2005 FC 1172
T-1996-01
Société des Acadiens et Acadiennes du Nouveau- Brunswick (Applicant)
v.
Her Majesty the Queen (Respondent)
T-490-02
Marie-Claire Paulin (Applicant)
v.
Her Majesty the Queen (Respondent)
and
Commissioner of Official Languages (Intervener)
Indexed as: Société des acadiens et acadiennes du Nouveau-Brunswick v. Canada (F.C.)
Federal Court, Gauthier J.--Ottawa, April 19 and 20; August 26, 2005.
Constitutional Law -- Charter of Rights -- Language Rights -- Actions under Canadian Charter of Rights and Freedoms, s. 24 submitting questions regarding language obligations of Royal Canadian Mounted Police (RCMP) when providing provincial police services described in contract with Government of New Brunswick -- Société des Acadiens et Acadiennes du Nouveau-Brunswick not-for-profit corporation acting in furtherance of role as spokesperson for Acadian community of New Brunswick, protecting and promoting rights and interests of community -- Challenging proposed reduction of RCMP's obligations as to oral communications in New Brunswick -- Applicant Paulin, citizen of New Brunswick, arrested by member of RCMP on Trans-Canada Highway in New Brunswick for speeding -- Member unable to speak French -- Ticket issued in French, applicant paying fine -- (1) Whether RCMP has duty to comply with special constitutional obligations of New Brunswick under Charter, ss. 16.1, 16(2), 20(2); (2) whether RCMP required to have regard to, comply with ss. 16.1, 16(2), 20(2) in interpreting and implementing in New Brunswick Charter, s. 20(1) and Official Languages Act of Canada (OLA) and Official Languages (Communications with and Services to the Public) Regulations -- (1) Charter applying to RCMP because RCMP under constitutional authority of Parliament -- Institutional interpretation of "legislature and government" in Charter, s. 32 extending its application to all bodies over which government exercising sufficient degree of control -- Functional interpretation extending application to include all bodies performing "governmental function" -- RCMP member performing government function when arresting applicant, issuing ticket -- RCMP must comply with duties imposed on institutions of province under Charter, s. 20(2) when performing acts relating to police services set out in contract -- Institutional interpretation of Charter, s. 20(1) not precluding functional interpretation of s. 20(2) -- First question answered affirmatively since RCMP required to comply with special constitutional obligations of New Brunswick set out in Charter, s. 20(2) -- (2) Language duties imposed by Charter constituting threshold not ceiling -- Ss. 16(2), 20(2) not relevant in interpreting OLA of Canada, Regulations -- However, s. 16.1(1) setting out principle of general application within province of New Brunswick -- S. 16.1(1) binding on Parliament, federal government under general principle of s. 32 -- Governor in Council exercising power to define concept of significant demand in Regulations -- Therefore, RCMP required to have regard to Regulations, not Charter, s. 16.1(1) in interpreting, implementing constitutional duties -- Specific language of Regulations not allowing for special interpretation for offices located in New Brunswick -- "Significant demand" in Charter referring to demand at office of federal institution.
Official Languages -- Whether RCMP must comply with language obligations in Canadian Charter of Rights and Freedoms, Official Languages Act (OLA) of Canada, Regulations, when providing provincial police services under contract with Government of New Brunswick -- But Charter, s. 20(2) dealing with delivery of services -- Extent and quality of services provided to public by RCMP within New Brunswick matters of level of services, not internal management -- Under contract, Minister responsible for police services in New Brunswick having substantial amount of control over level of service -- Minister and Commissioner of Official Languages determining level of services -- No evidence contract setting language standard different from standard generally provided for in Charter, s. 20(1) and in OLA, Regulations -- Not apparent recognized language rights of collectivity in New Brunswick affecting individual right of members of public to communicate, receive services in English, French -- Insufficient evidence to determine whether Regulations creating inequality between two language communities.
RCMP -- RCMP providing provincial police services in New Brunswick pursuant to contract with Government of New Brunswick -- Charter, s. 16.1 giving equality of status to English, French communities in New Brunswick -- Under Charter, s. 16(2) English, French official languages of New Brunswick -- S. 20(2) giving member of New Brunswick public right to services from government in English or French -- RCMP federal institution -- Required to comply with constitutional obligations of New Brunswick set out in s. 20(2) -- Ss. 16.1, 16(2) can be considered for purpose of interpreting obligation established in s. 20(2) -- RCMP also required to have regard to s. 16.1 in interpreting, implementing s. 20(1).
These were two actions brought under section 24 of the Canadian Charter of Rights and Freedoms (Charter) in which the Court was asked to answer specific questions regarding the language obligations of the Royal Canadian Mounted Police (RCMP) when it provides the provincial police services described in its contract with the Government of New Brunswick. That Contract provides that the RCMP is subject to the control of the provincial attorney general or minister responsible for police services when it provides provincial police services thereunder. Under the Charter, subsection 16(1) English and French have equal rights and privileges as to their use in all institutions of the government of Canada. Under the subsection 16(2), English and French are the official languages of New Brunswick. Section 16.1 gives equality of status to both linguistic communities in New Brunswick. Subsection 20(1) gives any member of the public in Canada the right to communicate with and to receive services in English or French from any office of an institution of the government of Canada where there is significant demand for services in that language or it is reasonable given the nature of the office. And subsection 20(2) gives any member of the public in New Brunswick the right to receive services from any office of an institution of the government of New Brunswick in English or French. Finally, the Charter applies to the Parliament and government of Canada (paragraph 32(1)(a)) and to the legislature and government of each province (paragraph 32(1)(b)). Under the Official Languages Act (OLA) of Canada, Part V, New Brunswick is designated as bilingual. The applicant Société des Acadiens et Acadiennes du Nouveau-Brunswick is a not-for-profit corporation, which acts as a spokesperson for the Acadian community of New Brunswick, and protects and promotes the rights and interests of that community. It challenges a proposed reduction of RCMP obligations in the area of oral communications in the New Brunswick Division. The applicant Marie-Claire Paulin (applicant) is a citizen of New Brunswick. She was arrested on April 26, 2000, by a member of the RCMP on the Trans-Canada Highway in New Brunswick for speeding. The RCMP member was unable to speak to her in French and made no offer to do so. The ticket was issued in French and the applicant paid the fine. The questions posed to the Court were: (1) does the RCMP have a duty to comply with the special constitutional obligations of New Brunswick set out under section 16.1 and subsections 16(2) and 20(2) of the Charter?; and (2) is it required to have regard to and comply with section 16.1 and subsections 16(2) and 20(2) in interpreting and implementing subsection 20(1) of the Charter and the OLA and the Official Languages (Communications with and Services to the Public) Regulations in New Brunswick?
Held, the questions were answered as stated below.
The principles of interpretation of language rights are entrenched in the Constitution. The Supreme Court of Canada has 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. They are a particular kind of right, distinct from the principles of fundamental justice. The OLA also enjoys special status. It reflects both the Constitution of the country and the social and political compromise out of which it arose and follows the rules of interpretation of the Charter.
(1) The Charter applies to the RCMP, which falls under the constitutional authority of Parliament. When it comes to matters of internal management, such as position classifications, the RCMP is and at all times continues to be a federal institution. But subsection 20(2) of the Charter deals first and foremost with the delivery of services. The level of service to be provided has only a ricochet effect on internal administration and position classification because the level of services is one of the objective factors that the Commissioner of Official Languages takes into account. The extent and quality of services provided to the public within New Brunswick are more matters of the level of services than of internal management, and under the Contract, the Minister responsible for police services in New Brunswick has a substantial amount of control over these matters. The Minister, in consultation with the Commissioner, determines the level of services. There was no evidence before the Court that a language standard different from the standard generally provided for at subsection 20(1) of the Charter and in the OLA of Canada and the Regulations had been set by Contract. The language duties imposed by the Charter constitute a threshold not a ceiling.
The institutional interpretation of the words "legislature and government" in Charter, section 32 extends its application to include all bodies over which the government exercises a sufficient degree of control. In addition, those words have been given a functional interpretation that extends their application to include all bodies that perform a "governmental function"-- i.e. that exercise the power, under an Act or other statutory authority, to unilaterally enforce standards of human behaviour. The language of sections 16, 18 and 20 of the Charter differs somewhat from the language of section 32, but the criteria used under section 32 have also been applied to determine which body is an institution of the government within the meaning of those sections.
