that the denial of such funding was a violation of the Charter.

[22] The Applicant argues that his efforts to meet with the Respondent’s Wellness Coordinator to discuss a revised exercise plan was equivalent to accessing health services.

[23] The decision in Eldridge involves the application of the Charter to a Government entity and the rights of Deaf persons to an interpreter when assessing services provided by such entity. I do not believe this decision stands for the proposition that similar Charter rights and obligations apply to private organizations such as the YMCA.

[24] Moreover, it is important to note that the decision in Eldridge does not provide an absolute right to sign language services. As stated at paragraph 82 of that decision, the Court held:

This is not to say that sign language interpretation will have to be provided in every medical situation. The “effective communication” standard is a flexible one, and will take into consideration such factors as the complexity and importance of the information to be communicated, the context in which the communications will take place and the number of people involved; see 28 C.F.R. § 35.160 (1997). For deaf persons with limited literacy skills, however, it is probably fair to surmise that sign language interpretation will be required in most cases…

[25] There was no evidence put forward at the Tribunal hearing to suggest that the Applicant had limited literacy skills. To the contrary, an evidentiary finding was made in the Tribunal’s Decision that the Applicant was able to effectively communicate in written form, as evidenced by his previous correspondence with the Respondent.

[26] I respectfully disagree with the proposition that the Applicant’s request to meet with a Wellness Coordinator was tantamount to accessing health care services. The YMCA is not a health care provider. The role of the Wellness Coordinator is to assist clients meet their exercise goals. They are not health care practitioners.

Official Languages of Canada (sections 16-22)

16. (1) Official languages of Canada

16. (1) English and French are the official languages of Canada and have equality of status and equal rights and privileges as to their use in all institutions of the Parliament and government of Canada.

16. (2) Official languages of New Brunswick

16. (2) English and French are the official languages of New Brunswick and have equality of status and equal rights and privileges as to their use in all institutions of the legislature and government of New Brunswick.

16. (3) Advancement of status and use

16. (3) Nothing in this Charter limits the authority of Parliament or a legislature to advance the equality of status or use of English and French.

[LAST UPDATE: JUNE 2017]

Annotations – General

R. v. Beaulac , [1999] 1 S.C.R. 768, 1999 CanLII 684 (SCC)

[22] The Official Languages Act of 1988 and s. 530.1 of the Criminal Code, which was adopted as a related amendment by s. 94 of the same Official Languages Act, constitute an example of the advancement of language rights through legislative means provided for in s. 16(3) of the Charter; see Simard, supra, at pp. 124-25. The principle of advancement does not however exhaust s. 16 which formally recognizes the principle of equality of the two official languages of Canada. It does not limit the scope of s. 2 of the Official Languages Act. Equality does not have a lesser meaning in matters of language. With regard to existing rights, equality must be given true meaning. This Court has recognized that substantive equality is the correct norm to apply in Canadian law. Where institutional bilingualism in the courts is provided for, it refers to equal access to services of equal quality for members of both official language communities in Canada. Parliament and the provincial legislatures were well aware of this when they reacted to the trilogy (House of Commons Debates, vol. IX, 1st sess., 33rd Parl., May 6, 1986, at p. 12999) and accepted that the 1988 provisions would be promulgated through transitional mechanisms and accompanied by financial assistance directed at providing the required institutional services.

[…]

Northwest Territories (Attorney General) v. Fédération Franco-Ténoise , 2008 NWTCA 6 (CanLII)

[123] As discussed at para. 60, official language statutes are interpreted by using Charter principles. The underlying principle is the protection of minorities: see Lalonde v. Ontario (Commission de restructuration des services de santé) (2001), 2001 CanLII 21164 (ON CA), 56 O.R. (3d) 505, 208 D.L.R. (4th) 577 at para. 125 (C.A.) (“Lalonde”) and Kilrich Industries Ltd. v. Halotier, 2007 YKCA 12 (CanLII), 161 C.R.R. (2d) 331 at para. 53 (“Halotier”). The trial judge applied principles from language rights jurisprudence, especially Beaulac where the Supreme Court confirmed, at para. 22, that substantive equality is the correct norm. We agree with the COLC [Commissioner of Official Languages for Canada] that substantive equality is the result envisaged by the legislature in enacting s. 16 of the Charter and ss. 4 and 5 of the OLA. Accordingly, the trial judge’s use of the expression “obligations of result”, was appropriate and supported by Beaulac.

R. v. Schneider , 2004 NSCA 151 (CanLII)

[19] The conclusion reached in MacKenzie was that a breach of s. 530 of the [Criminal] Code did not violate either s. 15 or s. 16 of the Charter. Language is neither a listed category nor an analogous ground of discrimination in Section 15. Section 16 only applies to “institutions of the Parliament and government of Canada” which does not include the Provincial Court of Nova Scotia. The language guarantees of s. 16(1) of the Charter do not apply to proceedings in the Provincial Court and s. 16(3) has not constitutionalized s. 530 of the Code. It is not necessary to repeat the analysis here. For the reasons given in MacKenzie, this ground of the Crown’s appeal is allowed. There was no breach of Ms. Schneider’s constitutional rights.

Charlebois v. Mowat , 2001 NBCA 117 (CanLII)

[69] As can be seen, prior to Beaulac, the members of the Supreme Court mainly attempted to articulate the principles of interpretation applicable to section 16 of the Charter and its purpose, but did not really discuss to any extent its content and scope. However, it must be acknowledged that these same issues relating, first, to the equality of official languages declared in section 2 of the Official Languages Act (Canada), R.S.C. 1970, c. O-2, which would be the forerunner of section 16, and then, to the scope of section 16 itself, have been hotly debated in several books and law reviews. Two main theories have been debated: Are the provisions of section 16 declaratory or mandatory? Do they have an independent content that by itself would give rise to a remedy on the ground that equality has not been attained and do they impose obligations on governments? Given the significant new direction in the jurisprudence set out in Beaulac, I do not think it is necessary to revisit the debate. (See B. Pelletier, “Bilan des droits linguistiques au Canada” (1995) 55: 4 R. du B. 611; Tremblay, “Language Rights” in Beaudoin and Tarnopolsky (ed.), Canadian Charter of Rights and Freedoms (1982), Montreal, Wilson & Lafleur, 559; A. Braën, “Language Rights” in M. Bastarache (ed.), Language Rights in Canada, Yvon Blais, Montreal, 1986; and M. Bastarache, “The Principle of Equality of the Official Languages” in M. Bastarache (ed.) Language Rights in Canada, Yvon Blais, Montreal, 1986, page 519, particularly at page 524.) In my opinion, the Supreme Court has answered most of these questions by fleshing out the content of the principle of equality provided for in section 16 setting substantive equality as the applicable constitutional norm, and by recognizing the binding effect of this provision according to which language rights that are institutionally based require government action for their implementation and therefore create obligations for the State.

LaRoque v. Société Radio-Canada , 2009 CanLII 35736 (ON SC)

[1] Representatives from two of the then most powerful countries in the world landed on the shores of Canada and moved inland to settle. The ethos, language and perspective of these two countries, France and England, exist even today intermingled with each other and the ever-increasing introduction of other cultures, languages and perspectives of immigrants from all over the world. And therein lies the strength of this country -- the voluntary acceptance of its obligation to strengthen the foundation of tolerance and respect and support for the cultural and linguistic diversity of its people upon which it was originally built.

[2] The significance of the two founding cultures of which language is only a part has been enshrined in the Canadian Charter of Rights and Freedoms, s. 16, wherein English and French are declared to be the official languages of Canada that have equality of status, rights and privileges with respect to their use in all institutions of the Canadian Parliament and the Government of Canada.

R. v. Larcher (September 19 2002), Ontario (ON SC) Lalonde J. [hyperlink not available]

[62] Section 16 of the Charter does not apply to the Crown’s duty to disclose, as this obligation originated in the common law and not as a form of legislative intervention. I agree with Crown counsel that language equality rights protected by s. 16 are to be read in legislative intent and not in the principles of the common law. […]

Annotations – Subsection 16(1)

R. v. Beaulac , [1999] 1 S.C.R. 768, 1999 CanLII 684 (SCC)

[24] […] The idea that s. 16(3) of the Charter, which has formalized the notion of advancement of the objective of equality of the official languages of Canada in the Jones case, supra, limits the scope of s. 16(1) must also be rejected. This subsection affirms the substantive equality of those constitutional language rights that are in existence at a given time. Section 2 of the Official Languages Act has the same effect with regard to rights recognized under that Act. This principle of substantive equality has meaning. It provides in particular that language rights that are institutionally based require government action for their implementation and therefore create obligations for the State; see McKinney v. University of Guelph, 1990 CanLII 60 (SCC), [1990] 3 S.C.R. 229, at p. 412; Haig v. Canada, 1993 CanLII 58 (SCC), [1993] 2 S.C.R. 995, at p. 1038; Reference re Public Service Employee Relations Act (Alta.), 1987 CanLII 88 (SCC), [1987] 1 S.C.R. 313; Eldridge v. British Columbia (Attorney General), 1997 CanLII 327 (SCC), [1997] 3 S.C.R. 624, at para. 73; Mahe, supra, at p. 365. It also means that the exercise of language rights must not be considered exceptional, or as something in the nature of a request for an accommodation. This being said, I note that this case is not concerned with the possibility that constitutionally based language rights may conflict with some specific statutory rights.

R. v. Mercure , [1988] 1 S.C.R. 234, 1988 CanLII 107 (SCC)

[44] If human rights legislation can be said to be fundamental or almost constitutional, it is at least equally true of the legislation [Saskatchewan Act, S.C. 1905] at issue here; for many years it was entrenched, so far as the inhabitants of the area to which it applied were concerned, since it could only be removed by Parliament, not the local legislature, something, it will be remembered, Parliament had refused to do. It formed part of the basic law of a vast area of this country from the earliest days of the founding of the nation and is rooted in a deeply sensitive reality recognized in the Canadian Charter of Rights and Freedoms, which, among our fundamental constitutional values, sets forth that English and French are the official languages of this country (s. 16(1)).

Yamba v. Canada (Minister of Justice), 2016 BCCA 219 (CanLII)

[18] Mr. Yamba takes the position that the right to a French trial provided for in s. 530 of the Criminal Code, combined with the official language rights in s. 16 of the Charter, elevates the right to a French trial in Canada to the equivalent of a constitutional right. Mr. Yamba argues that the Minister’s conclusion that access to a certified translator will address concerns regarding trial fairness in the United States does not give “due consideration” to the language rights Mr. Yamba has in Canada.

