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.
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. In MacDonald, 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.
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 the Official Languages Act of Canada.
Criminal Code - Part XVII
Part XVII of the Criminal Code applies to criminal charges that are heard before the provincial courts (provincial courts where the judges are appointed by the province) or the superior court (court created by the provinces but where the judges are appointed by the federal government). This implies, therefore, that the provinces appoint sufficient bilingual judges to its provincial courts in order to hear criminal proceedings in the two languages; and that the federal does the same for superior court judges; that the jurors that chair the criminal proceedings before the superior courts be capable of following the proceedings in the language in which they unfold; and that the legal terminology be adequate.
Section 530 of the Criminal Code indicates that the accused has the right to ask that his due process take place in his official language. In Beaulac, the court has decided that the “language of the accused” stems from a personal choice; that the burden of proof falls on those that challenge the accused’s choice of language; and that the relevant test is the ability of the accused to give instructions to his lawyer. In the case of the accused whose language is not an official language, the judge ordains that the proceedings unfold in the official language that will permit the accused to bear witness most easily, or in the two if the circumstances justify it (section 530(2)). The judge before whom the accused appears for the first time must ensure that the accused is informed of his right (section 530(3)). The failure to notify the accused at his first appearance led to a new trial: R v. Mackenzie. If the accused does not forward a request, but the judge before whom the accused is to be tried is satisfied that it will be in the best interests of justice for the accused to be tried by a judge who speaks his language, or if the language of the accused is not one of the two official languages, the official language which will enable the accused to testify more easily or, according to the circumstances, of the two official languages in question (section 530(4)). A trial order in one language can be modified so that the process takes place in the two official languages or vice-versa (section 530(5)). Notably, if the co-accused have to be tried together and that they do not speak the same official language (section 530(6)). These are called “bilingual trials”. The appeal Court of Ontario has ruled that in the case of a preliminary bilingual inquiry, each co-accused has the right to a procedure that unfolds in his own language; in other words everything must happen in the two languages, and a breach of this requirements led the Court to repeal a summons to trial following a preliminary inquiry (R v. Munkunda).
In the case of a bilingual trial, the judge can, at the beginning of the proceedings, deliver an order stipulating the extent to which each official language will be used by him and by the prosecutor (section 530.2).
When an order is given, if the accused cannot undergo his process in the corresponding judicial riding, the judge can transfer his file to another riding in the same province, except in New Brunswick (section 531).
This right is absolute and the administrative considerations shall not impede its realization. In the case of a breach, a new process will be ordered by the appeal tribunal: R v. Beaulac. In a case in New Brunswick, the Court excluded the evidence due to the breach of linguistic rights according to section 24(2) of the Canadian Charter, which led to the acquittal of the accused: R v. Losier.
When an order is given, it entrenches linguistic consequences for the preliminary inquiry and the trials, but not for the appeals; in this case, it is the provincial language regime that applies.
By virtue of section 530.01, a public prosecutor must have translated into the language of the accused any passage of denunciations and indictments in the other official language. In the case of any divergences between the translation and the original, the original version shall prevail.
When a language order is given the conferred rights are the following, as listed in section 530.1:
1. The accused and his lawyer can use either official language;
2. The witnesses can bear witness in either official language;
3. In exceptional cases, the judge can authorize a prosecutor to interrogate or cross-examine a witness in his own language, even if it is not the language of the accused;
4. The accused has the right to a judge and prosecutor that speak his language, or both depending on the case;
5. The tribunal must provide interpretation services for the accused, his lawyer and the witnesses;
6. The file contains the entire debate as well as the transcription of the interpretation if it took place;
7. The judgment must be made available in the language of the accused.
Section 638(1)(f) allows the prosecutor or the accused to ask for the disqualification of any candidate on the basis that he or she does not speak the official language of the trial or both official languages, as the case may be, where an order has been made under section 530. According to the Wilkins judgment, it is necessary to proceed on a case by case basis.
Finally, the pre-printed forms used in criminal law must be in both languages (section 849 (3)).