When the RCMP member arrested the applicant and gave her a ticket, he was performing a government function, more particularly a function of the Government of New Brunswick. When the RCMP performs acts relating to police services set out in the Contract, it must comply with the duties imposed on the institutions of that province by subsection 20(2) of the Charter in relation to those acts only. The fact that the RCMP is a federal institution required to comply with the duties set out in subsection 20(1) when the institutional interpretation is applied does not preclude the application of a functional interpretation of subsection 20(2) of the Charter. Accordingly, if services are provided under a similar contract with a province that has no language obligation, the RCMP would at least have to comply with the standard set out in subsection 20(1) of the Charter that applies to it because it is a federal institution. Therefore, the RCMP is required to comply with the special constitutional obligations of New Brunswick set out in subsection 20(2) of the Charter, it being understood that section 16.1 and subsection 16(2) can be considered for the purpose of interpreting the obligation established in subsection 20(2).
(2) The second question had to be analysed having regard to the duties of institutions of the federal government only. Furthermore, the Court could only consider the question as it related to the concept of significant demand, found in paragraph 20(1)(a) of the Charter and section 22 of the OLA of Canada. Subsections 16(2) and 20(2) set out the constitutional duties of institutions of the legislature and government of New Brunswick and are not relevant in interpreting the OLA of Canada and the Regulations. The purpose of the OLA and Regulations is to implement the constitutional duties of Parliament and the federal government in respect of language. Parliament is not required to have regard to those subsections in carrying out its own duties since the Charter applies to Parliament and the Government of Canada only in matters that are within their jurisdiction.
However, the situation for subsection 16.1(1) is different since it sets out a principle of general application within the province of New Brunswick. It is therefore theoretically binding on Parliament and the federal government under the general principle stated in section 32. The bilateral mechanism set out in section 43 of the Constitution Act, 1982, for the amendment of the Constitution may be used only to amend provisions relating to the use of English and French in a province, whether or not subsection 16.1(1) is interpreted as being binding on both levels of government or only on the Government of New Brunswick. Under Canadian federalism, federal law may be applied differently in certain provinces for legitimate reasons. Based on the evidence, the Court could not conclude that the general rule in section 32 does not apply to the statement of principle in subsection 16.1(1). The federal government therefore must have regard to that rule.
Nonetheless, in the fact situation before it, the Court was not required to answer the second question affirmatively. The question was whether the RCMP, as a federal institution, is required to have regard to subsection 16.1(1) in interpreting the concept of significant demand under paragraph 20(1)(a) of the Charter and section 22 of the OLA of Canada and in the Regulations. Parliament has given the Governor in Council the power to define the concept of significant demand, having regard to, inter alia, the criteria set out in section 32 of the OLA of Canada. The Governor in Council has exercised that power, and it is therefore to the Regulations that the RCMP, as a federal institution, must refer for the purpose of interpreting and implementing its constitutional duties. If there is any ambiguity, or if the language used in the Regulations lends itself to two interpretations, it may and should adopt the interpretation that is more consistent with the duties described in the Charter. Given the specific language of the Regulations, a special interpretation could not be allowed for offices located in New Brunswick, and the RCMP must apply them as they stand. The duties set out in those laws constitute a threshold and there is nothing to prevent a federal institution from going beyond its statutory duties if appropriate.
With respect to the interpretation of "significant demand", it was not apparent that the collective rights that the two language communities in New Brunswick are recognized as holding affected the individual right of members of the public to communicate or receive services in English or French, as described in paragraph 20(1)(a). Furthermore, the Charter refers to significant demand at an office of a federal institution. There was also insufficient evidence to determine whether the Regulations create an inequality between the two language communities.
statutes and regulations judicially
considered
Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], ss. 16, 16.1 (as enacted by SI/93-54, s. 1), 18, 20, 24, 32.
| Constitution Act, 1867, 30 & 31 Vict., c. 3 (U.K.) (as am. by Canada Act 1982, 1982, c. 11 (U.K.), Schedule to the Constitution Act, 1982, Item 1) [R.S.C., 1985, Appendix II, No. 5], ss. 92(14), 93, 93A (as enacted by SI/97-141). |
| Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], s. 43. |
| Motor Vehicle Act, R.S.N.B. 1973, c. M-17. |
| Municipalities Act, R.S.N.B. 1973, c. M-22. |
| Official Languages Act, R.S.C., 1985 (4th Supp.), c. 31, ss. 2, 22, 23(1), 25, 32. |
| Official Languages Act, S.N.B. 2002, c. O-0.5, ss. 1 "peace officer", 27, 30, 31. |
| Official Languages (Communications with and Services to the Public) Regulations, SOR/92-48, ss. 5, 6(1),(d). |
| Police Act, S.N.B. 1977, c. P-9.2, s. 2 (as am. by S.N.B. 1981, c. 59, s. 2; 1984, c. 54, s. 1(F); 1996, c. 18, s. 2; 1997, c. 60, s. 3; 2002, c. 54, s. 25). |
| Royal Canadian Mounted Police Act, R.S.C., 1985, c. R-10, ss. 18, 20. |
cases judicially considered
applied:
Canada (Commissioner of Official Languages) v. Canada (Department of Justice) (2001), 35 Admin. L.R. (3d) 46; 194 F.T.R. 181; 2001 FCT 239; Doucet v. Canada, [2005] 1 F.C.R. 671; (2004), 260 F.T.R. 61; 2004 FC 1444; Potter c. Québec (Procureur général), [2001] R.J.Q. 2823 (C.A.); leave to appeal to S.C.C. refused, [2002] 3 S.C.R. x; Haig v. Canada; Haig v. Canada (Chief Electoral Officer), [1993] 2 S.C.R. 995; (1993), 105 D.L.R. (4th) 577; 156 N.R. 81.
considered:
R. v. Beaulac, [1999] 1 S.C.R. 768; (1999), 173 D.L.R. (4th) 193; 121 B.C.A.C. 227; 134 C.C.C. (3d) 481; 238 N.R. 131; Canada (Attorney General) v. Viola, [1991] 1 F.C. 373; (1990), 123 N.R. 83 (C.A.); Gautreau v. New Brunswick (1989), 101 B.B.R. (2d) 1 (Q.B. (T.D.)); revd. (1990), 109 N.B.R. (2d) 54; 60 C.C.C. (3d) 332 (C.A.); R. v. Haché (1993), 139 N.B.R. (2d) 81 (C.A.); Société des Acadiens et Acadiennes du Nouveau-Brunswick Inc. v. Canada (Royal Canadian Mounted Police) (2001), 244 N.B.R. (2d) 366 (Q.B. (T.D.)); Attorney General (Que.) and Keable v. Attorney General (Can.) et al., [1979] 1 S.C.R. 218; (1979), 90 D.L.R. (3d) 161; 43 C.C.C. (2d) 49; 6 C.R. (3d) 145; 24 N.R. 1; Attorney General of Alberta et al. v. Putnam et al., [1981] 2 S.C.R. 267; (1981), 28 A.R. 387; 123 D.L.R. (3d) 257; [1981] 6 W.W.R. 217; 62 C.C.C. (2d) 51; R. c. Doucet (2003), 222 N.S.R. (2d) 1; 2003 NSSCF 256; Regina v. Lerke (1986), 67 A.R. 390; 25 D.L.R. (4th) 403; [1986] 3 W.W.R. 17; 43 Alta. L.R. (2d) 1; 24 C.C.C. (3d) 129; 49 C.R. (3d) 324; 20 C.R.R. 31 (C.A.).
