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Language - Official Languages Act (OLA). R. v. Tayo Tompouba
In R. v. Tayo Tompouba (SCC, 2024) the Supreme Court of Canada allowed an appeal from a BC Court of Appeal which "erred in law by imposing on Mr. Tayo Tompouba the burden of proving, in addition to a breach of s. 530(3) Cr. C. [SS: 'Language of Accused'], that his fundamental right to be tried in the official language of his choice had in fact been violated".
Here the court considers the federal Official Languages Act:[33] The Official Languages Act, R.S.C. 1985, c. 31 (4th Supp.), is an example of federal legislation enacted for this purpose. This statute broadens [translation] “the legal guarantees provided by section 133 of the Constitution Act, 1867, both through its geographic scope and through the range of services offered” (Richard, at p. 391; see also Beaulac, at para. 22; V. Gruben, “Le bilinguisme judiciaire”, in M. Bastarache and M. Doucet, eds., Les droits linguistiques au Canada (3rd ed. 2013), 301, at pp. 350‑69). With respect to institutional judicial bilingualism in particular, s. 16 requires every federal court to ensure that the judge who hears proceedings is able to understand the language in which the proceedings are conducted, without the use of translation services. . Commission scolaire francophone des Territoires du Nord-Ouest v. Northwest Territories (Education, Culture and Employment
In Commission scolaire francophone des Territoires du Nord-Ouest v. Northwest Territories (Education, Culture and Employment (SCC, 2023) the Supreme Court of Canada considered 'minority language educational rights' under Charter s.23.
Here the court considers an appellant claim regarding Charter s.19(1) [court language rights] and the Official Languages Act (OLA), though ultimately declines to hear it:[104] The appellants have raised a new ground of appeal in this Court. They argue that their right to use French in the courts as guaranteed by s. 19(1) of the Charter and s. 9(1) of the OLA includes the right to be understood directly in that language without the assistance of an interpreter. Because interpretation services were required for the hearing before the Court of Appeal for the Northwest Territories, the appellants take the view that their right under s. 19(1) of the Charter and s. 9(1) of the OLA was infringed.
[105] Section 19(1) of the Charter guarantees to every person that “[e]ither English or French may be used . . . in, or in any pleading in or process issuing from, any court established by Parliament”. The wording of s. 9(1) of the OLA is almost identical. That provision states that “[e]ither English or French may be used by” any person “in, or in any pleading in or process issuing from, any court established by the Legislature”.
[106] By way of relief, the appellants seek a number of declaratory conclusions. First, they would like this Court to declare [translation] “that the courts of the Territories are established by Parliament within the meaning of s. 19(1) of the Charter” (A.F., at para. 116). They also seek a declaration that s. 19(1) of the Charter and s. 9(1) of the OLA [translation] “protect the right to be understood directly by the court, and that these rights were infringed” (para. 116). Second, the appellants ask this Court to declare that s. 9(1) of the OLA is of no force or effect to the extent of its inconsistency with s. 19(1) of the Charter or, in the alternative, that s. 19(1) of the Charter and s. 9(1) of the OLA protect the right to be understood by the court and that this right was infringed in this case. Lastly, if the Court denies their other conclusions, the appellants seek at least a declaration that their right to be heard flowing from natural justice was infringed.
[107] To make the principal orders sought by the appellants, this Court has to resolve some complex constitutional issues. First, the Court must determine whether the Court of Appeal for the Northwest Territories is a court established by Parliament within the meaning of s. 19(1) of the Charter, an exercise that requires consideration of the constitutional status of the Northwest Territories. Second, ruling in favour of the appellants also requires overturning Société des Acadiens du Nouveau‑Brunswick Inc. v. Association of Parents for Fairness in Education, 1986 CanLII 66 (SCC), [1986] 1 S.C.R. 549, in which a majority of this Court, per Beetz J., found that the right to use either of the country’s two official languages in any court referred to in s. 19 of the Charter does not include the right to be understood, as this right derives rather from the principles of natural justice and the right to a fair trial.