[…]

[21] To begin, it is not at all clear that the right to a trial in one of our two official languages, provided for in s. 530 of the Criminal Code, is the equivalent of a constitutional right. Although, by virtue of s. 16(1) of the Charter, English and French are the “official languages of Canada”, the Charter right to use either language in court proceedings extends only to the courts of New Brunswick and those established by Parliament (Charter, s. 19). In R. v. MacKenzie, 2004 NSCA 10 (CanLII), 181 C.C.C. (3d) 485, leave to appeal ref’d [2005] 1 S.C.R. xii, the court held that a breach of the rights established under s. 530 did not give rise to a constitutional remedy. Mr. Justice Fichaud said:

[60] The quasi-constitutional status of s. 530 invokes a broad and purposive interpretation of the statutory language. But s. 530 is not entrenched as a provision of the Charter. Its breach does not invoke s. 24(1) of the Charter.

See also: R. v. Schneider, 2004 NSCA 151 (CanLII) at para. 19, 192 C.C.C. (3d) 1, leave to appeal ref’d [2005] 2 S.C.R. xi.

Northwest Territories (Attorney General) v. Fédération Franco-Ténoise , 2008 NWTCA 6 (CanLII)

[39] Briefly, s. 16(1) of the Charter is reflected in ss. 4 and 5 of the OLA [Northwest Territories Official Languages Act]. Presumably, the reason the OLA has two sections, whereas the Charter only has one, is the limiting language of s. 5 of the OLA: “to the extent and in the manner provided in this Act”. This phrase permits the OLA to treat Aboriginal languages differently than English and French.

[…]

[123] As discussed at para. 60, official language statutes are interpreted by using Charter principles. The underlying principle is the protection of minorities: see Lalonde v. Ontario (Commission de restructuration des services de santé) (2001), 2001 CanLII 21164 (ON CA), 56 O.R. (3d) 505, 208 D.L.R. (4th) 577 at para. 125 (C.A.) (“Lalonde”) and Kilrich Industries Ltd. v. Halotier, 2007 YKCA 12 (CanLII), 161 C.R.R. (2d) 331 at para. 53 (“Halotier”). The trial judge applied principles from language rights jurisprudence, especially Beaulac where the Supreme Court confirmed, at para. 22, that substantive equality is the correct norm. We agree with the COLC [Commissioner of Official Languages of Canada] that substantive equality is the result envisaged by the legislature in enacting s. 16 of the Charter and ss. 4 and 5 of the OLA. Accordingly, the trial judge’s use of the expression “obligations of result”, was appropriate and supported by Beaulac.

R. v. MacKenzie , 2004 NSCA 10 (CanLII)

[42] Section 16(1) applies only to “institutions of the Parliament and government of Canada.”

[43] The provincial Court of Nova Scotia is not an institution of Parliament. It is established by the Nova Scotia Legislature as discussed above. That the Provincial Court applies the Criminal Code does not change this conclusion. The provincial Court also applies legislation creating provincial offences.

[…]

[46] The express reference to the institutions of New Brunswick in s. 16(2) confirms that “institutions of the Parliament and government of Canada” in ss. 16(1) excludes provincial institutions: see Moncton (City) v. Charlebois, [2001] N.B.J. No. 480 (QL) (NBCA) at para 59. There is no constitutional reference to Nova Scotia institutions equivalent to s. 16(2).

[…]

[48] Justice Bastarache stated [in Beaulac] that s. 16(1) affirms the substantive equality of “constitutional language rights”. The constitutional language rights guaranteed by s. 16(1) apply to “institutions of Parliament and Government of Canada”. The Provincial Court of Nova Scotia is not such an institution.

[49] In my view, the language guarantees of s. 16(1) did not apply to the Provincial Court’s arraignment and trial of Ms. MacKenzie. There was no breach of s. 16(1).

Canada v. Viola, 1990 CarswellNat 118F, 1990 CarswellNat 118, [1990] F.C.J. No. 1052 (FCA) [hyperlink not available]

The 1988 Official Languages Act is not an ordinary statute. It reflects both the Constitution of the country and the social and political compromise out of which it arose. To the extent that it is the exact reflection of the recognition of the official languages contained in s. 16(1) and (3) of the Canadian Charter of Rights and Freedoms, it follows the rules of interpretation of that Charter as they have been defined by the Supreme Court of Canada. […]

Ringuette v. Canada (Attorney General), 1987 CanLII 3953 (NL CA)

[31] There can be no doubt as to the importance of English and French language rights in Canada. The legislative scheme for the progressive implementation of English and French language rights in criminal proceedings in the provinces of Canada, as set out in Part XIV.1 of the Criminal Code and s. 6 of the Criminal Law Amendment Act, 1985, advances the equality of status or use of English and French in Canada and is the type of program contemplated, and one might say, encouraged by s. 16 (3) of the Charter: […]

Association des Gens de L'Air du Quebec Inc. et al. v. Lang et al., 1978 CanLII 2029 (FCA)

[p. 499] Appellants argue that the [Aeronautical Communications Standards and Procedures] Order issued by the Minister of Transport is illegal because it is contrary to the Official Languages Act [of 1969], which came into force on September 7, 1969. The main thrust of their argument on this point is easily summarized. Section 2 of the Official Languages Act states that the French and English languages possess and enjoy equality of status in Canada; the Order contradicts this principle by prohibiting the use of French in certain cases and not prohibiting the use of English. The two languages do not possess and enjoy equality of status, say appellants, if one of them may be spoken in situations where use of the other constitutes a criminal offence.

[…]

[p. 500] […] The concept of an "official language" is rather a vague one. It refers to the language used by the Government in its relations with the public. To say that French and English are official languages is simply to state that these two languages are those which are normally used in communications between the government and its citizens. In my view the impugned Order does not contradict the first part of section 2 of the Official Languages Act because, as I have already said, a language may be an official language in a country even though, for safety reasons, its use is prohibited in certain exceptional circumstances. […] In this connection it should be noted that the equality proclaimed by s. 2 cannot be an absolute equality, since this would imply, among other things, that the two languages were used with equal frequency. The equality referred to is, as I understand it, a relative equality requiring only that, in identical circumstances, the two languages receive the same treatment. If, as some people maintain, it was more dangerous to use French than English for air communications in Canada and Quebec, it seems to me that the use of French for this type of communication could be prohibited without contradicting the principle of equality enshrined in s. 2. The fact that it was more dangerous to speak French in the air than English would be a circumstance that would justify treating the two languages differently. For these reasons, I do not think the impugned Order is contrary to s. 2 of the Official Languages Act solely on the grounds that it prohibits the use of French and allows the use of English.

[p.501] […] I cannot believe that in proclaiming the equality of French and English "in all the institutions of the Parliament and Government of Canada" Parliament intended to limit the power of the Minister of Transport to issue regulations that he deemed necessary to ensure the safety of air navigation.

Fédération des francophones de la Colombie-Britannique v. Canada (Employment and Social Development), 2018 FC 530 (CanLII) [Decision available in French only – Federal Court translation will be available in September 2018]

[46] Les droits linguistiques, il faut le souligner, constituent une pierre d’assise de la société canadienne. La LLO s’affiche comme une loi fondamentale du pays, étroitement liée aux valeurs et aux droits prévus par la Constitution canadienne, et notamment par la Charte. La Cour suprême lui a reconnu un statut quasi constitutionnel (Thibodeau CSC au para 12; DesRochers c Canada (Industrie), 2009 CSC 8 (CanLII) [DesRochers CSC] au para 2; Lavigne c Canada (Commissariat aux langues officielles), 2002 CSC 53 (CanLII) [Lavigne CSC] au para 25; R c Beaulac, 1999 CanLII 684 (CSC), [1999] 1 RCS 768 [Beaulac] au para 21). De nombreuses parties de la LLO ont d’ailleurs un ancrage constitutionnel, par exemple le paragraphe 20(1) de la Charte pour la langue de service et le paragraphe 16(1) pour la langue de travail. Le paragraphe 20(1) de la Charte se lit ainsi :

20. (1) Le public a, au Canada, droit à l'emploi du français ou de l’anglais pour communiquer avec le siège ou l'administration centrale des institutions du Parlement ou du gouvernement du Canada ou pour en recevoir les services; il a le même droit à l’égard de tout autre bureau de ces institutions là où, selon le cas :	20. (1) Any member of the public in Canada has the right to communicate with, and to receive available services from, any head or central office of an institution of the Parliament or government of Canada in English or French, and has the same right with respect to any other office of any such institution where
a) l’emploi du français ou de l'anglais fait l’objet d’une demande importante;	(a) there is a significant demand for communications with and services from that office in such language; or
b) l’emploi du français et de l’anglais se justifie par la vocation du bureau.	(b) due to the nature of the office, it is reasonable that communications with and services from that office be available in both English and French.

[...]

[239] Un dernier mot sur l’objet de la loi. L’article 41 de la LLO fait état d’un « engagement » du gouvernement fédéral, soit celui de contribuer à la vitalité et l’épanouissement des CLOSM et à la promotion des deux langues officielles au Canada. Cet engagement reprend les grandes lignes d’un des attendus contenus au préambule de la loi et fait aussi écho à l’objet même de la LLO contenu à son article 2b). De plus, la partie VII de la LLO, qui s’intitule « Promotion du français et de l’anglais », a pour fondement les paragraphes 16(1) et 16(3) de la Charte, car elle a pour effet de codifier l’obligation du gouvernement fédéral de veiller au développement des communautés de langues officielles.

N.B. – Notice of Appeal was filed in Federal Court of Appeal by Commissioner of Official Languages on June 20, 2018 and by FFCB on June 21, 2018.

Doucet v. Canada , [2005] 1 F.C.R. 671, 2004 FC 1444 (CanLII)

[79] It seems clear to the Court as well that equal access to services in both official languages means equal treatment. In my opinion, the procedure established by the RCMP, described by Staff Sgt. Hastey, is totally inadequate for the Fraqncophone (sic) minority driving in the Amherst area. Motorists should not have to go out of their way or use a telephone or radio when they want to address a member of the RCMP in French. Such a service, which leaves much to be desired, absolutely fails to meet the objectives stated in section 2 of the OLA and is contrary to section 16 of the Charter, which recognizes the equality of both official languages.

Canada (Commissioner of Official Languages) v. Canada (Department of Justice), 2001 FCT 239 (CanLII)

[68] This case may be summarized as follows. By an oral agreement, the federal government delegated its powers under the CA [Contraventions Act] to the Government of Ontario. In so doing, the federal government did not include a clause guaranteeing the language rights of offenders prosecuted under the CA. Formerly, language rights were protected by sections 530 and 530.1 of the Criminal Code and section 16 of the Charter, with respect to the "judicial" aspect of prosecutions, and by Part IV of the OLA and section 20 of the Charter, with respect to the "administrative" or "extra-judicial" aspect of prosecutions.