referred to:
Arsenault-Cameron v. Prince Edward Island, [2000] 1 S.C.R. 3; (2000), 184 Nfld. & P.E.I.R. 44; 181 D.L.R. (4th) 1; 70 C.R.R. (2d) 1; 249 N.R. 140; 2000 SCC 1; Lavigne v. Canada (Office of the Commissioner of Official Languages), [2002] 2 S.C.R. 773; (2002), 214 D.L.R. (4th) 1; 289 N.R. 282; 2002 SCC 53; Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624; (1997), 151 D.L.R. (4th) 577; 96 B.C.A.C. 81; 218 N.R. 161; Godbout v. Longueuil (City), [1997] 3 S.C.R. 844; (1997), 152 D.L.R. (4th) 577; 43 M.P.L.R. (2d) 1; 219 N.R. 1; Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038; (1989), 59 D.L.R. (4th) 416; 26 C.C.E.L. 85; 89 CLLC 14,031; 93 N.R. 183; Blencoe v. British Columbia (Human Rights Commission), [2000] 2 S.C.R. 307; (2000), 190 D.L.R. (4th) 513; [2000] 10 W.W.R. 567; 23 Admin. L.R. (3d) 175; 81 B.C.L.R. (3d) 1; 3 C.C.E.L. (3d) 165; 260 N.R. 1; 2000 SCC 44; Douglas/Kwantlen Faculty Assn. v. Douglas College, [1990] 3 S.C.R. 570; (1990), 77 D.L.R. (4th) 94; [1991] 1 W.W.R. 643; 52 B.C.L.R. (2d) 68; 91 CLLC 17,002; 118 N.R. 340; McKinney v. University of Guelph, [1990] 3 S.C.R. 229; (1990), 76 D.L.R. (4th) 545; 91 CLLC 17,004; 2 C.R.R. (2d) 1; 118 N.R. 1; 45 O.A.C. 1; Stoffman v. Vancouver General Hospiral, [1990] 3 S.C.R. 483; [1991] 1 W.W.R. 577; (1990), 52 B.C.L.R. (2d) 1; 91 CLLC 17,003; Moncton (City) v. Charlebois (2001), 242 N.B.R. (2d) 259; 25 M.P.L.R. (3d) 171; 2001 NBCA 117; R. v. Chang (2003), 339 A.R. 278; [2004] 6 W.W.R. 260; 26 Alta. L.R. (4th) 227; 180 C.C.C. (3d) 330; 112 C.R.R. (2d) 125; 2003 ABCA 293; R. v. N.S. (2002), 97 C.R.R. (2d) 103 (Ont. Ct. J.); R. v. Jones, [2004] N.B.J. No. 510 (Prov. Ct.) (QL); Houle v. Maschouche (Ville), [1999] R.J.Q. 1894; (1999), 179 D.L.R. (4th) 90 (C.A.).
authors cited
Brun, Henri and Guy Tremblay. Droit constitutionnel, 4e éd. Cowansville, Que.: Éditions Y. Blais, 2002.
Hogg, Peter W. Constitutional Law of Canada, 4th ed. Scarborough, Ont.: Carswell, 1997.
Hogg, Peter W. Constitutional Law of Canada, 4th ed. loose-leaf. Scarborough, Ont.: Carswell, 1997.
Pelletier, Benoît. "Les modalités de la modification de la Constitution du Canada" (1999), 33 R.J.T. 1.
Royal Canadian Mounted Police. Provincial Police Services Agreement: Interpretation and Administrative Procedures, April 1, 1992. Arts. 2.1, 3.1, 4.1, 4.2, 7.1, 7.3, 7.4.
These were two actions brought under section 24 of the Canadian Charter of Rights and Freedoms in which the Court was asked to answer specific questions relating to the language obligations of the Royal Canadian Mounted Police when it provides the provincial police services described in its contract entered into with the Government of New Brunswick.
appearances:
Michel Doucet for applicant.
G. Robert Basque, Q.C. for respondent.
François Boileau for intervener.
solicitors of record:
Patterson Palmer, Moncton, for applicant.
Forbes Roth Basque, Moncton, for respondent.
Office of the Commissioner of Official Languages, Ottawa, for intervener.
The following are the reasons for order rendered in English by
[1]Gauthier J.: There are two actions before the Court, one brought by Mrs. Marie-Claire Paulin and the other by the Société des Acadiens et Acadiennes du Nouveau-Brunswick Inc. (Société), pursuant to section 24 of the Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [[R.S.C., 1985, Appendix II, No. 44]] (Charter). In this context, the Court must answer certain specific questions stated by the parties in relation to the language obligations of the Royal Canadian Mounted Police (RCMP) when it provides the provincial police services described in its contract with the Government of New Brunswick.
[2]These two actions against Her Majesty were joined for the purposes of the trial and the parties agree that the answers to the questions submitted will apply to both cases.
[3]The Commissioner of Official Languages was granted leave to intervene in file No. T-490-02, but only with respect to the interpretation of paragraph 6(1)(d) of the Official Languages (Communications with and Services to the Public) Regulations, SOR/92-48 (Regulations) and how it applies to the RCMP detatchment in Woodstock, New Brunswick.
[4]Notice of a constitutional question was served on the attorneys general of all the provinces and territories of Canada. None of the attorneys general intervened.
[5]At the pre-trial conference held before Justice Simon Noël, the parties stated that they intended to call a number of witnesses. Since then, however, they agreed to a number of admissions as to the facts, and they filed 23 documents jointly. In addition, the respondent filed the affidavit of Mr. Ricciardi, with the consent of the other parties. The parties also agreed on the formulation of the three questions submitted to the Court.
[6]Although some of the facts admitted are not really useful or relevant for the purposes of disposing of the questions on which the parties have agreed, it is appropriate to reproduce the text submitted on consent by the parties:
[translation]
| (A) The Société des Acadiens et des Acadiennes du Nouveau-Brunswick Inc. is a body corporate incorporated under the New Brunswick Companies Act. It is a not-for-profit corporation without share capital. It acts in the furtherance of its role as spokesperson for the Acadian community of New Brunswick and to protect and promote the rights and interests of that community. |
| (B) Marie-Claire Paulin is a citizen of New Brunswick residing at . . . in the city of Moncton, New Brunswick. |
| (C) The Royal Canadian Mounted Police (RCMP) is a Canadian police force established under section 3 of the Royal Canadian Mounted Police Act (Act). It is subdivided into a number of regions, including "J" Division (New Brunswick). Under subsection 20(1) of the Act, "[t]he Minister [Solicitor General] may, with the approval of the Governor in Council, enter into an arrangement with the government of any province for the use or employment of the Force, or any portion thereof, in aiding the administration of justice in the province and in carrying into effect the laws in force therein". Pursuant to arrangements made under section 20 of the Act, the RCMP provides for the administration of justice in the province and the carrying into effect of the laws in force therein, including, more specifically, the laws relating to crime prevention and the maintenance of order, and the enforcement of highway traffic regulations, the Criminal Code and other laws in force in New Brunswick, on behalf of the Government of New Brunswick and certain municipalities in the province. |
| (D) The RCMP is a federal institution within the meaning of section 3 of the Official Languages Act of Canada, R.S.C., 1985, c. O-3 (OLA of Canada). . . . Pursuant to the arrangement made under section 20 of the Act, it enforces the laws of the province of New Brunswick and of certain municipalities in that province. However, the RCMP is not a provincial "police force" within the meaning of the Police Act, R.S.N.B. 1977, c. P-9.2 [sic]. |
| (E) The Solicitor General (Minister of Public Safety) of New Brunswick issues directives to the Royal Canadian Mounted Police regarding the terms of the arrangements made under section 20, referred to in the preceding paragraph. |
| (F) New Brunswick is the only officially bilingual province in Canada. The two official language communities have equal status, rights and privileges. Accordingly, New Brunswick has special status, in particular because it is bound by the obligations set out in section 16.1 and subsections 16(2) and 20(2) of the Canadian Charter of Rights and Freedoms. |
| (G) The OLA of Canada and the regulations thereunder, Official Languages (Communications with and Services to the Public) Regulations, SOR/92-48 (Regulations) specify the points of service where the RCMP is required to offer services to the public, and to communicate, in both official languages of New Brunswick. |
FILE NO. T-490-02
| (H) Marie-Claire Paulin was arrested on April 26, 2000, by a member of the RCMP, on the Trans-Canada Highway in the Woodstock area, and more specifically at Debec, New Brunswick, for speeding. The RCMP member in question was unable to speak to Mrs Paulin in French, and no active offer in that respect was made. The ticket was issued in French. |
| (I) The Woodstock RCMP detachment is not located at a point of entry into Canada; it is located near (15 km from) a border post. At the border post, the RCMP offers its services in both official languages. |
| (J) Marie-Claire Paulin paid the fine she was ordered to pay on April 26, 2000. |
| (K) |
FILE NO. T-1996-01
| (L) Robin S. Wilson, a consultant, was retained by the RCMP to do a review of the operations of all RCMP offices in the Atlantic region, including the offices in New Brunswick, to determine whether the language requirements at those offices had been established in accordance with the provisions of the OLA of Canada and Treasury Board Secretariat policies. |
| (M) In the mid-1990s, the four RCMP Atlantic divisions - "H" Division in Nova Scotia, "B" Division in Newfoundland and Labrador, "L" Division in Prince Edward Island and "J" Division in New Brunswick - were combined. The purpose of the reorganization was to allocate administrative offices among the divisions. |
| (N) Within the RCMP, "J" Division is the only Atlantic division where both official languages are recognized as languages of work. Under Part V of the OLA of Canada, which deals with the language of work in federal institutions, some regions are designated bilingual. This is the case for New Brunswick. In "bilingual" regions, for the purpose of language of work, federal institutions have a duty to ensure that their work environment is conducive to the effective use of English and French and that their employees are able to exercise the right to use either official language, subject to the obligations involved in serving the public and other employees. In other regions, the treatment of the two languages in workplaces must be reasonably comparable to the treatment of both official languages in the work environments in parts or regions of Canada where the other official language predominates. |
