Judiciary

Your right is enshrined in theCanadian Charter of Rights and Freedoms (Charter), the Constitution Act of 1867 and the Manitoba Act of 1870.

What is a judicial right?

A judicial right is one that pertains to activities in connection with trials.

The trial may be administrative, judicial or quasi-judicial (meaning that it is both administrative and judicial) in nature. Some rights may apply to all types of courts while others may apply only to judicial courts. 

Constitutional language rights in the judiciary field are written in:

• Section 133 of the Constitution Act of 1867
• Section 23 of the Manitoba Act of 1870
• Section 19 of the Canadian Charter of Rights and Freedoms.

What constitutional documents guarantee judicial rights?

In 1867, Canada was created by the British North America Act, now known as the Constitution Act, 1867. Section 133 of this act guarantees rights in the legislative and judicial areas to Canadian citizens and inhabitants of Québec.

In 1870, the Manitoba Act gave legal status to the province of that name and guaranteed legislative and judicial language rights to its inhabitants.

Then, in 1982, the adoption of the Canadian Charter of Rights and Freedoms guaranteed a number of language rights to the Canadian public, to Canadian citizens as well as to official language communities as stated in Sections 16 to 23 of the Charter. Furthermore, the Charter guarantees constitutional language rights to New Brunswick inhabitants and official language communities in these four areas: legislative, judicial, education and communications and services

For more information, see this table on judicial rights.

Language and the sharing of powers

Language is not listed in the sharing of powers set out in the Canadian Constitution. It is “accessory” to the powers of the Parliament and the legislatures set out in sections 91 to 101 of the Constitution Act, 1867. This means that each government can pass laws in its fields of jurisdiction that include provisions on the use of languages, as long as that the obligations set out in the Canadian Constitution are complied with.

The Northwest Territories, Yukon and Nunavut have legislative power that was given to them by the federal government when they were created. The enabling act of each territory states their powers. As a general rule, their powers are similar to those of the provinces, but are not enshrined in the Canadian Constitution.

The language obligations of the territories are set out in the law that created them and are similar to those of the federal government.

• Northwest Territories: The Northwest Territories initially made up a major part of the Canadian territory. The area of the Northwest Territories was reduced with the creation of the provinces, particularly of Alberta and Saskatchewan in 1905.
• Yukon: Canada enacted the Yukon Territory Act in 1898, which designated Yukon as an independent territory with Dawson as its capital. The purpose of the act was to create an administrative body for the entire Yukon territory. Its full title is An Act to provide for the Government of the Yukon District (short title: The Yukon Territory Act), Statutes of Canada 1898 (v. I-II), c. 6, p. 55 -61.
• Nunavut: The Nunavut Land Claims Agreement Act, which ratified the agreement, and the Nunavut Act, which created the new territory, were both passed on June 10, 1993.

In some cases, powers may be shared: the federal government has the power to adopt a law in a particular field, but the law is administered by the province.

For example, the federal government has exclusive power to amend the Criminal Code and criminal procedures. However, because of their exclusive power to administer justice, the provinces enforce the Criminal Code and criminal procedures during trials. The federal government is then said to have delegated its obligations to the provinces.

Note: Unlike obligations in the areas of education and of communications and services, there is no criterion for the definition of a rights holder in the legislative and judicial areas. This means that rights in these areas are applicable to everybody without any restrictions or conditions.

These federal laws impose obligations regarding constitutional language rights on Parliament (legislative rights) and federal courts (judicial rights).

Provincial governments have authority or jurisdiction to act, for example, in matters relating to:

• provincial courts
• provincial legislatures.

The provinces, then, also have obligations regarding constitutional language rights in connection with provincial courts (judicial rights) and provincial legislatures (legislative rights).

RED ARROW: When a province administers a federal law, obligations regarding constitutional language rights do not disappear; the province is therefore required to comply with the obligations contained in the federal law.