[112] […] Under the Charter, the respondents are required to ensure that language rights are respected. Before the CA was enacted, the respondents were required to maintain equality in respect of the language rights guaranteed by the Charter and provided in the OLA and the Criminal Code. The respondents cannot limit constitutional language rights by enacting legislation transferring the administration of certain prosecutions to the provinces. If the respondents fail to respect the rights guaranteed in the Charter in enacting and applying the CA, they are in violation of the Charter. […]

[151] With respect to the judicial processing of prosecutions for federal contraventions, the language guarantees in section 16 of the Charter were protected, before the amendments to the CA, by the effect of sections 530 and 530.1 of the Criminal Code.

Schreiber v. Canada , 1999 CanLII 8898 (FC TD)

[122] Given the constitutional entrenchment of the language rights in subsections 16(1) and 20(1) of the Charter, the amendments to the Official Languages Act and the recent guidance from the Supreme Court of Canada in Beaulac v. The Queen, supra, concerning the principles to be applied in interpreting the scope and the application of language rights, I am of the opinion that the decision of Dickson J. in Kelso v. The Queen, supra is not determinative of whether Mr. Schreiber is entitled, in today's constitutional and legislative framework, to a declaration that his rights were breached. In particular, at the time Kelso v. The Queen, supra, was decided, the languages rights in question were not constitutionally entrenched and the Official Languages Act did not contain a provision analogous to section 82 which asserts the primacy of certain Parts of the Act, including Parts IV and V pertaining to communications with and services to the public and the language of work, to the extent of inconsistency between them and any other Act or Regulation. […] Furthermore, his decision was rendered prior to the proclamation of the Charter, which guaranteed in subsections 16(1) and 20(1) the equality of English and French as the official languages of Canada and the right of members of the public to communicate with and receive services in either official language from federal institutions. In the circumstances, the constitutional and legislative changes implemented following the decision in Kelso v. The Queen, supra, are significant and, in my respectful opinion, render obsolete the interpretative approach adopted by Dickson J.

[…]

[125] From a constitutional perspective, the language rights entrenched in subsections 16(1) and 20(1) of the Charter are engaged in the present proceeding. With respect to the Official Languages Act, the language rights in issue are the section 21 right to communicate with and to receive services from a federal institution and the section 34 right that English and French are the languages of work in all federal institutions, with employees having the right to use either official language in accordance with the provisions in Part V. The language rights in sections 21 and 34 of the Official Languages Act mirror the rights guaranteed respectively in subsections 20(1) and 16(1) of the Charter. The corresponding duties imposed on federal institutions in sections 22, 35 and 36 of the Official Languages Act are also relevant.

N.B. – This judgment was confirmed on appeal: Schreiber v. Canada, 2000 CanLII 16703 (FCA).

St. Jean v. R., 1986 CarswellYukon 10, [1986] Y.J. No. 76, [1987] N.W.T.R. 118, 2 Y.R. 116 (NWT YK SC) [hyperlink not available]

[33] The framers of s. 16(1) and s. 18(1) of the Charter, as well as s. 19(1), cannot have contemplated the inclusion of the Yukon Territory, or its government or legislature, in these sections, and the purposeful silence of the Charter must be respected. Moreover, the Charter goes so far as to equate the Yukon Territory with the other provinces of Canada in s. 30, in order to specifically make operative, in the Yukon Territory, those Charter sections which apply in all provinces of Canada, even where linguistic rights do not apply.

Annotations – Subsection 16(2)

Charlebois v. Saint John (City), [2005] 3 S.C.R. 563, 2005 SCC 74 (CanLII)

[13] In its preamble, the OLA [New Brunswick Official Languages Act] proclaims the purposes of the Act are expressly tied to the language guarantees and obligations enshrined in the Canadian Constitution. There is no dispute that the OLA is the province’s legislative response to its obligations under the Canadian Charter of Rights and Freedoms in relation to institutional bilingualism in New Brunswick. For ease of reference, I reproduce here the Charter provisions on official languages that specifically target the province of New Brunswick: […]

[15] Bastarache J. finds that it would have been more appropriate for the New Brunswick Court of Appeal in this case “to take a positive stance and see whether it was necessary to limit the scope of the newly defined term in light of the difficulties posed by the drafting of the OLA” (para. 32 (emphasis added)). I disagree. First, it is noteworthy that Charlebois v. Moncton dealt with s. 18(2) of the Charter; hence, the court’s finding that municipalities are “institutions” for the purpose of s. 16(2) is obiter dictum. The question as to whether municipalities are institutions within the meaning of s. 16(2) has never been determined by this Court, it is not before us on this appeal, and I express no opinion on whether or not this interpretation is correct. Second, it is also noteworthy that the province’s constitutional obligations, even as defined in Charlebois v. Moncton, do not mandate a single specific solution. As aptly noted by the court in the above-noted excerpt, there is room for flexibility. The current OLA is the province’s legislative response to its constitutional obligations. It would be inappropriate to pre-empt the analysis with a blanket presumption of Charter consistency. Daigle J.A. therefore was quite correct in pursuing the analysis. This brings us back to the question of statutory interpretation that occupies us: what approach did the province of New Brunswick adopt in respect of its municipalities to meet its constitutional obligations?

Charlebois v. Mowat , 2001 NBCA 117 (CanLII)

[16] As we have seen, the appellant challenges the validity of City of Moncton by-law Z-4 on the ground that the City Council did not meet its constitutional obligation under subsection 18(2) of the Charter to enact, print and publish its by-laws in the two official languages of the province. He relies on subsections 16(2) and 18(2) as well as section 16.1 of the Charter and submits that the City of Moncton's failure to comply with its constitutional obligation can only result in the invalidity of city by-law Z-4.

[17] This is the first case in which this Court is called upon to construe language rights set out in subsections 16(2) and 18(2) and section 16.1 of the Charter. With the exception of minority language educational rights guaranteed under section 23 of the Charter, the courts have rarely had to interpret language rights. The issue of invalidity raised by the appellant in this case requires a review of the content and scope of the language rights invoked, in particular, the meaning that should be given to subsection 18(2) and the determination of the larger objects of the rights which stem from subsection 16(2) and section 16.1 of the Charter.

[…]

[62] One cannot understand the scope of the language guarantees afforded by the Charter without taking into account the fundamental principle which embodies both the language policy implemented in New Brunswick and the commitment of the government to bilingualism and biculturalism. The constitutional principle of the equality of official languages and the equality of the two official linguistic communities and of their right to distinct institutions is the linchpin of New Brunswick's language guarantees regime.

[63] Indeed, subsection 16(2) constitutionalizes the principle of the equality of status of English and French and equal rights and privileges as to their use in all institutions of the legislature and government of New Brunswick. Subsection 16(3) states that nothing in the Charter limits the authority of the Parliament of Canada or a provincial legislature to adopt measures to advance the equality of status or use of English and French. Even though this provision does not impose a positive obligation on the Parliament of Canada or the provinces, it nonetheless recognizes the possibility for the lawmaker to create language rights other than those entrenched in the Charter. Finally, subsection 16.1(1) declares, on the one hand, that the English linguistic community and the French linguistic community have equality of status and equal rights and privileges and, on the other hand, that they have the right to distinct educational institutions and such distinct cultural institutions as are necessary for the preservation and promotion of those communities. Subsection 16.1(2) recognizes the role of the legislature and government of New Brunswick to preserve and promote the status, rights and privileges referred to in subsection 16.1(1). In short, this section constitutionalizes the principles of An Act Recognizing the Equality of the Two Official Linguistic Communities in New Brunswick, supra. The equality provided under section 16.1 is based, not on the equality of the languages as provided for in subsection 16(2), but on the equality of New Brunswick's English linguistic community and French linguistic community. Unlike subsection 16(2), this provision therefore includes collective rights whose holders are the linguistic communities themselves.

[64] Before a further exploration of the content and scope of these provisions, it is useful to review how previous Supreme Court cases have interpreted the principle of the equality of official languages under section 16 of the Charter. It is important to remember that in this case the appellant invokes the principle of the equality of official languages provided for in subsection 16(2) not only to advocate a broad and generous interpretation of the expression “statutes of the legislature” used in subsection 18(2), but also to impose on the provincial government an obligation to legislate to give full force and effect to the obligation of municipalities to enact and publish their by-laws in the two official languages.

[…]

[76] Based on the foregoing analysis of Beaulac and its impact on some of the conclusions set out in the majority judgment in Société des Acadiens, we can make the following main observations. First, equality does not have a lesser meaning in matters of language. The principle of equality entrenched in subsection 16(2) must be interpreted according to its true meaning, i.e., substantive equality is the applicable norm. Substantive equality means that language rights that are institutionally based require government action for their implementation and therefore create obligations for the government.

[77] Secondly, in re-examining certain conclusions set out in Société des Acadiens, the Supreme Court significantly watered down the principle that judicial restraint should be exercised due solely to the fact that language rights may result from political compromise by asserting that the existence of such political compromises is without consequence with regard to the scope of language rights. In addition, the Court flatly disavowed and rejected the idea that subsection 16(3) limits the scope of subsection 16(2) equality rights because it contemplates the advancement towards equality of official languages through the legislative process. Finally, the Supreme Court expressly rejected the notion that language rights must be interpreted restrictively if Société des Acadiens stands for such a proposition. On the contrary, the Court established as a rule of construction that language rights must in all cases be interpreted purposively, in a manner consistent with the preservation and development of official language communities in Canada.

[…]

[105] In R. v. Gautreau (1990), (1990), 101 N.B.R. (2d) 1, Richard, C.J. of the Court of Queen's Bench held that the provincial police force was an institution within the meaning of subsections 16(2) and 20(2) of the Charter. He relied on a passage from an article by Foucher and Snow in which they propose an approach and tests for determining whether an entity is an institution of the legislature or government within the meaning of subsection 16(2). Among these criteria, they suggest that the entity must be “a creation of the state and must owe its very existence to a public Act” and that “the prime factor remains the legal source of its powers”. (See: “Le régime juridique des langues dans l'administration publique au Nouveau-Brunswick” (1983), 24 C. de D. 81.) In my opinion, the criteria proposed by Foucher and Snow are essentially the same as those retained by La Forest, J. in Godbout.

[106] Based on the foregoing analysis, I conclude that New Brunswick municipalities are subject to the Charter and, as a result, the acts of the City of Moncton, in this case, its failure to comply with the obligation provided for in subsection 18(2), is subject to a Charter review. In short, municipalities in New Brunswick are creations of the province, exercise governmental powers conferred upon them by the legislature or government, and derive all their powers from statute. They must also act within the limitations imposed by their enabling statute and their functions are clearly governmental in nature.