| (O) The question of official languages was discussed at meetings of the Atlantic Region transition team. It was decided at that time that a subcommittee would be created to do an in-depth review of the question of official languages in the context of regionalization. The subcommittee concluded that "J" Division officials had been overly zealous in implementing the language obligations imposed by the OLA of Canada. |
| (P) The subcommittee therefore made recommendations to the Atlantic Region Steering Committee, which, in the subcommittee's submission, would provide for fair and equitable application of language obligations in that region. The main recommendation was that all offices, both administrative and operational, be the subject of an immediate review to determine the need for designated bilingual positions. The review was to include an evaluation of the manner in which Treasury Board Secretariat criteria were being applied for each group of employees and each detachment, and to indicate why they applied and how they were being implemented, as well as the level, profile and minimum number of positions needed to provide bilingual services. |
| (Q) RCMP management in the Atlantic Region agreed to act on the subcommittee's recommendation and retain an outside consultant, Robin S. Wilson, to do a review of how the OLA of Canada and the regulations under that Act were being applied and implemented in the Atlantic Region. |
| R) Upon completing his investigation, the consultant recommended an overall reduction in the RCMP's language obligations in the area of oral communications. More specifically, he proposed that the appropriate level of language skills for the large majority of RCMP members' positions in "J" Division be BBB, to replace the BBC level that had previously been in effect; the letter "B" indicates an intermediate level of comprehension in oral interaction, while "C" indicates a superior level. |
| (S) The applicant Société des Acadiens et Acadiennes du Nouveau-Brunswick Inc. submits that any review of positions at RCMP offices in New Brunswick for the purpose of determining language requirements at those offices, including the review done by the consultant in this case, must have regard to the unique characteristics of New Brunswick in matters of language, and more specifically to section 16.1 and subsections 16(2) and 20(2) of the Canadian Charter of Rights and Freedoms. |
| (T) The respondents' position is that section 16.1 and subsections 16(2) and 20(2) do not apply in this case, and in any event that the conclusions stated in the Wilson report have not been implemented.1 |
Issues
[7]As noted earlier, the parties expressly limited the issues to be decided by the Court to the following questions:
| (A) Does the RCMP have a duty to comply with the special constitutional obligations of New Brunswick as set out in section 16.1 [as enacted by SI/93-54, s. 1] and subsections 16(2) and 20(2) of the Charter? |
| (B) Is the RCMP required to have regard to and comply with section 16.1 and subsections 16(2) and 20(2) in interpreting and implementing subsection 20(1) of the Charter and the OLA of Canada [R.S.C., 1985 (4th Supp.), c. 31] and the Regulations in New Brunswick? |
| (C) Does the RCMP have a duty under paragraph 6(1)(d) of the Regulations to offer its services in both official languages, throughout the area served by the Woodstock detachment? |
Relevant Legislation
[8]The most relevant statutory provisions are reproduced in Appendix A of these reasons.
Positions of the Parties
[9]The applicants admit that the RCMP is a federal institution. However, they submit that when a purposive approach is taken to sections 16, 16.1 and 20 of the Charter and they are given a generous and expansive interpretation based on their purpose and in a way that is consistent with preserving the official language communities of Canada, and more specifically the official language communities of New Brunswick, thus enabling them to flourish, the answer to the first two questions submitted must be "yes" for the following reasons:
(A) even though the RCMP is a federal institution, when it agrees, by contract, to provide provincial police services in New Brunswick and its members act as peace officers on behalf of the province within the meaning of the New Brunswick Official Languages Act, S.N.B. 2002, c. O-0.5 (OLA of N.B.), it must serve members of the public of New Brunswick in the official language of their choice, because, for such purposes only, it is to be treated as an institution of New Brunswick subject to the obligations set out in section 16.1, subsections 16(2) and 20(2) of the Charter;
In any event, or in the alternative:
(B) the principle set out in section 16.1 of the Charter is binding on the federal government and its institutions in the same manner as on the government and the institutions of New Brunswick. It must therefore be used to interpret the obligations of federal institutions under subsection 20(1) of the Charter when those institutions provide services in New Brunswick.
[10]The respondent disputes those two conclusions and submits that:
(A) section 16.1 of the Charter applies to the legislature and institutions of New Brunswick only.
(B) in the alternative, even if federal institutions must have regard to the principle set out in section 16.1, the constitutional obligations of the RCMP, when it provides services at an office located outside the capital, are clearly defined in subsection 20(1) of the Charter and section 22 of the OLA of Canada, and in the Regulations. Those are the only instruments that define the obligations of the RCMP, whether its services are delivered under a contract with New Brunswick or otherwise.
(C) the Government of New Brunswick may not interfere in the administration of the RCMP, which is a federal institution, by enacting a law or making regulations whose purpose is to impose language obligations on it that are more onerous than the obligations provided by Parliament. Section 31 of the OLA of N.B. is therefore of no force or effect as against the RCMP.
(D) New Brunswick did not establish a language standard in its contract with the RCMP and made no provision for compensation for the additional costs that would result from setting a language standard that was more onerous than the standard that applied by operation of law, under the Charter, the OLA of Canada and the Regulations. The Province may not unilaterally change the terms of that agreement by provisions incorporated in the OLA of N.B. or otherwise.
Analysis
(a) General Principles of Interpretation
[11]Although the parties come to different conclusions, the principles of interpretation that the applicants advanced, which are based on the purposive approach, are not disputed.
[12]The approach to the interpretation of language rights that is entrenched in the Constitution was clearly expressed by Justice Michel Bastarache in R. v. Beaulac, [1999] 1 S.C.R. 768, at paragraphs 24-25:
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.
Language rights must in all cases be interpreted purposively, in a manner consistent with the preservation and development of official language communities in Canada; see Reference re Public Schools Act (Man.), supra, at p. 850. To the extent that Société des Acadiens du Nouveau-Brunswick, supra, at pp. 579-80, stands for a restrictive interpretation of language rights, it is to be rejected. The fear that a liberal interpretation of language rights will make provinces less willing to become involved in the geographical extension of those rights is inconsistent with the requirement that language rights be interpreted as a fundamental tool for the preservation and protection of official language communities where they do apply. It is also useful to re-affirm here that language rights are a particular kind of right, distinct from the principles of fundamental justice. They have a different purpose and a different origin. I will return to this point later.
[13]This method was also adopted in Arsenault- Cameron v. Prince Edward Island, [2000] 1 S.C.R. 3, at paragraph 27.
[14]The OLA of Canada is also an enactment that enjoys special status, as Justice Robert Décary pointed out in Canada (Attorney General) v. Viola, [1991] 1 F.C. 373 (C.A.), at pages 386-387:
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 subsections 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. To the extent also that it is an extension of the rights and guarantees recognized in the Charter, and by virtue of its preamble, its purpose as defined in section 2 and its taking precedence over other statutes in accordance with subsection 82(1), it belongs to that privileged category of quasi-constitutional legislation which reflects "certain basic goals for our society" and must be so interpreted "as to advance the broad policy considerations underlying it". To the extent, finally, that it is legislation regarding language rights, which have assumed the position of fundamental rights in Canada but are nonetheless the result of a delicate social and political compromise, it requires the courts to exercise caution and to "pause before they decide to act as instruments of change", as Beetz J. observed in Société des Acadiens du Nouveau-Brunswick Inc. et al. v. Association of Parents for Fairness in Education et al. ([1986] 1 S.C.R. 549 at p. 578).
[15]This approach to the interpretation of the OLA of Canada was confirmed by the Supreme Court in Lavigne v. Canada (Office of the Commissioner of Official Languages), [2002] 2 S.C.R. 773, at paragraph 23.
[16]And lastly, this method has been consistently applied by the Federal Court in, inter alia, Canada (Commissioner of Official Languages) v. Canada (Department of Justice) (2001), 35 Admin. L.R. (3d) 46 (F.C.T.D.) and Doucet v. Canada, [2005] 1 F.C.R. 671. It is the one that I intend to follow.
| (b) First question: Does the RCMP have a duty to comply with the special constitu-tional obligations of New Brunswick as set out in section 16.1 and subsections 16(2) and 20(2) of the Charter? |
[17]The applicants submit that there is no doubt that members of the public in New Brunswick, and particularly Mrs. Paulin, would have had a right to communicate in the language of their choice if police services in the Woodstock area had been provided by a police force established by the municipality or by the province.
[18]On this point, they rely on the decisions in Gautreau v. New Brunswick (1989), 101 N.B.R. (2d) 1 (Q.B. (T.D.))2 and R. v. Haché (1993), 139 N.B.R. (2d) 81 (C.A.).
