Introduction to the language of courts and proceedings

This section presents the constitutional and legislative provisions that require measures on the subject of the language of tribunals and judiciary proceedings. The right to use one’s own language at the tribunal allows for the equitable participation of the representatives of the linguistic minority in the debates.

Canada's judicial organization is complex. To better comprehend language rights, we need to elaborate on the subject.

The Federal Parliament can create courts to administer the “laws of Canada” (section 101 of the Constitution Act 1867), and in fact it has created the Supreme Court of Canada, the Federal Court, the Federal Court of Appeal, as well as other federal courts and tribunals like the Court-Martial, Tax Court of Canada, Canadian International Trade Tribunal, the Competition Tribunal, and the Canadian Human Rights Tribunal. These organizations are “federal institutions”, and section 19(1) of the Canadian Charter or Part III of the Official Languages Act of Canada will apply to these federal courts. The federal government is also responsible for the federal penitentiary that arbitrates persons having received sentences of two years or more, the Parole Board of Canada, and the parole officers, as well as the federal police (RCMP and other federal police forces).

The provinces (and territories) are responsible for the administration of justice in their jurisdiction, including the creation of courts. The provinces (and the three territories) have a general court of appeal for the province, the superior courts that existed before their entry into confederation, and the provincial courts along with other administrative tribunals. The federal government appoints judges to the superior courts (section 96 of the Constitution Act, 1867), the provinces appoint judges to the remaining courts. For all trials other than criminal ones, and under the constitutional requirements that apply in certain provinces, each province (and each territory) can govern the language of judiciary procedures, language of trial, the language of the prosecution and judges, the language of judgements and rulings, and the language of appeals before the courts. The provinces are also constitutionally responsible for legal aid, prisons for sentences of less than two years, the review board for mental disorders, psychologists, social workers, youth courts, and human rights commissions.

Consequently, the linguistic situation is complicated difficult to explain. Access to services in the minority language with regards to justice depends at times on federal laws, and sometimes on provincial and territorial laws. This section concerns itself solely on the language of judicial proceedings and on the federal and provincial courts. Everything that deals with legal aid, prisons and penitentiaries, the police (except when it issues Judiciary procedures), social reintegration, and victim aid, falls under the umbrella of “services” offered to the “public.”

This section is divided into three parts: Constitutional requirements, federal legislation, and provinces and territories.

Constitutional law

In judicial terms, constitutional requirements apply to four jurisdictions: The federal government, Québec, New Brunswick, and Manitoba.

Speaking of the federal jurisdiction, two constitutional provisions apply: Section 133 of the Constitution Act 1867 and paragraph 19(1) of the Canadian Charter. Each of these provisions applies to the Courts established by the Parliament of Canada. In other words, the Supreme Court of Canada, the Federal Court of Appeal, the Federal Court, and the other federal tribunals.

In New Brunswick, paragraph 19(2) of the Canadian Charter guarantees the right to use French or English in the courts of New Brunswick or in the proceedings that stem from the tribunals.

Jurisprudence indicates that the two provisions, section 133 and section 19, are to be interpreted in the same way: Société des Acadiens, majority ruling, under judge Beetz. InMacDonald, the Supreme Court ruled that the authors of Judiciary procedures coming from a Québécois tribunal have the right to choose the language in which the documents are drafted. In Société of Acadians, the Court ruled that the right to use French or English before the tribunals of New Brunswick or in the proceedings does not establish the right to be understood by the judges directly in the chosen language without the help of an interpreter.

In the two cases, it is reasonable to presume that the same conclusion applies to the right to use French or English before the federal tribunals. In these two rulings, a literal interpretation of sections 133 and 19 was applied, in light of the fact that language rights are political compromises: The tribunals do not have to, therefore, change their nature. Even if the rule of restrictive interpretation founded on a political compromise was abandoned in Beaulac and never applied thereafter, the core of the two decisions has remained unchanged to this day: A person has the constitutional right to use French or English before the federal, Québécois, Manitoban, or New Brunswick courts, but not that of being understood by the judge without an interpreter. A judge can choose to draft his judgment in English even if all the parties are Francophone. Court summons can be written in French even if the accused is Anglophone. According to the Supreme Court, if that ruling does not satisfy the jurisdiction in question, they can modify the rule through a law. We shall see how the laws have modified that rule.

In Québec, there exists only a single applicable provision: Section 133 of the Constitution Act of 1867. Its interpretation has already been discussed above.

In Manitoba, the applicable provision is section 23 of the Manitoba Act, 1870, which acquired a constitutional status through section 5 of the Constitution Act of 1867. This article does not apply to all Manitoban courts. It is interpreted in the same way as section 133 mentioned above.

Outside of these constitutional requirements, each province or territory is free to legislate concerning the subject of language in its courts: Conseil scolaire francophone de la Colombie‑Britannique v. British Columbia, 2013.

Federal laws

Following Société des Acadiens and before the outcry provoked by the absurdity of the decision (one has the right to speak one’s language before the tribunals but not that of being understood!), the federal legislator was forced to intervene. Three federal statutes govern the language of tribunals in the areas of federal jurisdiction: Part XVII of the Criminal Code, section 23.2 of the Divorce Act, and, of course, Part III of theOfficial Languages Act of Canada.

Provincial and territorial laws

Let us remember that the provinces and territories are responsible for the languages of civil and quasi-criminal proceedings before their tribunals, but they must respect the rules of the Criminal Code in as much as it deals with criminal proceedings before their courts. If litigation takes place before a provincial tribunal and concerns a federal law other than the Criminal code (for example, divorce) but that the federal parliament has not imposed rules regarding the language of the proceedings, the provincial linguistic regime is to be applies because the case is before a provincial tribunal, even for the provincial tribunals where the federal government appoints the judges.