[107] Applying the same criteria used to identify the structures or functions of governmental entities within the meaning of paragraph 32(1)(b) to the expression “institutions of the legislature and government” as used in subsection 16(2), I believe that the scope of this latter expression can be determined on the basis of these same parameters. On the basis of a broad, generous and purposive interpretation of subsection 16(2), I conclude, on the grounds already stated, that municipalities are “institutions of the legislature and government of New Brunswick” within the meaning of subsection 16(2) of the Charter.

N.B. – See the Supreme Court of Canada’s comments in Charlebois v. Saint John (City), [2005] 3 S.C.R. 563, 2005 SCC 74 (CanLII) at para 15 on this judgment.

International Association of Fire Fighters (IAFF), Local 999 v. Moncton (City), 2017 CanLII 20335 (NB LA)

[119] The Employer’s legal counsel devoted a significant amount of his argument to the proposition that the City, a municipal corporation, is an “institution” within the meaning of section 16(2) of the Charter, and is thus bound by this provision. An arbitration board’s jurisdiction to consider such issues are no longer in doubt as a result of Weber vs. Ontario Hydro 1995 CanLII 108 (SCC), [1995] 2 SCR 929 (see also Brown & Beatty, par 2:2051)

[…]

[121] If it is determined that the City is bound by section 16(2), is it then obligated by section 20(2) of the Charter to provide services in both official languages? The provision states:

20(2) Any member of the public in New Brunswick has the right to communicate with, and to receive available services from, any office of an institution of the legislature or government of New Brunswick in English or French. (emphasis added)

[122] To provide these linguistic services the City must realistically require certain employees to be bilingual. It is indeed the Employer’s position that not only must an AFPO [Assistant Fire Prevention Officer] be bilingual, in fact all front line employees of the MFD [Moncton Fire Department] should be so as well.

[…]

[129] The Mowat interpretation of the word “institution” was distinguished by the New Brunswick Court of Appeal in the 2007 decision of R. vs. McGraw, 2007 NBCA 11 (CanLII), 312 NBR (2d) 142, where the Court indicated that the state of the law on this issue was unsettled.

[130] It is accepted that where a court shares jurisdiction to interpret statutes, including the Charter, prior judicial decisions as to the meaning of such legislation or other propositions of applicable law are accepted as binding (see Brown & Beatty, par 1:3000). The difficulty encountered by the Board with the Employer’s submissions is that the interpretation of the word “institution”, as found in the Charter, has been considered obiter dicta in subsequent court decisions at the same or higher level. Mr Justice Daigle in Saint John had an opportunity to explain his comments in Mowat but broached the issue from a different perspective.

[131] The Board finds as a result that it is not faced with an accepted and binding interpretation of the Courts of New Brunswick that municipalities are indeed institutions within the meaning of section 16(2) of the Charter. In addition, it does not find it a reasonable construct that all municipalities in New Brunswick, irrespective of its linguistic composition, are currently obligated to provide municipal services in both official languages by virtue of the Charter provisions. The decision certainly does not compel it to carve out either the MFD or its fire prevention services.

[132] We adopt the comments of Madame Justice Charron, that the OLA is the current response of the Province of New Brunswick to its constitutional obligations. Removing these elements from the Employer’s Charter theory renders any derivative premise that the City is bound to provide both linguistic services to its residents by virtue of section 16(2) or section 20(2) of the Charter non-imperative. We turn now to the City’s internal response. […]

Annotations – Subsection 16(3)

Conseil scolaire francophone de la Colombie-Britannique v. British Columbia , [2013] 2 S.C.R. 774, 2013 SCC 42 (CanLII)

[55] Finally, the appellants urge this Court to adopt an approach to these issues based on Charter values and constitutional principles. The appellants argue that the Charter requires that legislation, including received legislation, be interpreted in a manner consistent with Charter values. The Court has of course repeatedly noted the role that Charter values play in the evolution of the common law and in statutory interpretation: RWDSU v. Dolphin Delivery Ltd., 1986 CanLII 5 (SCC), [1986] 2 S.C.R. 573; R. v. Zundel, 1992 CanLII 75 (SCC), [1992] 2 S.C.R. 731; R. v. National Post, 2010 SCC 16 (CanLII), [2010] 1 S.C.R. 477. The Charter explicitly provides that English and French are the official languages of Canada: s. 16. The Court has also recognized the important role of linguistic minorities in Canada: Reference re Secession of Quebec, 1998 CanLII 793 (SCC), [1998] 2 S.C.R. 217, at para. 79.

[56] However, the Charter also reflects a recognition that Canada is a federation and that each province has a role to play in the protection and advancement of the country’s official languages. This is evident from ss. 16 to 20, which require bilingualism in the federal government, in Parliament, in courts established by Parliament, and in the province of New Brunswick. The Charter does not require any province other than New Brunswick to provide for court proceedings in both official languages. In addition, s. 16(3) provides that the legislatures may act to advance the use of English and French. In my view, therefore, while it is true that the Charter reflects the importance of language rights, it also reflects the importance of respect for the constitutional powers of the provinces. Federalism is one of Canada’s underlying constitutional principles: Reference re Secession of Quebec, at paras. 55-60. Thus, it is not inconsistent with Charter values for the British Columbia legislature to restrict the language of court proceedings in the province to English.

[57] This being said, in light of s. 16(3) of the Charter, which specifically provides that provincial legislatures may advance the equality of status of English and French, it would be open to the British Columbia legislature to enact legislation, like that proposed in 1971, to authorize civil proceedings in French. Such legislation would no doubt further the values embodied in s. 16(3), which protects legislative initiatives intended to increase the equality of the official languages but does not, as this Court has already held, confer any rights. However, given the absence of any such initiative by the British Columbia legislature, it is not possible for this Court to impose one on it.

R. v. Beaulac , [1999] 1 S.C.R. 768, 1999 CanLII 684 (SCC)

[22] The Official Languages Act of 1988 and s. 530.1 of the Criminal Code, which was adopted as a related amendment by s. 94 of the same Official Languages Act, constitute an example of the advancement of language rights through legislative means provided for in s. 16(3) of the Charter; see Simard, supra, at pp. 124-25. The principle of advancement does not however exhaust s. 16 which formally recognizes the principle of equality of the two official languages of Canada. It does not limit the scope of s. 2 of the Official Languages Act. Equality does not have a lesser meaning in matters of language. With regard to existing rights, equality must be given true meaning. This Court has recognized that substantive equality is the correct norm to apply in Canadian law. Where institutional bilingualism in the courts is provided for, it refers to equal access to services of equal quality for members of both official language communities in Canada. Parliament and the provincial legislatures were well aware of this when they reacted to the trilogy (House of Commons Debates, vol. IX, 1^st sess., 33^rd Parl., May 6, 1986, at p. 12999) and accepted that the 1988 provisions would be promulgated through transitional mechanisms and accompanied by financial assistance directed at providing the required institutional services.

[…]

[24] Though constitutional language rights result from a political compromise, this is not a characteristic that uniquely applies to such rights. A. Riddell, in “À la recherche du temps perdu: la Cour suprême et l’interprétation des droits linguistiques constitutionnels dans les années 80” (1988), 29 C. de D. 829, at p. 846, underlines that a political compromise also led to the adoption of ss. 7 and 15 of the Charter and argues, at p. 848, that there is no basis in the constitutional history of Canada for holding that any such political compromises require a restrictive interpretation of constitutional guarantees. I agree that the existence of a political compromise is without consequence with regard to the scope of language rights. The idea that s. 16(3) of the Charter, which has formalized the notion of advancement of the objective of equality of the official languages of Canada in the Jones case, supra, limits the scope of s. 16(1) must also be rejected. This subsection affirms the substantive equality of those constitutional language rights that are in existence at a given time. Section 2 of the Official Languages Act has the same effect with regard to rights recognized under that Act. […]

Société des Acadiens v. Association of Parents , [1986] 1 S.C.R. 549, 1986 CanLII 66 (SCC)

[68] I think it is accurate to say that s. 16 of the Charter does contain a principle of advancement or progress in the equality of status or use of the two official languages. I find it highly significant however that this principle of advancement is linked with the legislative process referred to in s. 16(3), which is a codification of the rule in Jones v. Attorney General of New Brunswick, 1974 CanLII 164 (SCC), [1975] 2 S.C.R. 182. The legislative process, unlike the judicial one, is a political process and hence particularly suited to the advancement of rights founded on political compromise.

MacDonald v. City of Montreal , [1986] 1 S.C.R. 460, 1986 CanLII 65 (SCC)

[104] This incomplete but precise scheme [of s. 133 of the Constitution Act, 1987] is a constitutional minimum which resulted from a historical compromise arrived at by the founding people who agreed upon the terms of the federal union. […] It is a scheme which, being a constitutional minimum, not a maximum, can be complemented by federal and provincial legislation, as was held in the Jones case. […]

Jones v. A.G. of New Brunswick , [1975] 2 S.C.R. 182, 1974 CanLII 164 (SCC)

[p. 195] Section 91(1) aside, there are no express limitations on federal legislative authority to add to the range of privileged or obligatory use of English and French in institutions or activities that are subject to federal legislative control. Necessary implication of a limitation is likewise absent because there would be nothing inconsistent or incompatible with s. 133, as it relates to the Parliament of Canada and to federal Courts, if the position of the two languages was enhanced beyond their privileged and obligatory use under s. 133. It is one thing for Parliament to lessen the protection given by s. 133; that would require a constitutional amendment. It is a different thing to extend that protection beyond its present limits.

R. v. MacKenzie, 2004 NSCA 10 (CanLII)

[51] Section 16(3) codifies the “principle of advancement” from Jones v. Attorney General of New Brunswick, [1975] 2 S.C.R. 182. In Jones, Chief Justice Laskin for the Court at pp. 189 - 90 stated that the residual power “for the peace, order and good government of Canada” under the opening words of s. 91 of the Constitution Act, 1867 entitled Parliament to enact official languages legislation to advance usage of English and French in Federal institutions.

[…]

[55] Section 16(3) renders intra vires legislation of Parliament or a provincial legislature which advances the equality and status of use of English and French. Section 16(3) does not constitutionally entrench such legislation or incorporate it into the Charter. Breach of such legislation does not access s. 24(1) of the Charter.

[…]

[57] In my view section 16(3) of the Charter has not constitutionalized s. 530 of the Criminal Code. The violation of s. 530 in this case did not constitute a violation of s. 16(3) of the Charter.

Lalonde v. Ontario (Commission de restructuration des services de santé), 2001 CanLII 21164 (ON CA)

[89] The Charter contemplates the advancement of the equality of status of English and French not only by Parliament but also by the provincial legislatures:

16(3) Nothing in this Charter limits the authority of Parliament or a legislature to advance the equality of status or use of English and French.