[19]They say that the provisions of the Charter that apply generally throughout New Brunswick (section 16.1, subsections 16(2) and 20(2) of the Charter) and the clear provisions of the OLA of N.B. cannot be applied discriminatorily, depending on what agency is actually assigned by the Government of New Brunswick to administer the laws of the province. That principle was recognized by the Federal Court in Canada (Commissioner of Official Languages) v. Canada (Department of Justice).
[20]In that case, the Court had to determine whether the Ontario government and the municipalities acting under a power delegated by the federal government in relation to the administration of prosecutions for offences under federal statutes and regulations were required to comply with the language requirements set out in the OLA of Canada.
[21]On that point, Justice Pierre Blais wrote (at paragraphs 116, 137, 140-141):
As suggested by counsel for the applicant, section 253 of the OLA simply confirms the constitutional principle that a government may not divest itself of the constitutional obligations to which it is bound by the Charter by delegating certain of its responsibilities. The duty that is incumbent on the Attorney General of Canada, to offer administrative services relating to prosecutions for federal contraventions in both official languages, is imposed not only by Part IV of the OLA, but also by the Charter. The applicant suggests that a constitutional duty cannot be avoided by delegating, by incorporation by reference, or by any other process.
. . .
It would therefore seem important to ensure that the legal obligations of the delegating authority, the federal government, or of the delegates, the Government of Ontario and municipal governments, particularly with regard to language rights, which were characterized earlier as constitutional rights, are delineated and specified sufficiently to ensure that the rights of every accused person will be respected, whether the legislation relating to contraventions is administered by the federal government, the Ontario Government or the municipal authorities.
. . .
It must be recalled that in administering the CA [Contraventions Act], the Government of Ontario is applying a federal statute within the territory of the province. Accused persons are entitled to expect the same language rights guarantees as if it were the Attorney General of Canada administering the CA.
A federal law of general application such as the OLA cannot be applied throughout Canada in a discriminatory manner, depending on who is responsible for applying the CA. The language guarantees set out in the OLA and in the Criminal Code must therefore apply regardless of whether the Attorney General of Canada, the Attorney General of Ontario or the municipalities are given the authority to administer the CA.
[22]The respondent submits that the agreement with the province of New Brunswick, dated April 1, 1992 (Contract) [Provincial Police Services Agreement: Interpretation and Administrative Procedures], expressly provides as follows:
2.1 . . .
| b) Canada is hereby authorized by the Province to carry out the powers and duties of the provincial police force for the purpose of providing the Provincial Police Service in accordance with this Agreement. |
. . .
| 3.1 a) The internal management of the Provincial Police Service, including its administration and the determination and application of professional police procedures, shall remain under the control of Canada. |
[23]The respondent does not dispute that police services provided by the municipalities that are subject to the Municipalities Act, R.S.N.B. 1973, c. M-22 and police services established under the Police Act, S.N.B. 1977, c. P-9.2 may be regarded as provincial institutions that are subject to section 16.1 and subsections 16(2) and 20(2) of the Charter. This is because the province would probably, in those cases, exercise sufficient control to justify that interpretation. With respect to the RCMP, however, the provincial government does not exercise control because that police force does not come under its jurisdiction. It is not subject to the Police Act and is not an agent of the provincial Crown.
[24]In the respondent's submission, the Contract that is in force until 2012 does not make the RCMP a provincial institution. On that point, the respondent relies on the decision of the New Brunswick Court of Queen's Bench Trial Division in Société des Acadiens et Acadiennes du Nouveau-Brunswick Inc. v. Canada (Royal Canadian Mounted Police) (2001), 244 N.B.R. (2d) 366. That decision was made in proceedings brought by the Société before it instituted its action in file No. T-1996-01. In it, the Court confirmed that only the Federal Court has jurisdiction to hear an application for judicial review of administrative actions or decisions of the RCMP. On that point, Justice Réginald Léger said, at paragraphs 16-19:
[traduction]
The applicant submits that for all intents and purposes, the Royal Canadian Mounted Police is an institution of the Government of New Brunswick since it provides police services on behalf of the Government of New Brunswick and some municipalities, including crime prevention, maintenance of order, enforcement of traffic regulations, enforcement of the Criminal Code and statutes of New Brunswick, including the Motor Vehicle Act, as well as emergency services. I cannot accept this position.
The Royal Canadian Mounted Police does not lose its federal status because it enforces provincial and municipal legislation pursuant to a service contract with the Province of New Brunswick and some municipalities.
In my opinion, it is clear that the Royal Canadian Mounted Police is a "federal board, commission or tribunal" within the meaning of the Federal Court Act.
I also find that the Royal Canadian Mounted Police remains at all times a federal institution and that it cannot be transformed into a provincial institution by acting on behalf of the Government of New Brunswick.
[25]The respondent also cited the decisions of the Supreme Court of Canada in Attorney General (Que.) and Keable v. Attorney General (Can.) et al., [1979] 1 S.C.R. 218 and Attorney General of Alberta et al. v. Putnam et al., [1981] 2 S.C.R. 267, which confirm that the province's jurisdiction in respect of the administration of justice and the administration of provincial statutes and municipal by-laws within the province does not give it the authority to intervene in the administration of the RCMP, even where the RCMP is providing services under a contract similar to the one signed with New Brunswick. In the respondent's submission, this is exactly what New Brunswick is attempting to do by way of the OLA of N.B.
[26]There can be no doubt that the Charter applies because the RCMP falls under the constitutional authority of Parliament. The respondent submits, however, that it is subsection 20(1) of the Charter, and that provision alone, that defines the applicable standard. On that point, the respondent cited the decision of Justice Edmond Blanchard in Doucet v. Canada, in which he said, at paragraph 35:
The fact that the RCMP performs policing duties in Nova Scotia under a contract entered into with the Province does not in any way alter its status as a federal institution. Subsection 20(1) of the Royal Canadian Mounted Police Act . . . provides for such contracts.
[27]On that point, Blanchard J. was in agreement with the Supreme Court of Nova Scotia in R. c. Doucet (2003), 222 N.S.R. (2d) 1, in which Justice Allan Boudreau said, at paragraph 32:
[translation] In my opinion, a contract with a province does not change anything in the status of the R.C.M.P. It continues to be a federal institution. Any other conclusion would allow the R.C.M.P. to avoid its language obligations to individuals, as guaranteed by the Charter. That certainly would not be consistent with the purpose of the constitutional language rights.
[28]In my opinion, there is no doubt that when it comes to matters of internal management, the RCMP is and at all times continues to be a federal institution.
[29]In file No. T-1996-01, the respondent submitted that position classifications are a matter of internal management. I agree. However, that conclusion does not have the impact that the respondent attributes to it in terms of the analysis of this first question because subsection 20(2) of the Charter deals, first and foremost, with the delivery of services. The level of service to be provided has only a ricochet effect on internal administration and position classification because the level of services is one of the objective factors that the Commissioner takes into account.
[30]The extent and quality of services provided to the public within New Brunswick are more matters of the level of services than of internal management, and the Contract clearly permits the Minister responsible for police services in New Brunswick to get involved in these matters. In fact, it gives the Minister a substantial amount of control over them. It is the Minister, in consultation with the Commissioner, who determines the level of services. (See, for example, articles 3.1b), c), d), 4.1, 4.2, 7, 7.1a), 7.3 and 7.4 of the Contract appended to these reasons as Appendix B.)
[31]However, as the respondent pointed out, there is no evidence before the Court that a language standard different from the standard generally provided for at subsection 20(1) of the Charter and in the OLA of Canada and the Regulations has been set by Contract.
[32]There is no doubt that the RCMP could have agreed, in the Contract, to provide services in both languages throughout New Brunswick since the duties imposed by the Charter constitute a threshold, and not a ceiling, even if the RCMP is subject to the duty imposed by subsection 20(1) only.
[33]Nor is there any doubt that since the OLA of N.B. was enacted in 2002, the Government of New Brunswick has had a duty to ensure that peace officers communicate with the public of New Brunswick in both languages, even where the service is provided by a third party under a contract.
[34]Having regard to the evidence before me and the submissions of the respondent, which were that no instructions have been received from the Minister in this respect, it would appear that in the present instance this duty has not been fulfilled. However, as I said, the Attorney General of New Brunswick did not intervene, after receiving the notice of constitutional question, and he was not made a party to any of the actions before the Court.
[35]Furthermore, because the argument that section 31 of the OLA of N.B. is of no force or effect as against the RCMP as a federal institution was not made in the notice of constitutional question, it cannot be considered by the Court.