Official Languages Act of Canada - Part III
Under the title “Administration of Justice,” Part III of the Official Languages Act targets all federal courts.
Section 14 specifies that French and English are the official languages of the courts and that each can make use of either in all the cases and proceedings.
Section 15 indicates that the court has to ensure that the witnesses are able to testify in the official language of their choice; the tribunals have to also provide simultaneous interpretation for the witnesses, or if the case if of public importance or important to the audience. These terms have never been interpreted in jurisprudence.
Section 16 is of great interest. It specifies that the judge hearing the case understands the language of the trial, or both when the parties choose to use each language, but this rule does not apply to the Supreme Court of Canada. In Société des Acadiens and in Caron, the Supreme Court ruled that such a requirement for the Supreme Court of Canada could make necessary a constitutional modification. The procedure by which the candidates for a post must demonstrate a certain degree of bilingualism does not go this far: It is an administrative procedure, not a rule based on law, and it does not apply to the judges in office so that its constitutionality is not dubious.
Section 17 requires the Supreme Court of Canada, the Federal Court of Appeal, and the Federal Court to adopt rules of practice and procedure that permit them to meet their obligations. All of them did so: Rule 11 of the Rules of the Supreme Court of Canada; Rules 314(2) and 347(3)(f) of the Federal Court rules.
Section 18 requires the prosecutors and federal lawyers to use the languages of the parties, otherwise to use that which is the most justified under the circumstances.
Section 19 specifies that the printed material be in the two official languages, or in one language if a translation is available upon request. The [forms] can be filled in one language, but a translation can be obtained by the author.
Section 20 targets the decisions. It is not really clear. Paragraph 20(1) states the principle and paragraph 20(2) establishes the exceptions, but in the absence of a regulation or of judicial rulings which have interpreted these terms, no one knows what they mean in practice. According to paragraph 20(1), the general rule states that the decisions, including reasons, are “made available to the public” (and not “published”) simultaneously in the two languages, in two cases: a) when the point of law presents an interest (which interest?) or of the importance (what is considered important?) for the public (who decides?); or b) when the debates take place “in part or in whole” (which part?a little? a single word?) in the two languages, or again when the proceedings have been drafted “in part or in whole” in the two languages (same question). According to paragraph 20(2) that defines the exception, two situations seem to allow that decision to be “made” (and not “made available to the public” as in paragraph 20(1)) in a language, then the other “as soon as possible” (what is “as soon” as possible? Is is the same thing for a ruling taking 5 pages or 200?). These two situations are: 1) if the tribunal deems that the establishment, according to paragraph 1(a) (that is to say, let us remember that, when the point of law represents the interest or is of importance to the public), of a bilingual version would results in a harmful delay for the public interest (what is harmful for public interest?), or 2) would cause an injustice or a grave inconvenience to one of the parties (what would be unjust? What could become an grave inconvenience? Who decides?).
Only a single judgment concerns Section 20: It is Devinat v. Canada. The federal court decided that in the absence of evidence relating to the exception, all decisions by the Committee on Immigration and Refugee Status must be simultaneously bilingual. In reaction to this judgment, the Committee stopped publishing its decisions.
The federal government should adopt a regulation to specify the application of this provision.
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.
In quasi-criminal matters, (regulatory offenses, traffic offenses, etc...) Part XVII of the Criminal Code applies to provincial prosecutions: Section 3 of the Provincial Offences Procedure Act, RSA 2000, c. P-34. However, the Languages in the Court Regulation specifies that before every Albertan court, if a defendant wants to use French in his communications, he should give notice. A judge can also rule that a proceeding be carried out in French on the basis of a request from the defendant and the consent of the prosecutor, in which case the French translations of the English documents submitted by the prosecution shall be at the expense of the prosecution and the translation into French of the English documents submitted by the defense shall be at the expense of the defendant. Finally, section 4 provides the possibility to hold a processing in the two languages, by request of the defendant and with the consent of the prosecution.
