Digests

Canada (Commissioner of Official Languages) v. Canada (Department of Justice)

T-2170-98

2001 FCT 239, Blais J.

23/3/01

79 pp.

Remedy application by Commissioner of Official Languages under Official Languages Act (OLA), s. 78(1), against respondent on ground Crown had failed to comply with duties and commitments in respect of language set out in Parts IV and VII of OLA in applying Contraventions Act (CA) and Application of Provincial Laws Regulations thereunder--By oral agreement federal government delegated powers under CA to Government of Ontario--In so doing federal government did not include clause guaranteeing language rights of offenders prosecuted under CA--Formerly language rights protected by Criminal Code, ss. 530 and 530.1 and Charter, s. 16 with respect to judicial aspect of prosecutions and by Part IV of OLA and Charter, s. 20 with respect to administrative or extra-judicial aspect of prosecutions--S. 65.1 allowing provincial or territorial language rights scheme to be substituted for language rights scheme provided in Criminal Code with respect to offences under federal statutes--CA, s. 65.2 authorizing Minister of Justice to enter into general agreements with province or specific provincial, municipal or local agreements to specify manner in which offences will be handled--Issues: (1) whether Commissioner of Official Languages and AJEFO have necessary standing and does this Court have sufficient jurisdiction to allow for arguments based solely on Charter and Part VII of OLA to be made in this application; (2) duties of respondent in relation to Charter, ss. 16 to 22; (3) whether municipalities and provinces acting on behalf of Attorney General of Canada within meaning of OLA, s. 25 when they prosecute under CA; (4) whether respondent Attorney General of Ontario and municipalities complied with duties set out in Part IV of OLA and rights guaranteed in Charter, ss. 16 to 20 in enacting and applying CA and in making and applying regulations thereunder; (5) whether respondent complied with duties set out in Part VII of OLA in enacting and applying CA and making and applying regulations thereunder; (6) whether remedies sought by Commissioner appropriate--In Ontario, since agreement signed, laws that apply to language rights are Courts of Justice Act which relates to judicial aspects of prosecutions (and provides for bilingual trial) and French Language Services Act which relates to administrative aspects of prosecutions--When Ontario enacted Streamlining of Administration of Provincial Offences Act, 1988, it provided for certain powers deriving from CA to be transferred to municipalities--Act not providing for bilingual trials or trials in French and not all Ontario municipalities subject to Courts of Justice Act--(1) Recent developments in case law and specifically R. v. Beaulac, [1999] 1 S.C.R. 768, have not made it possible for Federal Court to intervene, in an application brought under OLA, s. 78(1)(a), in respect of alleged violations of Part VII of OLA--Entirely proper for and within jurisdiction of Court both to consider allegations that provisions of Part IV of OLA violated and to examine alleged violation of provisions of Charter, in relation to provisions of Part IV of OLA--Applying criteria set out in Thorson v. Attorney General of Canada, [1975] 1 S.C.R. 138, Nova Scotia Board of Censors v. McNeil, [1976] 2 S.C.R. 265 and Canada (Minister of Justice) v. Borowski, [1981] 2 S.C.R. 575, and having regard to fact Supreme Court has also allowed for discretion to be exercised in granting standing despite fact applicant does not meet tests, Commissioner and AJEFO have requisite standing in respect of application brought and Federal Court has full jurisdiction to hear case in terms of arguments based both on Part IV of OLA and on relevant sections of Charter as they relate to provisions set out in Part IV of OLA--(2) Under Charter, respondent required to ensure language rights respected--If respondent fails to respect rights guaranteed in Charter in enacting and applying the CA, Crown in violation of Charter--(3) Province of Ontario and municipalities given province's delegated powers acting on behalf of Government of Canada in implementing CA and municipal governments having signed agreement with Justice Canada also acting on behalf of Government of Canada--Language guarantees set out in OLA and Criminal Code apply regardless of whether Attorney General of Canada, Attorney General of Ontario or municipalities given authority to administer CA--(4) Measures taken by respondent regarding application of CA and agreements entered into by respondent and Government of Ontario and subsequent municipal agreements do not adequately and completely protect quasi-constitutional language rights provided by Criminal Code, ss. 530 and 530.1 and by Part IV of OLA--Violation of language rights provided in Criminal Code, ss. 530 and 530.1 and Part IV of OLA also constituting violation of rights provided in Charter, ss. 16 to 20--(5) For reasons explained in answer to issue number 1, Court has no jurisdiction to examine any breaches there may have been of duties set out in Part VII of OLA in enacting and applying CA and in making and applying regulations thereunder--(6) Declaration respondent had not complied with duties under Part IV of OLA; application for declaration that respondent had not complied with duties under Part VII rejected--CA must be enacted and regulations thereunder made in such a way as to comply with Constitution and Charter, and if conflict between existing language rights as subsequently upheld by Supreme Court and another Act of same Parliament designed to erode language rights guaranteed by Part IV of OLA and Charter and protected by Part XVII of Criminal Code (ss. 530 and 530.1), no doubt that language rights prevail--Clear that in measures taken in enacting and applying CA, respondent has violated statutory language rights in OLA and provisions of Charter with respect to status and use of two official languages in province of Ontario--CA entirely legal and Court will simply order respondent to take necessary measures, whether legislative, regulatory or otherwise, to ensure quasi-constitutional language rights provided by Criminal Code, ss. 530 and 530.1 and Part IV of OLA for persons prosecuted for violations of federal statutes or regulations respected in any present or future regulations or agreements with other parties that relate to responsibility for administering prosecution of federal contraventions--With respect to oral agreement between respondent and Government of Ontario, respondent has one year to ensure agreement, whether oral or in writing, amended to ensure clear reference to quasi-constitutional language rights provided in Criminal Code, ss. 530 and 530.1 and Part IV of OLA--In any measure taken to delegate administrative powers in relation to application of CA to Government of Ontario respondent shall incorporate clause to provide that when Government of Ontario delegates power to other parties, including municipalities, it shall include provision that third parties must respect language rights--Existing agreements must be amended to comply with this order--Respondent has one year to amend agreements between respondent and municipalities of Mississauga and Ottawa in relation to application of CA to ensure language rights provided by Criminal Code, ss. 530 and 530.1 and Part IV of OLA clearly referred to--Respondent must therefore ensure quasi-constitutional language rights of all Canadian citizens guaranteed by any measure taken to arrange for implementation of CA--Official Languages Act, R.S.C., 1985 (4th Supp.), c. 31, ss. 25, 78--Contraventions Act, S.C. 1992, c. 47, ss. 65.1 (as enacted by S.C. 1986, c. 7, s. 37), 65.2 (enacted, idem)--Application of Provincial Laws Regulations, SOR/96-312--Streamlining of Administration of Provincial Offences Act, S.O. 1998, c. 4--Provincial Offences Act, S.O. 1990, c. P-33--Courts of Justice Act, R.S.O. 1990, c. C.43--Criminal Code, R.S.C., 1985, c. C-46, ss. 530 (as am. by R.S.C., 1985 (1st Supp.), c. 27, ss. 94, 203; S.C. 1999, c. 3, s. 34), 530.1 (as enacted by R.S.C., 1985 (4th Supp.), c. 31, s. 94)--Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule 3, Canada Act 1982 (U.K.), c. 11 [R.S.C., 1985, Appendix II, no. 44), ss. 16, 17, 18, 19, 20, 21, 22.