Section 16(3) applies to Ontario.

Issue 2: Does s. 16(3) of the Charter protect the status of Montfort as a francophone institution?

[90] Montfort adopts an argument based on s. 16(3) of the Charter advanced by two of the interveners, the Commissioner of Official Languages of Canada and La Fédération des communautés francophones et acadienne du Canada. They submit that once the province established Montfort as a homogeneous francophone institution, s. 16(3) provided a constitutional shield, limiting the right of Ontario to affect or reduce that status. Section 16(3) embodies the constitutional objective of advancing toward the substantive equality of Canada's two official languages. This objective, it is submitted, is to be achieved by means of a "ratchet" principle. It is argued that once Ontario takes a step in the direction of advancing the substantive equality of French, s. 16(3) "ratchets" that step to the level of a constitutional right, limiting any retreat from that advance. Although not constitutionally required, provincial measures advancing linguistic equality are responsive to a constitutional aspiration. Once taken, steps towards substantive linguistic equality gain constitutional protection, and advances can only be withdrawn if properly justified. It is submitted that this interpretation of s. 16(3) is supported by the principle, elaborated below, that language rights are to be given a large and liberal interpretation. Reliance is also placed upon the unwritten constitutional principle of respect for and protection of minorities as an interpretive aid.

[…]

[92] We are not persuaded that s. 16(3) includes a "ratchet" principle that clothes measures taken to advance linguistic equality with constitutional protection. Section 16(3) builds on the principle established in Jones v. New Brunswick (A.G.), [1975] 2 S.C.R. 182 that the Constitution's language guarantees are a "floor" and not a "ceiling" and reflects an aspirational element of advancement toward substantive equality. The aspirational element of s. 16(3) is not without significance when it comes to interpreting legislation. However, it seems to us undeniable that the effect of this provision is to protect, not constitutionalize, measures to advance linguistic equality. The operative legal effect of s. 16(3) is determined and limited by its opening words: "Nothing in this Charter limits the authority of Parliament or a legislature". Section 16(3) is not a rights-conferring provision. It is, rather, a provision designed to shield from attack government action that would otherwise contravene s. 15 or exceed legislative authority. See André Tremblay and Michel Bastarache, "Language Rights" in Gérald-A. Beaudoin & Ed Ratushny eds., The Canadian Charter of Rights and Freedoms, 2nd ed. (1989) at 675:

What was actually desired with this provision [s. 16(3)] was to assure that the power to provide a privileged status for French and English in a statute could not be challenged by virtue of the rights forbidding discrimination contained in section 15 of the Charter. Section 16(3) could thus prevent the measures designed to promote equal access to both official languages from being struck down.

[93] Nor do we find any support for the "ratchet" principle in the case law. The passage relied on from Société des Acadiens is found in a dissenting judgment that focuses on s. 19(2) and the specific obligations that ss. 16-20 of the Charter impose on New Brunswick.

[94] This argument is made on the assumption that government was under no obligation to create Montfort. This court has held in another context that in the absence of a constitutional right that requires the government to act in the first place, there can be no constitutional right to the continuation of measures voluntarily taken, even where those measures accord with or enhance Charter values. In Ferrell v. Ontario (Attorney General) (1998), 1998 CanLII 6274 (ON CA), 42 O.R. (3d) 97, 168 D.L.R. (4th) 1 (C.A.), a case dealing with the repeal of a statute intended to combat systemic discrimination in employment, Morden A.C.J.O. stated as follows at p. 110 O.R.:

If there is no constitutional obligation to enact the 1993 Act in the first place I think it is implicit, as far as the requirements of the constitution are concerned, that the legislature is free to return the state of the statute book to what it was before the 1993 Act, without being obligated to justify the repealing statute under s. 1 of the Charter.

. . . . .

It would be ironic, in my view, if legislative initiatives such as the 1993 Act with its costs and administrative structure should, once enacted, become frozen into provincial law and susceptible only of augmentation and immune from curtailing amendment or outright appeal without s. 1 justification.

[95] To summarize, Montfort is a public hospital that provides services in French. Section 16(3) of the Charter does not constitutionally enshrine Montfort because it is not a rights-conferring provision. Because Montfort is not constitutionally protected by s. 16(3), Ontario can, subject to what follows, alter the status of Montfort as a community hospital without offending s. 16(3).

[…]

[129] The F.L.S.A. [French Language Services Act] is an example of the provincial legislature of Ontario using s. 16(3) to build on the language rights contained in the Constitution Act, 1867 and the Charter to advance the equality of status or use of the French language. The aspirational element contained in s. 16(3) - advancing the French language toward substantive equality with the English language in Ontario - is of significance in interpreting the F.L.S.A.

[…]

[140] In addition to the aspirational element of s. 16(3), the principle of respect for and protection of the francophone minority in Ontario, and the broad and purposive interpretation to be given to language rights, general principles of statutory interpretation also apply. […]

Charlebois v. Mowat , 2001 NBCA 117 (CanLII)

[…]

[77] Secondly, in re-examining certain conclusions set out in Société des Acadiens [in Beaulac], the Supreme Court significantly watered down the principle that judicial restraint should be exercised due solely to the fact that language rights may result from political compromise by asserting that the existence of such political compromises is without consequence with regard to the scope of language rights. In addition, the Court flatly disavowed and rejected the idea that subsection 16(3) limits the scope of subsection 16(2) equality rights because it contemplates the advancement towards equality of official languages through the legislative process. Finally, the Supreme Court expressly rejected the notion that language rights must be interpreted restrictively if Société des Acadiens stands for such a proposition. On the contrary, the Court established as a rule of construction that language rights must in all cases be interpreted purposively, in a manner consistent with the preservation and development of official language communities in Canada.

Westmount (Ville de) v. Québec (Procureur Général du), 2001 CanLII 13655 (QC CA) [judgment available in French only]

[OUR TRANSLATION]

[211] She [the Commissioner of Official Languages] argues that Bill 171 narrows the rights of the Anglophone minority and therefore violates s. 16(3) of the Canadian Charter, which crystalizes the language rights of minority communities.

[212] The respondent Attorney General counters that s. 16(3) of the Canadian Charter does not create an independent language right and at most constitutes an invitation to improve institutional bilingualism in provinces other than New Brunswick. Moreover, at the hearing, counsel for the Commissioner acknowledged that s. 16(3) of the Canadian Charter does not allow the creation of a new language right but is simply intended to protect those rights already conferred.

[213] In this case, the cities with [translation] “bilingual status” have been transformed into [translation] “bilingual boroughs”. Bill 170 expressly provides that this status cannot be revoked except upon their request.

[214] The appellants point out that the “Anglophone” cities offered much more extensive services than those expressly authorized by s. 29.1 and the other provisions of the Charter of the French Language, which is accurate. However, Bill 171 in no way changes their legal status, since the bilingual boroughs retain the same rights and privileges previously belonging to the bilingual or so-called “Anglophone” cities under the Charter of the French Language.

[215] The appellants complain that it would be easier to revoke bilingual city status in the future. This allegation is by no means supported by the evidence. Moreover, if the government acted in this manner, it would then be possible to make the claims that the Commissioner is currently making.

[216] The legal status of the appellant cities therefore remains unchanged in terms of language rights, since the Charter of the French Language continues to govern the use of French and English in municipal institutions. As a side remark, we note that the same holds true for s. 1 of Bill 170, which has been the subject of harsh criticism from the appellants. This section declares that Montréal is a French-speaking city. However, this purely declaratory provision neither adds to nor detracts from the rules already established by the Charter of the French Language, which moreover prompted the trial judge to write that it was superfluous and needlessly [translation] “provocative”. In any event, it cannot be concluded from this, as some of the appellants argue, that this section shows that the government is not really trying to reform municipal structures, but is pursuing an unstated goal, that of depriving the Anglophone community of its institutions.

[217] We are therefore of the opinion, subject to the reservation already expressed with regard to the locus standi of the Commissioner of Official Languages, that her arguments on the merits must be dismissed, in the circumstances, without costs.

R. v. Simard, [1995] O.J. No. 3989, 27 O.R. (3d) 116 (ON CA) [hyperlink not available]

[13] These sections [sections 530 and 530.1 of the Criminal Code] illustrate the principle of advancement of the equality of status or use of the two official languages pursuant to s. 16(3) of the Charter according to which the Parliament and the legislatures have the authority to encourage such advancement. They go far beyond the minimum language requirements of the constitutional provisions by acknowledging the right of the accused to have a judge, a jury and a prosecutor who speak the official language of the accused.

Reference re French Language Rights of Accused in Saskatchewan Criminal Proceedings , 1987 CanLII 204 (SK CA)

[pp. 26-27] On the whole, therefore, the better view of the matter in our opinion is this: Parliament and the Legislatures undoubtedly, by virtue of ss. 16(3), possess the power to move official language rights beyond those entrenched in the Charter, but neither, when doing so, is relieved by ss. 16(3) of having to respect the fundamental rights and freedoms found elsewhere in the Charter. Such relief as may be available to them under ss. 1 and 33, is, of course, another matter altogether, although one might add that the existence of these sections serves to remove some of the obstacles to official language advancement which, having regard particularly to s. 15, might otherwise be encountered.

We conclude, therefore, that Parliament was competent to enact the Criminal Law Amendment Act pursuant to s. 91(27) of the Constitution Act 1867, even though the purposes of the Act include advancing the status or use of the French language beyond that provided for by ss. 16 through 20 of the Charter, but that in all respects the Act, remains subject to the other provisions of the Charter, including s. 15.

N.B. – Notice of Appeal was filed in Federal Court of Appeal by Commissioner of Official Languages on June 20, 2018 and by FFCB on June 21, 2018.

R. v. Gaudet , 2010 NBQB 27 (CanLII)

[31] Section 16(3) formalizes the principle of advancement or progression towards the equality of status or use of the two official languages of Canada. This provision protects against potential challenges to government measures that might otherwise be ruled contrary to s. 15(1). Like other provisions that guarantee language rights, s. 16 and 20 are not subject to the notwithstanding clause entrenched in s. 33. This means that neither Parliament nor the legislature of New Brunswick can exclude itself from their application.

R. v. Pare , 1986 CanLII 1189 (BC SC)

[27] I have already concluded that Part XIV.1 of the Criminal Code constitutes a legislative scheme which advances the equality of status or use of English or French in Canada and I have accordingly concluded that s. 16(3) of the Charter when read with the other language provisions of the Charter and the Constitution Act, 1982, preclude the application of s. 15 of the Charter in cases such as this.