[36]The fact that the RCMP is and continues to be a federal institution does not, in itself, answer the question proposed by the parties. As the Supreme Court of Canada has said in numerous decisions (Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624; Godbout v. Longueuil (City), [1997] 3 S.C.R. 844; Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038; Blencoe v. British Columbia (Human Rights Commission), [2000] 2 S.C.R. 307), the Charter applies to the entire federal and provincial government apparatus. In addition to the institutional interpretation of the words "legislature and government", which extends the application of section 32 of the Charter to include all bodies over which the government exercises a sufficient degree of control (Lavigne; Douglas / Kwantlen Faculty Assn. v. Douglas College, [1990] 3 S.C.R. 570; McKinney v. University of Guelph, [1990] 3 S.C.R. 229; Stoffman v. Vancouver General Hospital, [1990] 3 S.C.R. 483), the words "legislature and government" in that section have been given a functional interpretation that extends their application to include all bodies that perform a "governmental function", that is, that exercise the power, under an Act or other statutory authority, to unilaterally enforce standards of human behaviour (Constitutional Law of Canada, 4th ed. loose-leaf, Peter Hogg, Volume 2, at pages 34-12.1 to 34-15).
[37]The language of sections 16, 18 and 20 of the Charter differs somewhat from the language of section 32, but the criteria used under section 32 have also been applied to determine which body is an institution of the government within the meaning of those sections (Moncton (City) v. Charlebois (2001), 242 N.B.R. (2d) 259 (C.A.), at paragraph 97 et seq; Droit constitutionnel, Henri Brun and Guy Tremblay, 4th edition, at page 844).
[38]In the two decisions cited by the applicants (Haché and Gautreau) the police services were provided directly by the province or by a body under its control, a municipality. The issue was more whether, based on the institutional interpretation of the word "government", those services were the services of an institution covered by subsection 20(2) of the Charter. Those decisions are of little use here, except for the comments by Justice Jean-Claude Angers [in Haché], concurred with by Justice Lewis Ayles, to the effect that the police service is a service of the government because the province has the power to establish police services under its constitutional power to administer justice, and at common law governments establish police services to maintain order and enforce the laws of the land.
[39]As Peter Hogg said in Constitutional Law of Canada, 4th edition, at page 514, the performance of provincial and municipal police services under a contract between the RCMP and a province is authorized by a statute of the province (section 2 [as am. by S.N.B. 1981, c. 59, s. 2; 1984, c. 54, s. 1(F); 1996, c. 18, s. 2; 1997, c. 60, s. 3; 2002, c. 54, s. 25] of the Police Act of New Brunswick) and by a federal statute (section 20 of the Royal Canadian Mounted Police Act [R.S.C., 1985, c. R-10]) and derives in part from the province's power to administer justice under subsection 92(14) of the Constitution Act, 1867 [30 & 31 Vict., c. 3 (U.K.) (as am. by Canada Act 1982, 1982, c. 11 (U.K.), Schedule to the Constitution Act, 1982, Item 1)], R.S.C., 1985, Appendix II, No. 5. In his view the RCMP is, as a rule, subject to the control of the provincial attorney general or minister responsible for police services when it provides provincial police services under its contract. That is exactly what the provisions of the Contract referred to in paragraph 30 of my reasons do.
[40]When the RCMP member arrested Mrs. Paulin and gave her a ticket under the Motor Vehicle Act, R.S.N.B. 1973, c. M-17, he was performing a government function, more particularly a function of the Government of New Brunswick.
[41]On this point, I note that in Regina v. Lerke (1986), 67 A.R. 390 (C.A.), cited in R. v. Chang (2003), 339 A.R. 278 (C.A.) and followed in R. v. N.S. (2002), 97 C.R.R. (2d) 103 (Ont. Ct. J.); R. v. Jones, [2004] N.B.J. No. 510 (Prov. Ct.) (QL) and Houle v. Mascouche (Ville), [1999] R.J.Q. 1894 (C.A.), the Alberta Court of Appeal held that the arrest of an individual is a government function whether the person making the arrest is a peace officer or a private individual. Accordingly, even when that act is performed by a private individual, it is subject to the Charter.
[42]Having regard to the provisions of the Contract and the fact that the RCMP is performing a function of the Government of New Brunswick when it provides the police services set out in the Contract, I am satisfied that, in relation to those acts only, the RCMP must comply with the duties imposed on the institutions of that province by subsection 20(2) of the Charter.
[43]I do not see why the fact that the RCMP is a federal institution that is required to comply with the duties set out in subsection 20(1) when one applies the institutional interpretation would preclude the application of a functional interpretation of subsection 20(2) of the Charter in the present case.
[44]Naturally, and as I said earlier, the language obligations set out in subsection 20(1) are a threshold. Accordingly, with respect to services provided under a similar contract with a province that has no language obligation, the RCMP would at least have to comply with the standard set out in subsection 20(1) of the Charter that applies to it because it is a federal institution (Doucet).
[45]This conclusion is in fact entirely consistent with the one adopted by my colleague Justice Pierrre Blais in Canada (Commissioner of Official Languages). Like him, I regard it as essential to ensure that the provincial government cannot evade its constitutional obligations by assigning a federal institution to maintain order and enforce the law within the province rather than having this done by a municipality or a private entity.
[46]I would therefore answer "yes" to the question concerning subsection 20(2) of the Charter, it being understood that section 16.1 and subsection 16(2) can be considered for the purpose of interpreting the obligation established in subsection 20(2).
| (c) Second question: Is the RCMP required to have regard to and comply with section 16.1 and subsections 16(2) and 20(2) in interpreting and implementing subsection 20(1) of the Charter and the OLA of Canada and the Regulations in New Brunswick? |
[47]To answer this second question, it is of course not enough simply to reiterate the reasoning applied in considering the first question. The Court understands from the parties that this second question must be analysed having regard to the duties of institutions of the federal government only, without considering the fact that the RCMP may be otherwise required to comply with the province's constitutional obligations in relation to acts performed under its Contract.
[48]In their additional submissions, set out in a letter dated May 27, 2005, the applicants said:
[translation] The purpose of this second question is not to obtain strict application of the provisions set out in section 16.1 or subsections 16(2) and 20(2) of the Charter to the respondent; rather, it is to determine whether the respondent must have regard to those provisions in determining how the Regulations made under the OLA in relation to the citizens of New Brunswick, who have special constitutional status. It may in fact be that from a letter of the law perspective, those provisions do not apply to the respondent, but that the respondent must nonetheless have regard to them in applying her duties in respect of language, which are set out in, inter alia, the OLA. . . . This second question presents the problem in a different light, in the submission of the applicants. Regardless of the nature of the acts performed by the Royal Canadian Mounted Police, the applicants' position is that it may not, having regard to the purpose of the OLA, disregard the enhanced language framework that applies to the two official language communities of New Brunswick in applying the OLA and the Regulations made thereunder in that province.
[49]It is important to note that the applicants are not challenging the constitutional validity of the Regulations, which contain very specific rules for determining whether there is significant demand within the meaning of subsection 20(1) of the Charter and section 22 of the OLA of Canada. They are not asking the Court to declare it to be of no force and effect. Rather, they have taken the position that the OLA of Canada and the Regulations could be validly interpreted having regard to subsection 16.1(1) of the Charter if the Court were to find that the RCMP, as a federal institution, has to have regard to that provision. On the other hand, the applicant provided no details as to how the specific language of the Regulations would lend itself to such interpretation.
[50]In addition, notwithstanding the generality of the question proposed, it must be noted that, having regard to the evidence and the fact situation before me, the Court can consider that question only as it relates to the concept of significant demand, as found in paragraph 20(1)(a) of the Charter and section 22 of the OLA of Canada.
[51]It should first be noted, with respect to subsections 16(2) and 20(2), that they set out the constitutional duties of institutions of the legislature and government of New Brunswick, while the OLA of Canada was enacted, and the Regulations made by Parliament for the purpose (even though they sometimes go beyond it) of implementing the constitutional duties of Parliament and the federal government in respect of language. I do not see why or how Parliament can be required to have regard to them in giving effect to its own duties. The Charter applies to Parliament and the Government of Canada only in matters that are within their jurisdiction (section 32 of the Charter).
[52]Those provisions are also not relevant in interpreting the OLA of Canada and the Regulations.
[53]In any event, even if we were to have regard to subsection 20(2) in interpreting subsection 20(1), I do not see how this could lead to the conclusion proposed by the applicants that the concept of "significant demand" necessarily covers New Brunswick as a whole. On the contrary, if we consider that the framers clearly chose to use different language to define their respective duties, we would have to conclude, rather, that the concept of "significant demand" does not necessarily mean that services must be provided in both languages everywhere in New Brunswick.