Section 110 of the Northwest Territories Act, authorizes the use of French or of English in the judicial appeals and proceedings before the territorial court. It has continued to be applied in Alberta but this last provision could be rescinded since it is not part of the Canadian Constitution: R v. Pacquette, R v. Mercure, Caron v. Alberta. It has been rescinded in Alberta by section 7 of the Language Act.
The right to use French before the Court of Appeal, the Court of the Queen’s Bench, or the Provincial Court, is limited to oral appeals: Section 4 of the Language Act. In Pooran, the provincial court deemed that this would confer the right to a judge that understands [the proceedings] without an interpreter. But in a previous ruling, Garcia, the Court of the Queen’s Bench, a superior court, judged that that would not confer the right to use the language and to request a translation to the benefit of the Court.
In terms of civil matters, the ruling Conseil scolaire francophone de Colombie-Britannique shows that in this province, an English law from 1731 requires English as the language of the judicial proceedings (oral or written) and that this law, never having been repealed by the province, continues to apply. The French language does not have any rights before the civil courts of British Columbia.
Article 23 of the Manitoba Act (1870) stipulates that French or English can be used before the province’s tribunals. Through the application of MacDonald, the author of the judicial proceedings can draft documents in the language of his choice and by the application of Société des Acadiens, the judge is not obliged to understand the proceedings without an interpreter.
No other legal provision, other than section 23 already mentioned, targets languages in the law. However, the Court of Appeal of Manitoba has adopted the Rules of Practice in relation to the use of languages. Rule 111 allows for the introducing act to be drafted in English or in French. Rule 112 requires a bilingual mention that specifies the approach to be followed and the notice to be filed. Rule 113 requires notice be given within 21 days of the filing of the introductory document. Rule 114 is interesting: if notice is not given the proceedings will take place in the language of the introductory act. Rule 115 allows a judge to prolong the delay. Rule 119 allows the judge or a registrar to proclaim an order in relation to language; according to rule 120, this order governs the use of French or English. Rule 121 specifies the modalities of translation; rule 122 indicates that the order can require the Attorney General to provide simultaneous interpretative services. According to rule 124, when the order is given, the judgment and its reasons can be disseminated in the two languages. Finally, according to rule 125, if an order is given, the certificate of decision and the orders are to be in the two languages; otherwise, they are to be in the language of document introducing the proceedings.
Part IX of the City of Winnipeg Charter requires certain language obligations in the sectors designated by the city. In R v. Rémillard, the accused were acquitted of the charges as the Court of appeal ruled that a traffic ticket issued after a photo-radar if in a designated sector should be bilingual not only for its pre-printed segments but also in its wording.
The Official Languages Act contains diverse provisions related to the languages of the tribunals.
Section 16 specifies that French and English are the official languages. Section 17 takes up the terms of section 19(2) of the Charter of Rights and Freedoms. Section 18 indicates that no one may be discriminated against because of their language choice. Section 19 requires the court to understand the official language chosen without interpretation, or the two as may be the case. Section 20 permits those accused of breaking a provincial law to choose the language of the proceedings. This must be conveyed by the presiding judge before recording the plea. The accused has the right to be understood by the Court without interpretation.
Section 21 allows the witnesses to testify in the official language of their choice. Upon request by a party or witness, the tribunal will offer translations.
Section 22 requires government lawyers to choose the language of the other party, or, according to section 23, that which is the most justified under the circumstances. In Charlebois v. the City of Saint-John, the Supreme Court determined that this provision does not apply to municipalities in the civil domain: These can choose the language of their procedures and pleas according to section 17.
Section 24 takes up the elements of section 20 of the federal law: The judgments are published (rather than “made available to the public”) in the two languages when the point of the law is of interest to the public, or when the two languages have been used. In the other cases, or where there would be prejudice towards one party or when a delay would be contrary to the public interest, the decision is published in one language rather than the other. Section 25 is notable: The decisions of the Court of Appeal are presumed to meet the conditions of section 24, they must therefore normally be published simultaneously in the two languages. Finally, section 26 mentions that the decisions published in one language are nevertheless valid.