[28] I am supported in the conclusion that I have reached by the judgments of Beetz J. and Craig J.A. Their judgments make it clear that the advancement of language rights is best left to the legislators who are better suited to dealing with the development of political rights than are the courts. They specifically note that this principle is reflected in s. 16(3) which links the advancement of language rights to the legislative process. As such this reasoning indicates that once a legislative scheme has been properly characterized as legislation which advances the equality of status and use of the two official languages s. 16(3) should be interpreted as establishing that such a scheme cannot offend against the provisions of s. 15 of the Charter. If this is not so and s. 16(3) does not operate to guard such schemes against other provisions of the Charter the result would be to discourage Parliament from taking action to progressively implement language rights in Canada as a whole, an approach which appears to be a realistic one having regard to the nature of the rights and the distribution of members of minority language throughout the nation.

R. v. Gaudet , 2009 NBPC 8 (CanLII)

[18] As I indicated previously, the charge under s. 253(b) which Mr. Gaudet is facing is being prosecuted under the Criminal Code of Canada. As a result, the remedy applied by Chief Justice Drapeau in McGraw is not available in the instant case. Can I, in the circumstances, invoke the provisions of s. 20(2), and therefore apply the remedies provided by s. 24(2) of the Charter to correct the breach of s. 31(1) in this matter? In order to do this, in my opinion, it must be determined whether s. 20(2) of the Charter imposes, by implication, the informational duty explicitly recognized in s. 31(1) of the Official Languages Act and whether the last-mentioned provision was constitutionalized by s. 16(3) of the Charter.

[…]

[23] With the above in mind, it would be paradoxical, to say the least, if government authorities had more or fewer duties depending on whether the prosecution was conducted under a provincial statute or under the Criminal Code or, conversely, if a member of the public had more or fewer rights depending on whether he had violated a provincial statute or a federal statute. In my opinion, such a result offends the very foundation of linguistic rights and the broad interpretation of the laws controlling these rights. The conclusion that s. 20(2) of the Charter imposes, by implication, the informational duty explicitly recognized in s. 31(1) of the Official Languages Act and that the last-mentioned provision was constitutionalized by s. 16(3) is the conclusion which is in accord with a broad interpretation of lingustic rights and with the very foundation of these rights.

16.1. (1) English and French linguistic communities in New Brunswick

16.1. (1) The English linguistic community and the French linguistic community in New Brunswick have equality of status and equal rights and privileges, including the right to distinct educational institutions and such distinct cultural institutions as are necessary for the preservation and promotion of those communities.

16.1. (2) Role of the legislature and government of New Brunswick

16.1. (2) The role of the legislature and government of New Brunswick to preserve and promote the status, rights and privileges referred to in subsection (1) is affirmed.

[LAST UPDATE: JUNE 2017]

Annotations – Subsection 16.1(1)

Charlebois v. Saint John (City), [2005] 3 S.C.R. 563, 2005 SCC 74

[13] In its preamble, the OLA [New Brunswick Official Languages Act] proclaims the purposes of the Act are expressly tied to the language guarantees and obligations enshrined in the Canadian Constitution. There is no dispute that the OLA is the province’s legislative response to its obligations under the Canadian Charter of Rights and Freedoms in relation to institutional bilingualism in New Brunswick. For ease of reference, I reproduce here the Charter provisions on official languages that specifically target the province of New Brunswick: […]

Charlebois v. Mowat , 2001 NBCA 117 (CanLII)

The Scope of Subsection 16(2) and Section 16.1 of the Charter

[…]

The Scope of Section 16.1 of the Charter

[78] Lastly, we have to consider the scope of section 16.1. To the same extent as subsection 16(2), the principle of the equality of the English linguistic community and the French linguistic community in New Brunswick entrenched in section 16.1 of the Charter is a telling indication of the purpose of language guarantees and a source of guidance in the interpretation of other Charter provisions, including subsection 18(2). By deciding in 1993 to entrench the principle of the equality of the two communities in the Charter as a fundamental characteristic of the province, the framers intended to show their commitment towards the equality of official language communities. This provision reaffirms and embodies the commitment made by the lawmakers of this province in 1981 when they enacted An Act Recognizing the Equality of the Two Official Linguistic Communities in New Brunswick. (See Journals of the Legislative Assembly of the Province of New Brunswick, 1992 Session, December 4, 1992, at pages 4708 to 4721.)

[79] As I have already noted, section 16.1 includes, as opposed to subsection 16(2), a collective and community component as it seeks the equality of communities. Equally, it expressly acknowledges the role of the legislature and government to preserve and promote the equality of official language communities. As a result, it is a unique set of constitutional provisions quite peculiar to New Brunswick which places the province on a unique plane among Canadian provinces.

[80] In my opinion, the interpretation of section 16.1 is related to the interpretation of subsection 16(2) and the conclusions set out by the Supreme Court in Beaulac as to the nature and scope of the principle of equality are applicable to section 16.1. Its purpose seems clear to me. While different rights flow from the collective aspect of the equality guaranteed, its purpose is similar to that which the courts have ascribed to section 16. The purpose of this provision is to maintain the two official languages, as well as the cultures that they represent, and to encourage the flourishing and development of the two official language communities. It is remedial in nature and has concrete consequences. It imposes on the provincial government an obligation to take positive measures to ensure that the minority official language community has equality of status and equal rights and privileges with the majority official language community. The obligation imposed on the government derives both from the remedial nature of subsection 16.1(1), in recognition of past inequalities that have gone unredressed, and the constitutional commitment made by the government to preserve and promote the equality of official language communities. The principle of the equality of the two language communities is a dynamic concept. It implies provincial government intervention which requires at a minimum that the two communities receive equal treatment but that in some situations where it would be necessary to achieve equality, that the minority language community be treated differently in order to fulfill both the collective and individual dimensions of a substantive equality of status. This last requirement derives from the underpinning of the principle of equality itself.

R. v. Gaudet , 2010 NBQB 27 (CanLII)

[30] Section 16.1 of the Charter, adopted in 1993, recognizes the equality of status and equal rights and privileges of the French linguistic community and of the English linguistic community in New Brunswick and bears witness to the commitment of the framers to the equality of the official language communities. It is a valuable indicator of the very purpose of language guarantees as well as an interpretive aid for the other provisions of the Charter.

Small & Ryan v. New Brunswick (Minister of Education), 2008 NBQB 201 (CanLII)

Charter Challenge

[3] The applicants say that the Minister’s decision infringed their rights under the Canadian Charter of Rights and Freedoms, sections 16 (Official Languages), 16.1 (English and French Linguistic Communities in New Brunswick) and 23 (Minority Language Educational Rights).

[4] The Supreme Court of Canada has made clear regarding section 23(2) of the Charter that:

”… it would be contrary to the purpose of the provision to equate immersion with minority language education.”

Solski (Tutor of) v. Québec (A.G.), 2005 SCC 14 (CanLII), [2005] 1 S.C.R. 201 at para. 50; see also Gosselin (Tutor of) v. Québec (A.G.), [2005] S.C.R. 238 at paras 28-34.

[5] Thus in my opinion Early French Immersion for anglophones in New Brunswick, the linguistic majority in this province, is not protected by the Charter provision for Minority Language Educational Rights. As well, I am not convinced that the general words regarding bilingualism and linguistic communities in section 16 and 16.1 of the Charter provide any legal basis to challenge the decision of Minister of Education regarding Early French Immersion.

Annotations – Subsection 16.1(2)

Charlebois v. Mowat , 2001 NBCA 117 (CanLII)

[…]

The Scope of Section 16.1 of the Charter

[78] Lastly, we have to consider the scope of section 16.1. To the same extent as subsection 16(2), the principle of the equality of the English linguistic community and the French linguistic community in New Brunswick entrenched in section 16.1 of the Charter is a telling indication of the purpose of language guarantees and a source of guidance in the interpretation of other Charter provisions, including subsection 18(2). By deciding in 1993 to entrench the principle of the equality of the two communities in the Charter as a fundamental characteristic of the province, the framers intended to show their commitment towards the equality of official language communities. This provision reaffirms and embodies the commitment made by the lawmakers of this province in 1981 when they enacted An Act Recognizing the Equality of the Two Official Linguistic Communities in New Brunswick. (See Journals of the Legislative Assembly of the Province of New Brunswick, 1992 Session, December 4, 1992, at pages 4708 to 4721.)

[…]

[115] At the same time, subsection 16.1(2) of the Charter expressly provides that it is “the role of the legislature and government of New Brunswick to preserve and promote” the status, rights and privileges of the two official language communities. This provision encompasses, like section 23 of the Charter, a collective dimension and imposes on the government the obligation to act positively to ensure the respect and substantive application of these language guarantees. In addition, section 3 of An Act Recognizing the Equality of the Two Official Linguistic Communities in New Brunswick, the principles of which were entrenched in section 16.1 of the Charter, is more explicit about the commitment of the government and states that the government “shall, in its proposed laws, in the allocation of public resources and in its policies and programs, take positive actions to promote the cultural, economic, educational and social development of the official linguistic communities”.

[116] This provision is the legislative confirmation of the obligation of the provincial government to act positively. By its legislative and constitutional commitments, New Brunswick has accepted that is has the responsibility to take all possible steps for the preservation and development of the two official language communities. By that, it recognizes that the two languages and the two cultures they transmit constitute the common heritage of all persons in New Brunswick, and they must be able to enjoy an atmosphere conducive to development. (See: Government of New Brunswick, Towards Equality of Official Languages in New Brunswick, supra, at page 413.)

17. (1) Proceedings of Parliament

17. (1) Everyone has the right to use English or French in any debates and other proceedings of Parliament.

17. (2) Proceedings of New Brunswick legislature

17. (2) Everyone has the right to use English or French in any debates and other proceedings of the legislature of New Brunswick.

[LAST UPDATE: JUNE 2017]

N.B. – See case law on section 133 of the Constitution Act, 1867 and section 23 of the Manitoba Act, 1870.

Annotations – General

New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly), [1993] 1 S.C.R. 319, 1993 CanLII 153 (SCC)

[75] The same may be said of ss. 17 and 18 of the Charter. Section 17, referring to the right to use English or French in debate, uses the word Parliament and s. 17(2), referring to the same right in the legislative assembly of New Brunswick, uses the term "legislature of New Brunswick". Section 18 uses the same language to refer to the "statutes, records and journals" of Parliament and the legislature of New Brunswick. Section 17 uses the term "legislature" to refer to the Assembly, while s. 18 uses the word "legislature" to refer to both the legislature proper (i.e., the body that enacts statutes) and the Assembly (i.e., the body that keeps a "journal").