[54]The situation is different for subsection 16.1(1) since that provision sets out a principle of general application within the province of New Brunswick. In theory, therefore, under section 32 of the Charter, it is binding on Parliament and the federal government in the same way as the other general provisions of the Charter are.
[55]The respondent argued that the Court should not apply that general rule because it is clear that the statement of principle in subsection 16.1(1), which is an initiative of the legislature of New Brunswick and refers expressly to examples that are matters within provincial jurisdiction, cannot apply to Parliament and the federal government because, inter alia, the bilateral amendment mechanism set out in paragraph 43(b) of the Constitution Act, 1982 was used.
[56]In the applicants' submission, that mechanism may not be used to change the constitutional obligations of Parliament and the federal government. The Court has done a thorough review of the literature and case law cited by the respondent and cannot accept its position.
[57]It is plain that the bilateral mechanism set out in section 43 may be used only to amend provisions relating to the use of English and French in a province, in this case New Brunswick. That is the case whether subsection 16.1(1) is interpreted as being binding on both levels of government, federal and provincial, or only on the Government of New Brunswick.
[58]In Potter c. Québec (Procureur général), [2001] R.J.Q. 2823 (C.A.),4 the Quebec Court of Appeal rejected a similar argument to the effect that the 1997 constitutional amendment by which section 93A was added [SI/97-141], exempting Quebec from the effect of the provisions of subsections 93(1)-(4) [of the Constitution Act, 1967], was of no force or effect because the section 43 [of the Constitution Act, 1982] mechanism had been used despite the fact that the addition changed the division of powers between the federal and provincial governments.
[59]At paragraph 23, Justice Jean-Louis Baudouin wrote:
[translation] Second, the 1997 amendment did not operate to reduce that ancillary power to nothing, because the federal government may continue to exercise it in relation to the provinces other than Quebec. In short, the amendment merely limited the scope of the exercise of the ancillary power.
[60]Like the Quebec Court of Appeal, I believe that Parliament may alter its own obligations in respect of a province, in particular by way of section 43.
[61]In his article "Les modalités de la modification de la Constitution du Canada" (1999), 33 R.J.T.1, at pages 35-36, Benoît Pelletier noted that this provision has enormous potential in that it may [translation] "allow for a number of constitutional asymmetries. For example, one might `entrench' certain bilateral or multilateral agreements or one might add new constitutional provisions into the existing instruments." He added that, naturally, such agreements would have to be able to meet one essential requirement: "that they apply, in both spirit and letter, only to one or several provinces of Canada".
[62]That is also consistent with the nature of Canadian federalism, which, as the Supreme Court of Canada has held, permits different application of federal law in certain provinces for legitimate reasons.
[63]In Haig v. Canada; Haig v. Canada (Chief Electoral Officer), [1993] 2 S.C.R. 995, at pages 1046-1047, Justice Claire L'Heureux-Dubé, writing for the majority, said:
Clearly, in a federal system, province-based distinctions do not automatically give rise to a presumption of discrimination. Section 15(1) of the Charter, while prohibiting discrimination, does not alter the division of powers between governments, nor does it require that all federal legislation must always have uniform application to all provinces. It is worth emphasizing that, as Dickson C.J. commented in R. v. S. (S.), supra, at pp. 289-92, differential application of federal law in different provinces can be a legitimate means of promoting and advancing the values of a federal system. Differences between provinces are a rational part of the political reality in the federal process. Difference and discrimination are two different concepts and the presence of a difference will not automatically entail discrimination.
[64]Having regard to the principles of interpretation that I stated at the beginning of these reasons and to the evidence before me, there is nothing from which I could conclude that the general rule set out in section 32 does not apply to the statement of principle in subsection 16.1(1). The federal government must therefore have regard to that rule.
[65]That being said, this conclusion does not mean that the Court must answer "yes" to the question proposed by the applicants in the fact situation before me. The question proposed is not whether the statutory and regulatory provisions adopted by Parliament are valid; rather, it is whether a federal institution such as the RCMP is required to have regard to subsection 16.1(1) in interpreting the concept of significant demand as set out in paragraph 20(1)(a) of the Charter and section 22 of the OLA of Canada and in the Regulations.
[66]Parliament has given the Governor in Council the power to define the concept of significant demand having regard to, inter alia, the criteria set out in section 32 of the OLA of Canada. The Governor in Council has exercised that power, and it is therefore to the Regulations that the RCMP, as a federal institution, must refer for the purpose of interpreting and implementing its constitutional duties. As long as the Regulations are valid, the RCMP is required to apply them.
[67]Naturally, if there is any ambiguity, or if the language used in the Regulations lends itself to two interpretations, one of which would be more consistent with the duties described in the Charter, including the statement of principle in subsection 16.1(1), or in the OLA of Canada, it may and should adopt that interpretation.
[68]In this case, given that the language of the Regulations is specific, which in my view does not allow for a special interpretation for offices located in New Brunswick, the RCMP does not have this discretion; it must apply them as they stand. Naturally, and as I said earlier, the duties set out in these laws constitute a threshold, and there is nothing to prevent a federal institution from going beyond its statutory duties, if it thinks it appropriate.
[69]The Court would note, before concluding, that the finding that the government must consider the principle set out in subsection 16.1(1) does not mean that the Court accepts or supports, implicitly or in any other way, the conclusion proposed by the respondents regarding the interpretation of "significant demand".
[70]It is in fact by no means apparent that the collective rights that the two language communities in New Brunswick are recognized as holding have the impact suggested by the applicants on the individual right of members of the public to communicate or receive services in English or French, which is specifically described in paragraph 20(1)(a).
[71]In addition, the Charter refers to significant demand at an office of a federal institution.
[72]The Court also has insufficient evidence before it to determine whether, on the facts, the Regulations create an inequality between the two language communities. The flaws identified by the Commissioner of Official Languages in the various reports before the Court in respect of an active offer of service and the quality of the service actually offered seem to apply whether the service is offered in English or French. On that point, it is also important to note that those flaws relate to the quality of the service (level of language of the officers by whom the service is to be provided), an issue that is in no way before this Court.5
| (d) Third question: Does the RCMP have a duty under paragraph 6(1)(d) of the Regulations to offer its services in both official languages throughout the area served by the Woodstock detachment? |
[73]At the hearing, it became apparent that the respondent did not admit that the criteria in paragraph 6(1)(d), the interpretation of which was not disputed, apply to the Woodstock detachment. In order for the Court to be able to answer the third question, the applicants therefore had to produce evidence on those questions of fact. That evidence was not available at the hearing because the applicants and the intervener believed that those facts were not contested.
[74]To minimize costs and avoid delaying consideration of the other questions, the parties asked that the hearing be adjourned and that the Court answer the first two questions first because the third question might then in fact become moot.
[75]It was agreed that the parties would have 10 days after receiving the reasons relating to the first two questions to inform the Court whether it will be necessary to resume the hearing in order to dispose of the third question. These reasons are circulated at this stage for this sole purpose.
[76]The Court will make no order at this point to avoid having the time for appealing the decision regarding the two first questions run before the parties obtain a decision on the third question, if they consider such an appeal to be appropriate. If the parties inform the Court that there is no need to resume the hearing to dispose of the third question, the order in respect of the first two questions will be issued forthwith.
[77]However, if the parties ask the Court to set a date to hear evidence on the third question, a single order will be made, and only once the Court has reached a conclusion on the third question.
1 In fact, the parties advised the Court at the hearing that they were not in agreement on this point.
2 Reversed on procedural grounds (1990), 109 N.B.R. (2d) 54 (C.A.).
3 I note that section 25 of the OLA of Canada imposes a duty on federal institutions to ensure that where services are provided or made available by another person or organization on its behalf are provided in either official language in any case where those services would be required under this Part to be provided in either official language. That provision is very similar to the provision found in section 30 of the OLA of N.B.
4 Leave to appeal to the Supreme Court of Canada denied, [2002] 3 S.C.R. x.
5 With respect to language quality, see Doucet, at para. 43.
6 These provisions of the Official Languages Act were all enacted before section 16.1 was incorporated into the Charter.
7 These Regulations were made before section 16.1 was incorporated into the Charter.
APPENDIX A
Canadian Charter of Rights and Freedoms
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.
(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.
(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.
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.
(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.
. . .
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) there is a significant demand for communications with and services from that office in such language; or
(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.
(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.
. . .