Regulation 85-165 provides a certification procedure for translators and the legal value of the translated documents.
Regulation 86-2 provides a procedure to be followed when an interpreter is required.
Newfoundland and Labrador
In quasi-criminal matters (regulatory offenses, and traffic offenses, etc...) Part XVII of the Criminal Code applies to provincial prosecutions: Provincial Offenses Act, SNL 1995, ch. p-31.1, sec. 6. No provincial law or rule touches on the language of proceedings. By default, procedures unfold in English.
In civil subjects the Official Languages Act NWT, as modified, contains provisions related to judiciary proceedings. It should be noted that by virtue of section 4 of this law, there are eleven official languages: English, French, Chipewyan, Cree, North Slavey (Sahtú), South Slavey (Deh Cho), Gwich’in, the Inuinnaqtun, Inuktitut, Inuvialuktun, and Tichlo. In practice, only French and English are on an equal footing, the aboriginal languages enjoy a legal treatment adapted to the context. In terms of how French and English are used before the territorial tribunals, the provisions take up the federal regime.
Section 9 reproduces Section 15 of the federal law: Persons can use French or English before the courts and their proceedings. Paragraph 9(2) accords the right to use the 7 other languages before the courts. Paragraph 9(3) allows the court to ensure interpretation from one official language to the other if it deems it of importance or necessary for the public.
Section 10 reproduces section 20 of the federal law: The decisions are made (and not “published” or “made available to the public”) in French and in English when the point of the law is of importance to the public, or when the debates take place in the two official languages. The exception found in paragraph (2) allows the subsequent translation, with the understanding that the delay caused by the translation may result in a harm to the public or cause harm to a party. Paragraph 10(4) requires that the decisions also be recorded on audiotape in one or more of the other official languages, and that copies are provided on request when a decision touches a point of interest for the public, that it be possible to provide the copies, and that the communication is aimed at increasing public awareness.
In terms of quasi-criminal matters (regulatory offenses, traffic offenses, etc...), Part XVII of the Criminal Code is applicable to provincial prosecutions: Summary Proceedings Act, RSNS 1989, ch. 150, sec. 7
No other legal provisions govern the language of civil proceedings. The language used is English.
The Official Languages Act indicates that there are three official languages in the territory: French, English, and Inuit. It contains certain measures related to judicial and quasi-judicial courts.
Section 8 permits the use of every official language, including the person that presides over the hearing regardless of the level of bilingualism. A party or a witness also has the right to request and receive interpretation services in their preferred official language and to be notified about it.
Section 9 gives the right to “every person before a judicial or quasi-judicial organization” to request and receive a printed or oral translation of the definitive version of the judgment. The right is extended to the public when the point of the law represents the interest of the public, for the community of the official language in question, or for a participant having used the official language in question. Paragraph 9(3) takes up the exceptions to the simultaneity of interpretation at the federal and New Brunswick levels (harm to public interest or unfairness to a party). Paragraph 9(4) holds the validity of the made decisions in a single language.
Section 10 permits the Court of Appeal and the Court of Nunavut to adopt rules of practice for the implementation of these rights. Section 38(1c) permits the Commissioner in Council to adopt a regulation on implementation for other judicial or quasi-judicial bodies.
The Courts of Justice Act, RSO, 1990 c. C.43 contains the dispositions related to the language of proceedings.
Section 125 specifies that French and English are official languages of Ontario’s courts; but that the proceedings take place in English, except if the law authorizes the use of French.
Section 126 organizes “bilingual proceedings.” In these cases, two situations become apparent: Those that take place in the designated regions (which do not correspond to the designated regions for the services) and every other case.
The applicable language rights in all cases are:
1. The hearing is presided by a judge that speaks the two languages
3. For hearings without a jury, the testimonies are received, recorded, in their own language.
5. Oral testimonies given outside the presence of the tribunal are received, recorded and transcribed in their own language.