[76] While these examples show that usage is not completely consistent, they by no means take away from the general rule that "legislature" in s. 32 [of the Charter] means the body that enacts legislation. It must be observed that there is no single meaning of the term "legislature" which can be applied to both s. 33 on the one hand, and ss. 5, 17 and 18 on the other. Indeed, there is no single interpretation of the word "legislature" that can be used with complete precision within s. 18 itself. In s. 33, "legislature" clearly means the body capable of enacting legislation, whereas in ss. 5 and 17, the context makes it clear that it is the House itself that is intended. Section 18 refers to the "statutes, records and journals" of the legislature. But, strictly speaking, the "legislature" enacts "statutes" whereas the "Assembly" keeps a "journal". This lack of perfectly consistent usage is not surprising given the nature of these documents and particularly their attempt to set out in relatively few words concepts which are historically charged with meaning. It also underlines the point that, in interpreting these provisions, very careful attention must be paid to the contextual and purposive considerations outlined earlier in these reasons.

[77] In this regard, there are particular historical and structural considerations that must be borne in mind with respect to ss. 5, 17 and 18 of the Charter. These sections are extensions of provisions originally found in the British North America Act, 1867. In the case of s. 5, it is modeled on the now repealed s. 20 of the British North America Act, 1867. That section referred to there being a session of the Parliament of Canada, and of course, the use of the term Parliament of Canada was convenient given the requirement to include both the Senate and the House of Commons. The use of the words "session" and "sitting" in that section also made the intention to refer only to the House and the Senate quite clear even though the word used, i.e., "Parliament" was not strictly correct.

[78] With respect to ss. 17 and 18, they are modeled on the original s. 133, which rather interestingly, provided: "Either the English or the French Language may be used by any Person in the Debates of the Houses of the Parliament of Canada and of the Houses of the Legislature of Quebec", and further that "[t]he Acts of the Parliament of Canada and of the Legislature of Quebec shall be printed and published in both Languages". The original section clearly distinguished between "proceedings before the House" and "enactments of the legislature", but this clarity was lost in the updated versions.

[79] Sections 5, 17 and 18 are found in areas of the Charter which are excluded from the override provisions of s. 33 of the Charter. This suggests that they are in a different category than the rights contained in ss. 2 and 7 through 15, and may explain, if not entirely excuse, the inconsistency in the use of language between these sections and other places in the Charter and the Constitution Act generally.

[80] To summarize, the language, structure and history of the constitutional text are strongly suggestive of the conclusion that the word "legislature" in s. 32 in general means the body capable of enacting legislation and not its component parts taken individually. There are certain provisions in the Charter, notably ss. 5, 17 and 18, in relation to which the specific context requires a different meaning. However, this case concerns whether the rights guaranteed by s. 2 of the Charter apply to the House of Assembly and I conclude that s. 32, properly interpreted, makes it clear that they do not.

Annotations – Subsection 17(1)

Société des Acadiens v. Association of Parents , [1986] 1 S.C.R. 549, 1986 CanLII 66 (SCC)

[50] Subject to minor variations of style, the language of ss. 17, 18 and 19 of the Charter has clearly and deliberately been borrowed from that of the English version of s. 133 of the Constitution Act, 1867 of which no French version has yet been proclaimed pursuant to s. 55 of the Constitution Act, 1982. It would accordingly be incorrect in my view to decide this case without considering the interpretation of s. 133 which provides:

133. Either the English or the French Language may be used by any Person in the Debates of the Houses of the Parliament of Canada and of the Houses of the Legislature of Quebec; and both those Languages shall be used in the respective Records and Journals of those Houses; and either of those Languages may be used by any Person or in any Pleading or Process in or issuing from any Court of Canada established under this Act, and in or from all or any of the Courts of Quebec.

The Acts of the Parliament of Canada and of the Legislature of Quebec shall be printed and published in both those Languages.

[51] The somewhat compressed and complicated statutory drafting exemplified in s. 133 has been shortened and simplified in ss. 17 to 19 of the Charter, as befits the style of a true constitutional instrument. The wording of the relevant part of s. 133 ("may be used by any Person or in any Pleading or Process in or issuing from ... all or any of the Courts of") has been changed to "may be used by any person in, or in any pleading in or process issuing from, any court of". I do not think that anything turns on this change, which is one of form only.

[…]

[53] It is my view that the rights guaranteed by s. 19(2) of the Charter are of the same nature and scope as those guaranteed by s. 133 of the Constitution Act, 1867 with respect to the courts of Canada and the courts of Quebec. As was held by the majority at pp. 498 to 501 in MacDonald, these are essentially language rights unrelated to and not to be confused with the requirements of natural justice. These language rights are the same as those which are guaranteed by s. 17 of the Charter with respect to parliamentary debates. They vest in the speaker or in the writer or issuer of court processes and give the speaker or the writer the constitutionally protected power to speak or to write in the official language of his choice. And there is no language guarantee, either under s. 133 of the Constitution Act, 1867, or s. 19 of the Charter, any more than under s. 17 of the Charter, that the speaker will be heard or understood, or that he has the right to be heard or understood in the language of his choice.

MacDonald v. City of Montreal , [1986] 1 S.C.R. 460, 1986 CanLII 65 (SCC)

[60] Hugessen A.C.J. correctly observed in Walsh that the essential words of s. 133 are the same with respect to the language of Parliamentary debates and to the language of court proceedings and should receive the same construction. It is clear that the rights preserved in Parliamentary debates are those of the speaker only. Those who listen to the speaker cannot have a right to be addressed in the language of their choice without defeating the speaker's own right to use the language of his choice and making the constitutional provisions nonsensical. Also, the speaker might be unilingual and find it impossible to address his listeners in the language of their choice. Furthermore, the choice of the listeners might vary, making it impossible to accommodate each of them. The use of interpreters or simultaneous translation which, in any event, has nothing to do with s. 133, would not meet the essential thrust of appellant's submission that he has the right to be addressed in the language of his choice by the very person or body who is purporting to address him.

[…]

[67] The only positive duty that I can read in s. 133 is the one imposed on the Houses of Parliament of Canada and the Legislature of Quebec to use both the English and the French languages in the respective Records and Journals of those Houses, as well as the duty to legislate in both languages, that is to enact, print and publish federal and provincial acts in both languages: Blaikie No. 1 at p. 1022. In Forest v. Registrar of Court of Appeal of Manitoba, [1977] 5 W.W.R. 347 at p. 355, it seems to have been suggested by Freedman C.J.M. that s. 23 of the Manitoba Act, 1870, imposed a duty to provide the legislature with simultaneous translation for the purposes of parliamentary debate but, with respect for the contrary view, I fail to see the imposition of any such duty in either provision.

[68] A negative duty is also imposed by s. 133 on everyone not to infringe language rights conferred by the section with respect to the language of Parliamentary debates and court proceedings. These are constitutionally protected rights and it would be unlawful for instance to expel a member of the House of Commons or of the Quebec National Assembly on the ground that he uses either French or English in debates, or for a judge of a Quebec or a federal court to prevent the use of either language in his court. But this duty is not the positive one which the appellant invokes.

Knopf v. Canada (Speaker of the House of Commons), 2007 FCA 308 (CanLII)

[38] Subsection 4(1) of the [Official Languages] Act reiterates the right first recognized by section 133 of the Constitution Act, 1867 and reaffirmed by subsection 17(1) of the Charter. These three sections recognize the right of any person participating in parliamentary proceedings “to use” (d’employer) English or French. Subsection 4(1) of the Act, as well as subsection 17(1) of the Charter create a scheme of unilingualism at the option of the speaker or writer, who cannot be compelled by Parliament to express himself or herself in another language than the one he or she chooses (See MacDonald v. City of Montreal et al., 1986 CanLII 65 (SCC), [1986] 1 S.C.R. 460, at page 483).

[39] However, in some other language rights provisions, such as subsection 20(1) of the Charter and section 25 of the Act, the legislator chose the term “to communicate” (communiquer). In my opinion, this is not accidental.

[40] To “communicate” presupposes interactions, bilateral actions between the parties. The verb “to use” does not encompass such interaction. The right is unilateral: one has the right to address the House of Commons in the official language of his choice. In the case at bar, Mr. Knopf made his opinion known on particular topics of interest to the Committee and filed his documents. There stops his right under subsection 4(1) of the Act.

[41] I do not read into subsection 4(1) of the Act any requirement for a Committee to distribute documents to its members in one official language. Subsection 4(1) of the Act provides the appellant with a right to address the Committee in the language of his choice only. Once this right has been exercised, subsection 4(1) of the Act does not compel the Committee to act in a certain way with the oral or written information provided to it.

[42] Justice Layden‑Stevenson was right in finding that the distribution of documents does not fall within the scope of subsection 4(1) of the Act. The right to use an official language of choice does not include the right to impose upon the Committee the immediate distribution and reading of documents filed to support one’s testimony. The decision on how and when to treat the information received from a witness clearly belongs to the Committee. I find, therefore, that the appellant’s language rights were not infringed upon.

Annotations – Subsection 17(2)

Jones v. New Brunswick (Attorney General), [1975] 2 S.C.R. 182, 1974 CanLII 164 (SCC)

[15] The words of s. 133 themselves point to its limited concern with language rights; and it is, in my view, correctly described as giving a constitutionally based right to any person to use English or French in legislative debates in the federal and Quebec Houses and in any pleading or process in or issuing from any federally established Court or any Court of Quebec, and as imposing an obligation of the use of English and French in the records and journals of the federal and Quebec legislative Houses and in the printing and publication of federal and Quebec legislation. There is no warrant for reading this provision, so limited to the federal and Quebec legislative chambers and their legislation, and to federal and Quebec Courts, as being in effect a final and legislatively unalterable determination for Canada, for Quebec and for all other Provinces, of the limits of the privileged or obligatory use of English and French in public proceedings, in public institutions and in public communications. On its face, s. 133 provides special protection in the use of English and French; there is no other provision of the British North America Act referable to the Parliament of Canada (apart from s. 91(1)) which deals with language as a legislative matter or otherwise. I am unable to appreciate the submission that to extend by legislation the privileged or required public use of English and French would be violative of s. 133 when there has been no interference with the special protection which it prescribes. I refer in this respect particularly to s. 11(4) of the Official Languages Act, already quoted.

Charlebois v. Mowat , 2001 NBCA 117 (CanLII)

[40] Several decisions of the Supreme Court of Canada have expressly acknowledged, subject to minor variations of style, the similarity between the constitutional provisions in section 133 of the Constitution Act, 1867, section 23 of the Manitoba Act, 1870 and in sections 17, 18 and 19 of the Charter. In Société des Acadiens, Beetz, J. noted that sections 17, 18 and 19 of the Charter were borrowed from the English version of section 133. And he concluded at page 573: “It would accordingly be incorrect in my view to decide this case without considering the interpretation of s. 133. ...” With respect to the similarity between sections 23 and 133, see Manitoba Reference No. 1, at pages 743-44, and Manitoba Reference No. 2, at page 220.