32. (1) This Charter applies:
(a) to the Parliament and government of Canada in respect of all matters within the authority of Parliament including all matters relating to the Yukon Territory and Northwest Territories; and
(b) to the legislature and government of each province in respect of all matters within the authority of the legislature of each province.
(2) Notwithstanding subsection (1), section 15 shall not have effect until three years after this section comes into force.
Constitution Act, 1982
43. An amendment to the Constitution of Canada in relation to any provision that applies to one or more, but not all, provinces, including:
(a) any alteration to boundaries between provinces, and;
(b) any amendment to any provision that relates to the use of the English or the French language within a province;
may be made by proclamation issued by the Governor General under the Great Seal of Canada only where so authorized by resolutions of the Senate and House of Commons and of the legislative assembly of each province to which the amendment applies.
Official Languages Act6
2. The purpose of this Act is to
(a) ensure respect for English and French as the official languages of Canada and ensure equality of status and equal rights and privileges as to their use in all federal institutions, in particular with respect to their use in parliamentary proceedings, in legislative and other instruments, in the administration of justice, in communicating with or providing services to the public and in carrying out the work of federal institutions;
(b) support the development of English and French linguistic minority communities and generally advance the equality of status and use of the English and French languages within Canadian society; and
(c) set out the powers, duties and functions of federal institutions with respect to the official languages of Canada.
. . .
22. Every federal institution has the duty to ensure that any member of the public can communicate with and obtain available services from its head or central office in either official language, and has the same duty with respect to any of its other offices or facilities
(a) within the National Capital Region; or
(b) in Canada or elsewhere, where there is significant demand for communications with and services from that office or facility in that language.
23. (1) For greater certainty, every federal institution that provides services or makes them available to the travelling public has the duty to ensure that any member of the travelling public can communicate with and obtain those services in either official language from any office or facility of the institution in Canada or elsewhere where there is significant demand for those services in that language.
. . .
32. (1) The Governor in Council may make regulations:
(a) prescribing the circumstances in which there is significant demand for the purpose of paragraph 22(b) or subsection 23(1); . . .
(2) In prescribing circumstances under paragraph (1)(a) or (b), the Governor in Council may have regard to
(a) the number of persons composing the English or French linguistic minority population of the area served by an office or facility, the particular characteristics of that population and the proportion of that population to the total population of that area;
(b) the volume of communications or services between an office or facility and members of the public using each official language; and
(c) any other factors that the Governor in Council considers appropriate.
Official Languages (Communications with and Services to the Public) Regulations7
5.(1)h) . . .
(i) the service area of the office or facility has at least 500 persons of the English or French linguistic minority population and the number of those persons is equal to at least 5 per cent of the total population of that service area,
. . .
(4) Subsections (1) to (3) do not apply in respect of
(a) services described in paragraph 6(1)(a); or
(b) an office or facility described in any of paragraphs 6(1)(b) to (e), subsection 6(2) or section 7.
. . .
6.(1) . . .
d) the office or facility provides services other than immigration services and is located at a place of entry into Canada, other than an airport or a ferry terminal, in a province in which the English or French linguistic minority population is equal to at least 5 per cent of the total population in the province, and at that office or facility over a year at least 5 per cent of the demand from the public for services is in that language; or
Police Act
2(1) The Lieutenant-Governor in Council may enter into agreements with Canada for the employment of the Royal Canadian Mounted Police to enforce the law and to assist in the administration of justice within the Province.
. . .
(2) Every member of the Royal Canadian Mounted Police, every member of a police force and every auxiliary police constable appointed under this Act has all the powers, authority, privileges, rights and immunities of a peace officer and constable in and for the Province of New Brunswick, and is ex officio an inspector under the Motor Carrier Act, a peace officer under the Motor Vehicle Act and a conservation officer under the Fish and Wildlife Act, and each member of and above the rank of corporal may exercise the powers conferred by section 9 of the Fire Prevention Act.
Royal Canadian Mounted Police Act
18. It is the duty of members who are peace officers, subject to the orders of the Commissioner,
(a) to perform all duties that are assigned to peace officers in relation to the preservation of the peace, the prevention of crime and of offences against the laws of Canada and the laws in force in any province in which they may be employed, and the apprehension of criminals and offenders and others who may be lawfully taken into custody;
(b) to execute all warrants, and perform all duties and services in relation thereto, that may, under this Act or the laws of Canada or the laws in force in any province, be lawfully executed and performed by peace officers;
(c) to perform all duties that may be lawfully performed by peace officers in relation to the escort and conveyance of convicts and other persons in custody to or from any courts, places of punishment or confinement, asylums or other places; and
(d) to perform such other duties and functions as are prescribed by the Governor in Council or the Commissioner.
. . .
20. (1) The Minister may, with the approval of the Governor in Council, enter into an arrangement with the government of any province for the use or employment of the Force, or any portion thereof, in aiding the administration of justice in the province and in carrying into effect the laws in force therein.
(2) The Minister may, with the approval of the Governor in Council and the lieutenant governor in council of any province, enter into an arrangement with any municipality in the province for the use or employment of the Force, or any portion thereof, in aiding the administration of justice in the municipality and in carrying into effect the laws in force therein.
(3) The Minister may, with the approval of the Treasury Board, in any arrangement made under subsection (1) or (2), agree on and determine the amount of money to be paid by the province or municipality for the services of the Force.
Official Languages Act
1. . . .
"peace officer" means a peace officer as defined under section 1 of the Provincial Offences Procedure Act who serves the public, whether on behalf of the Province, a municipality or under a contract for the delivery of policing services with the Province or its institutions and includes a police officer as defined under that Act;
. . .
27 Members of the public have the right to communicate with any institution and to receive its services in the official language of their choice.
. . .
30 The Province and its institutions are responsible for ensuring that all services offered to the public by third parties on their behalf are delivered in both official languages.
31(1) Members of the public have the right, when communicating with a peace officer, to receive service in the official language of their choice and must be informed of that right.
31(2) If a peace officer is unable to provide service in the language chosen under subsection (1), the peace officer shall take whatever measures are necessary, within a reasonable time, to ensure compliance with the choice made under subsection (1).
31(3) A police force or agency, as the case may be, shall ensure the availability of the means necessary to respond to the choice made by a member of the public under subsection (1) and to support the obligation placed on a peace officer under subsection (2).
APPENDIX B
| 3.1 b) The minimum standard of policing by the Provincial Police Service shall meet the standard as determined by the Commissioner in consultation with the Minister. |
. . .
| 3.1 c) The level of policing service by the Provincial Police Service shall meet the level as determined by the Minister in consultation with the Commissioner. |
. . .
| 3.1 d) The level of policing service as determined by the Minister under paragraph (c) shall not be less than the minimum standard as determined by the Commissioner under paragraph (b). |
| 4.1 For the purposes of this Agreement, the Commanding Officer shall act under the direction of the Minister in aiding the administration of justice in the Province and in carrying into effect the laws in force therein. |
. . .
| 4.2 The Commanding Officer shall: |
| a) implement the objectives, priorities and goals as determined by the Minister under subarticle 3.3, including, to the extent practicable, the deployment of the Provincial Police Service personnel and equipment to reflect provincial priorities; |
| b) consult with the Minister on a regular basis to provide information pertaining to the operational and administrative status of the Provincial Police Service; such consultation shall occur as and when required but in no case on less than a quarterly basis and, with respect to the financial reporting required by paragraph 15.1(f), on a monthly basis. |
| c) provide the Minister with an annual report, by July 1 of each year, on the status of the implementation of the Province's objectives, priorities and goals of policing within the Province during the previous Fiscal Year; |
| d) in a reasonable and timely way, provide the Minister or the Attorney General with any information that comes into the possession of any Member employed in the Province and which affects the administration of justice in the Province; the information shall be provided in a manner and in a form to be agreed upon by the Commanding Officer and the Minister or Attorney General; and |
| e) provide the Minister each month with the particulars of any new or outstanding complaints made against the Service by any member of the public to the Force; the form and substance of the particulars shall be agreed upon by the Commanding Officer and the Minister. |
. . .
| 7.1 a) Subject to paragraph (b), the number and location of Detachments and Units and any changes to the organizational structure of the Service, shall be arrived at by agreement between the Minister and the Commissioner. |
. . .
| 7.3 For the purposes of human resource planning for the next Fiscal Year, the Commanding Officer shall consult with and obtain approval, or approval in principle, from the Minister on or prior to September 1 of each year, for the number of Members and Support Staff required to maintain the level of the Provincial Police Service as determined by the Minister pursuant to paragraph 3. l(c). |
. . .
| 7.4 The Commanding Officer, upon receiving reasonable notice, shall provide the Minister with any additional information relating to human resource and organizational planning of the Service. |