7. A party may file a plea and other documents in French if the present parties give their consent, outside the designated regions.
8. The reasons for the decision are drafted in either language.
9. Upon request by a party or a lawyer that speaks French but not English or vice-versa, the court provides an interpretation of what was communicated orally in another language, by virtue of points 2 and 3, and the translation of the reasons of a decision drafted in another language.
126(2.1.) In a quasi-criminal prosecution where the prosecutor speaks the two languages:
126(3) appeals in a bilingual proceeding are presided by a bilingual judge.
126(4) Every document filed by a party, before an audience at a family court, Court of Justice of Ontario, or Small Claims Court, can be filed in French.
126(5) A proceeding in a criminal case, or before Family Court, or a court of justice, can be drafted in French.
126(6) The court provides a translation of a drafted document in another language according to paragraph (4) or (5), upon request by a party.
126(7) In a case before a jury outside of a designated region, if a person that is representing himself or French-speaking witness, the court provides an English interpretation.
Certain rules target the proceedings before a jury in the designated regions:
2. The jurors speak the two languages
3. The witnesses are received, recorded, and transcribed in the language in which they are given.
Finally, one rule targets designated regions, other than those that are for the purposes of the trial by jury: A party can file all documents in French, without the consent of others (126 (2) point 6)
Prince Edward Island
Section 133 of the Constitution Act 1867 stipulates that French or English can be used before the courts of the province: Section 7(4) of the Charter of the French Language gives every person the right to use French or English“ in all the affairs where that are dealt with by the courts of Québec and in all the proceedings that follow.” Remember that this does not give the right to a judge or prosecutor that speaks that language nor understands it without interpretation. In quasi-criminal or civil matters, therefore, litigants in Québec using English do not have the same right as in criminal matters.
Otherwise, sections 9 requires that all judgments given by the judicial or quasi-judicial courts shall be translated in English or in French as the case may be, upon request by a party (not a witness, journalist, or third party), at the expense of the Government. Sections 95 through 97 provide a special language regime for judicial procedures in relation to the Cree, Inuit (under the James Bay convention) and Naskapis (according to the North-Eastern Quebec convention) peoples.
Section 4(i) the Jurors Act stipulates that persons who do not speak French or English fluently cannot chair as jurors. Section 30 indicates that a Francophone assigned to an English unilingual jury who is unable to speak that language fluently can be transferred to a unilingual French jury or vice versa. Section 45 allows an ‘Indian’ or Inuk to chair as juror if the accused is an ‘Indian’ or Inuk, even if he or she does not speak French or English.
Article 110 the Northwest Territories Act, that authorises the use of French or English in pleas and judicial proceedings before the courts of the territory, has continued to apply in Saskatchewan, but this last could be rescinded because it is not part of the Canadian Constitution: R v. Mercure, Boutin v. R (Saskatchewan).
The Language Act of Saskatchewan stipulates, in section 11, that French and English can be used before the Court of Appeal, the Court of the Queen’s Bench, the Provincial Court, and the Provincial Highway Safety Court. Rules, published in French and English, have to adopted accordingly. The rules of practice of the Court of the Queen’s Bench in French, contain also the judicial forms in French; the same goes for the rules of the Court of appeal.
In quasi-criminal matters (regulatory offenses, traffic infractions, etc...) Part XVII of the Criminal Code applies to provincial prosecutions: Summary Conviction Procedures Act, LRY 2002, c. 210, sec 7.
In civil matters, section 5 of the Language Act of Yukon, LRY. 2002, ch. 133, reproduces section 19 of the Charter. It is worth noting that French and English are not declared official languages in the territory. In Halotier, 2007, YKCA 12, the Court of Appeal of Yukon judged that this provision gives the right to deposit documents in French, and to use French in the communications with the court registry, to have one’s words recorded in French, and the minutes of the hearing must include testimony in the language in which it is presented, and that the rules of practice must be in French. However, the provision does not give the right to a judge or prosecutor that understands the parties without an interpreter.