[41] As I have already indicated, the respondents and the intervener, the Province of New Brunswick, have based the case they made before this Court, on the one hand, on the conclusion set out in Blaikie No. 2 that municipal by-laws are not included in the expression “statutes of the legislature” and, on the other hand, on the principle articulated in Société des Acadiens that because of the similarity between subsection 18(2) (in this case) and section 133, this case which deals with these provisions cannot be properly decided without taking into account the interpretation of section 133, i.e., the interpretation given in Blaikie No. 2.

[42] This is clearly the position adopted by the trial judge at paragraphs 12, 14 and 17 of his reasons for judgment. After quoting several relevant passages from Société des Acadiens and Blaikie No. 2, he concluded that he had to take into account the interpretation already given in Blaikie No. 2. According to him, this interpretation was determinative and sealed the outcome of the case before him with respect to subsection 18(2) of the Charter.

[43] If the upshot of this position is that a court which is called upon to decide an issue dealing with the interpretation of sections 17, 18 and 19 of the Charter must adhere to the interpretation already given to section 133, it is obvious that such an approach would be inconsistent with the principles of interpretation of language rights set out in Beaulac, supra.

[…]

[47] In light of these statements dealing with the principles of interpretation of constitutional rights and in light of recent decisions of the Supreme Court in Beaulac and Arsenault-Cameron, supra, I think that the principle set out by Beetz, J. in Société des Acadiens according to which the interpretation of language guarantees under section 133 must be taken into account cannot mean that the purposive analysis of rights established by the cases already cited can be ignored. As stated by the Supreme Court, “the focus on the historical context of language and culture indicates that different interpretative approaches may well have to be taken in different jurisdictions, sensitive to the unique blend of linguistic dynamics that have developed in each province.” (See Reference re Public Schools Act (Man.), supra, at page 851.) Accordingly, I believe that the decision in Blaikie No. 2, while serving as a guide for the interpretation of subsections 17(2), 18(2) and 19(2) of the Charter, must be viewed with prudence by the courts of this province.

[…]

[61] As I have already observed, subsection 18(2) creates a regime of compulsory bilingualism applicable to statutes enacted by the legislature, regulations made by the government and court rules of practice. Moreover, the combined effect of part of subsection 18(2) and subsection 17(2) is to create a form of parliamentary bilingualism applicable to the New Brunswick legislature made up of two separate components. On the one hand, subsection 18(2) provides that the records and journals must be published in both official languages and, on the other hand, subsection 17(2) establishes a form of optional bilingualism applicable to the debates and other proceedings of the legislature during which everyone has the right to use English or French. These two aspects of parliamentary bilingualism are not at issue in this case.

[…]

[84] In the same statute [the Official Languages of New Brunswick Act of 1969], section 12 (now section 11 of R.S.N.B. 1973, c. O-1) provides that “[t]he council of any municipality may declare by resolution that either or both official language(sic) may be used with regard to any matter or in any proceeding of such council”.

[85] As noted by the authors of the report “Towards Equality of Official Languages in New Brunswick”, 1982, at page 371, there is a difference between the two versions of this section with the French version being more restrictive; whereas the English version refers to the use of one language (or both) “with regard to any matter or in any proceeding of such council”, the French version refers to their use “dans toute délibération ou à toute réunion de ce conseil”. The expression “with regard to any matter” (visant toute chose) is obviously broader than the version which provides only for the use in any proceeding of the council. Choosing the English version, it is possible to conclude that municipal by-laws would be covered by the expression “with regard to any matter”. Since section 11 of the current Act provides for optional bilingualism, at the choice of the municipal council, and not the publication of municipal by-laws in English and French, this provision could be found to be in conflict with the constitutional obligation of legislative bilingualism provided for in subsection 18(2). Its invalidity may thus be raised. For the purposes of this appeal, I do not think it is necessary to settle this ambiguity because even in its broader version, this section only imposes an optional legislative bilingualism, which is definitely insufficient for the purposes of subsection 18(2). However, without going into an analysis of such cross interpretation which an examination of the two versions of the Act warrants, suffice it to say that, in my view, this provision parallels subsection 17(2) of the Charter which provides for optional bilingualism in the debates and other proceedings of the legislature of New Brunswick. In the same way, section 11 of the current Act provides for optional bilingualism in the proceedings and meetings of the council of any municipality. Nothing in this provision is therefore inconsistent with the obligation that may exist under subsection 18(2) to enact and publish municipal by-laws in the two official languages.

Cormier v. Fournier , 1986 CanLII 92 (NB QB)

[19] Subsection 17(2) of the Charter, which governs the use of both official languages in the legislature of New Brunswick, provides the following:

"Everyone has the right to use English or French in any debates and other proceedings of the legislature of New Brunswick."

[20] The legislature of New Brunswick uses simultaneous interpretation so as to conform with this subsection of the Charter. The Court intends to use these same means so as to conform not only with the Charter but also with subsection 13(1) of the Official Languages of New Brunswick Act.

N.B. – This judgment was confirmed on appeal: Fournier v. Cormier, 1987 CanLII 110 (NB CA).

18. (1) Parliamentary statutes and records

18. (1) The statutes, records and journals of Parliament shall be printed and published in English and French and both language versions are equally authoritative.

18. (2) New Brunswick statutes and records

18. (2) The statutes, records and journals of the legislature of New Brunswick shall be printed and published in English and French and both language versions are equally authoritative.

[LAST UPDATE: JUNE 2017]

N.B. – See case law on section 133 of the Constitution Act, 1867 and section 23 of the Manitoba Act, 1870.

Annotations – General

New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly), [1993] 1 S.C.R. 319, 1993 CanLII 153 (SCC)

[76] While these examples show that usage is not completely consistent, they by no means take away from the general rule that "legislature" in s. 32 means the body that enacts legislation. It must be observed that there is no single meaning of the term "legislature" which can be applied to both s. 33 on the one hand, and ss. 5, 17 and 18 on the other. Indeed, there is no single interpretation of the word "legislature" that can be used with complete precision within s. 18 itself. In s. 33, "legislature" clearly means the body capable of enacting legislation, whereas in ss. 5 and 17, the context makes it clear that it is the House itself that is intended. Section 18 refers to the "statutes, records and journals" of the legislature. But, strictly speaking, the "legislature" enacts "statutes" whereas the "Assembly" keeps a "journal". This lack of perfectly consistent usage is not surprising given the nature of these documents and particularly their attempt to set out in relatively few words concepts which are historically charged with meaning. It also underlines the point that, in interpreting these provisions, very careful attention must be paid to the contextual and purposive considerations outlined earlier in these reasons.

Société des Acadiens v. Association of Parents , [1986] 1 S.C.R. 549, 1986 CanLII 66 (SCC)

The Acts of the Parliament of Canada and of the Legislature of Quebec shall be printed and published in both those Languages.

Kilrich Industries Ltd. v. Halotier , 2007 YKCA 12 (CanLII)

[48] In my view, the purpose of the Languages Act is to commit the Yukon to official bilingualism. As well as being apparent from its legislative history, this purpose is explicit in s. 1 which states that the Yukon accepts that “English and French are the official languages of Canada” and sets down as objects the “implementation of the equality of status of English and French in the Yukon” and the “recognition of French and the provision of services in French in the Yukon”. While the Yukon Act does not declare French an official language of the Yukon, its impact in the legislative, central government and judicial spheres is the same.

[49] The final and perhaps strongest indicator of the object and purpose of the Languages Act is its virtual identity with the language of the guarantees enshrined in ss. 16 to 22 of the Charter. […]

[…]

[63] Because the Legislative Assembly chose to use language in s. 4 of the Languages Act that tracks that in s. 18 of the Charter, s. 133 of the Constitution Act, 1867 (Société des Acadiens, supra at 573), s. 23 of the Manitoba Act, 1870, and s. 110 of the North-West Territories Act, I am persuaded it should be read as imposing the same obligation on the Yukon government. (See Re Manitoba Language Rights, supra at 744 and Mercure, supra at 273). In my view, all enactments, including delegated legislation, are to be published in both languages; so, too, are the rules of court made by judges.

Charlebois v. Mowat , 2001 NBCA 117 (CanLII)

[40] Several decisions of the Supreme Court of Canada have expressly acknowledged, subject to minor variations of style, the similarity between the constitutional provisions in section 133 of the Constitution Act, 1867, section 23 of the Manitoba Act, 1870 and in sections 17, 18 and 19 of the Charter. In Société des Acadiens, Beetz, J. noted that sections 17, 18 and 19 of the Charter were borrowed from the English version of section 133. And he concluded at page 573: “It would accordingly be incorrect in my view to decide this case without considering the interpretation of s. 133. ...” With respect to the similarity between sections 23 and 133, see Manitoba Reference No. 1, at pages 743-44, and Manitoba Reference No. 2, at page 220.

Ashely v. Marlow Group Private Portfolio Management Inc., 2006 CanLII 31307 (ON SC)

[39] […] Section 18 of the Charter of Rights and Freedoms provides in section 18 [sic] that both the English and French language versions of a Federal statute are equally authoritative. Therefore, the court must examine both to determine Parliament’s intention. Each forms “part of the context in which the other must be read”. The court must therefore find a common interpretation for both equally authoritative versions.

Annotations – Subsection 18(1)

Northwest Territories (Attorney General) v. Fédération Franco-Ténoise , 2008 NWTCA 6 (CanLII)

[272] The OLA uses the same English words as s. 133 of the Constitution Act, 1867, while the French version is marginally different (s. 133 employs “journaux” instead of “comptes rendus”). Section 18(1) of the Charter contains the same words as the OLA except for the use of the word “statutes” in s. 18(1) of the Charter as opposed to “Acts of the Legislature” in s. 7 OLA. There is no relevant authority about the meaning of s. 18(1) of the Charter. As the trial judge noted, the Manitoba Court of Appeal has expressed the view that the term “records and journals” in s. 23 of the Manitoba Act, 1870 33 Vic., Cap. 3 (Canada), (which reflects s. 133 of the Constitution Act, 1867), includes Hansard: Forest v. Manitoba (Registrar of Court of Appeal) (1977), 1977 CanLII 1635 (MB CA), 77 D.L.R. (3d) 445, [1977] 5 W.W.R. 347 (Man. C.A.). There is no analysis of this passing point in the decision, however, and it is obiter dictum. Although the Supreme Court has considered s. 133 of the Constitution Act, 1867, it has not opined on the meaning of “records and journals”: Manitoba Language Rights Reference.