[108] In the case at bar, I am of the view that it would not be appropriate for this Court to decide the issue raised by the appellants. Judicial restraint generally requires that this Court not decide constitutional issues that are not necessary to the resolution of the parties’ dispute (see R. v. McGregor, 2023 SCC 4, at para. 24, and the cases cited). This rule may be departed from in exceptional circumstances (para. 24, quoting Attorney General (Que.) v. Cumming, 1978 CanLII 192 (SCC), [1978] 2 S.C.R. 605, at p. 611). However, there are no such circumstances in this case.
[109] From the time it arose until the time it came before this Court, the parties’ dispute related not to s. 19(1) of the Charter or s. 9(1) of the OLA but rather to the decisions rendered by the Minister concerning the applications for admission submitted by the appellant parents. The appellants did not even raise this issue in the course of the hearing before the Court of Appeal for the Northwest Territories, despite having been informed months ahead of time that the members of the panel were not all bilingual.
[110] In finding that the Minister’s decisions are unreasonable and in setting aside the Court of Appeal’s judgment and the orders it made, this Court is ruling in favour of the appellants and bringing an end to the dispute between the parties. It is therefore unnecessary to address the issue of how s. 19(1) of the Charter and s. 9(1) of the OLA should be interpreted in order to resolve the dispute. This issue has, for all practical purposes, become moot.
[111] The appellants contend that the new constitutional issue remains relevant even if this Court sets aside the Court of Appeal’s judgment. In their opinion, the Court should address it anyway because language rights are substantive rights and not purely procedural ones. There is no doubt that language rights are not purely procedural. Indeed, the Court has recognized this, first in R. v. Beaulac, 1999 CanLII 684 (SCC), [1999] 1 S.C.R. 768 (at para. 28), and, more recently, in Mazraani v. Industrial Alliance Insurance and Financial Services Inc., 2018 SCC 50, [2018] 3 S.C.R. 261 (at para. 20), and Bessette v. British Columbia (Attorney General), 2019 SCC 31, [2019] 2 S.C.R. 535 (at para. 38). With respect, however, such an argument reflects circular reasoning. The Court’s reasons for considering an issue cannot be predicated on a presumed outcome. If the Court accepted this argument, it would have to address most constitutional issues that have no impact on the case.
[112] For these reasons, it is preferable to leave the interpretation of s. 19(1) of the Charter and s. 9(1) of the OLA, as well as any reconsideration of Société des Acadiens, for another day. . Canada (Commissioner of Official Languages) v. Canada (Employment and Social Development)
In Canada (Commissioner of Official Languages) v. Canada (Employment and Social Development) (Fed CA, 2022) the Federal Court of Appeal stated basics of language law interpretation in the context of the federal Official Languages Act:[110] At the outset of his analysis, the trial judge reviewed the principles of interpretation applicable to language rights (Reasons, paras. 46 to 53). He pointed out that the OLA is a fundamental law that is closely linked to the values and rights set out in the Constitution and, in particular, in subsections 20(1) and 16(1) of the Charter, which deal with language of service and language of work.
[111] Therefore, "“in all cases”" language rights must be interpreted "“purposively, in a manner consistent with the preservation and development of official language communities”" (Reasons, para. 48, citing Beaulac, para. 25). That said, the modern approach to statutory interpretation, which requires that the words of an Act be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, its object and the intention of Parliament, continues to apply even with respect to language rights (Reasons, para. 52, citing Caron v. Alberta, 2015 SCC 56, [2015] 3 S.C.R. 511, para. 38; Thibodeau v. Air Canada, 2014 SCC 67, [2014] 3 S.C.R. 340, para. 112; Lavigne v. Canada (Office of the Commissioner of Official Languages), 2002 SCC 53, [2002] 2 S.C.R. 773 [Lavigne SCC], para. 25; Tran v. Canada (Public Safety and Emergency Preparedness), 2017 SCC 50, [2017] 2 S.C.R. 289 and Rizzo & Rizzo Shoes Ltd. (Re), 1998 CanLII 837 (SCC), [1998] 1 S.C.R. 27, 154 D.L.R. (4th) 193, para. 21).
[112] The appellants do not question the principles of interpretation so described. Only the trial judge’s application of these principles to the legal provisions at issue is challenged on appeal. Paras 113-164 are a review of parts of the Official Languages Act, with case commentary.
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