Doucet v. Canada

Doucet v. Canada
Court (s) Database
Federal Court Decisions
Date
2004-10-19
Neutral citation
2004 FC 1444
File numbers
T-1151-00
Notes
Reported Decision
Decision Content
Date: 20041019
Docket: T-1151-00
Citation: 2004 FC 1444
Ottawa, Ontario, the 19th day of October 2004
PRESENT: THE HONOURABLE MR. JUSTICE BLANCHARD
BETWEEN:
DONNIE DOUCET
Plaintiff
and
HER MAJESTY THE QUEEN IN RIGHT OF CANADA
(HER EXCELLENCY THE GOVERNOR GENERAL IN COUNCIL
and THE ROYAL CANADIAN MOUNTED POLICE)
Defendant
REASONS FOR JUDGMENT AND JUDGMENT
[1] The Plaintiff, Donnie Doucet, commenced an action by way of statement of claim alleging that his language rights had been infringed. He declared that he could not communicate in French with the Royal Canadian Mounted Police (RCMP) officer who stopped him for speeding on Highway 104 near Amherst, Nova Scotia.
[2] The Plaintiff submits that the Official Languages (Communications with and Services to the Public) Regulations (SOR/92-48) (the Regulations), which determine the application of the law for services to linguistic minorities of the two official languages, contravene the rights guaranteed under the Canadian Charter of Rights and Freedoms, enacted as Schedule B to the Canada Act, 1982, 1982, c. 11 (U.K.) (the Charter) and should therefore be declared inoperative pursuant to section 52 of the Constitution Act, 1982.
[3] The Defendant submits that the Regulations do not infringe the linguistic rights guaranteed by the Charter. Should the Court conclude that there is violation of the linguistic rights, the Defendant then submits that the Regulations are justified pursuant to section 1 of the Charter.
[4] For the reasons for judgment which follow, I conclude that the Regulations are incompatible with subsection 20(1) of the Charter in that they violate the right of any member of the public to communicate with a federal institution in either official language where there is a significant demand for the use of that language. I also conclude that the violation is not justified under section 1 of the Charter.
The facts
[5] On March 8, 1998, Donnie Doucet (the Plaintiff), a francophone living in Nova Scotia, was stopped for speeding on Highway 104 near Amherst, Nova Scotia, by Constable Hannon of the Royal Canadian Mounted Police (RCMP), Amherst detachment. Under an agreement between Nova Scotia and the RCMP, the RCMP provides police services in the Amherst area, and is responsible inter alia for patrolling the Trans-Canada Highway from the New Brunswick border to the area surrounding the intersection of exit 204 to Springhill, Nova Scotia.
[6] The location where the Plaintiff was stopped and given his summons is part of the territory patrolled by the RCMP, Amherst detachment.
[7] The officer approached the Plaintiff's vehicle and addressed him in English only; the Plaintiff spoke in French and gave his papers to the Constable, who went back to his car, returning a few minutes later with a summons written in English only, which he gave to the Plaintiff, explaining its meaning in English only. The Plaintiff made several attempts to initiate the use of French, but did not expressly request that the officer speak to him in French.
[8] With regard to the Plaintiff's conviction for speeding, the matter has already been settled. The Plaintiff was found guilty and the conviction was upheld on appeal (R. v. Doucet, 2003 NSSCF 256). In his decision, Boudreau J. of the Nova Scotia Supreme Court (sitting in appeal) weighed the appellant's constitutional arguments, namely that his language rights had been infringed and that the conviction was therefore not valid. The judge dismissed the appeal, ruling that the trial judge did not err in finding that there was no evidence that the appellant had specifically requested services in French. Boudreau J. added that he could not find that the appellant's language rights had been infringed: there was insufficient evidence to establish that the demand for French services was a "significant demand", and the RCMP had a procedure for responding to requests for services in French, if necessary.
[9] The Defendant submits that the summons cannot be likened to a service or a communication pursuant to Part IV of the Official Languages Act, R.S.C. 1985 (4th Supp.), c. 31 (the OLA) or subsection 20(1) of the Charter. In MacDonald v. City of Montréal, [1986] 1 S.C.R. 460, and Bilodeau v. Manitoba, [1986] 1 S.C.R. 449, the Supreme Court of Canada held that the failure to produce a summons in both languages is not an infringement of the language rights guaranteed by the Charter.
[10] Although based on the same facts, the issue now before the Court is quite different. The summons and the Plaintiff's conviction for speeding are no longer the issue. The issue is rather to determine whether the Plaintiff's rights as a francophone were infringed because, contrary to the right guaranteed in section 20 of the Charter, he did not receive services in French and could not communicate in French when he addressed a member of the RCMP who was patrolling Highway 104 near Amherst. The Plaintiff therefore brought this action and seeks the following redress:
[translation]
(a) DECLARE that subparagraph 5(1)(h)(i) of the Official Languages (Communications with and Services to the Public) Regulations, SOR/92-48 (1992), 126 Off. Gaz. Can. II, Vol. 130, No. 14, 10/7/96, P.C. 1991-2541, December 16, 1991, adopted pursuant to section 32 of the OLA, is inconsistent with paragraph 20(1)(b) of the Canadian Charter of Rights and Freedoms in that it does not recognize the special mandate of the offices of the RCMP, who patrol the Trans-Canada Highway;
(b) Alternatively, DECLARE that the Trans-Canada Highway at the point of entry from Fort Lawrence near Amherst, Nova Scotia, is an area of significant demand within the meaning of paragraph 20(1)(a) of the Canadian Charter of Rights and Freedoms;
(c) And accordingly DECLARE that subparagraph 5(1)(h)(i) of the Official Languages (Communications with and Services to the Public) Regulations, SOR/92-48 (1992) 126 Off. Gaz. Can. II, Vol. 130, No. 14, 10/7/96, P.C. 1991-2541, December 16, 1991, adopted pursuant to section 32 of the OLA, is inconsistent with paragraph 20(1)(a) of the Canadian Charter of Rights and Freedoms in that it makes the duty to provide services in French at the Amherst, Nova Scotia, detachment subject to the percentage of French linguistic minority population in the census district rather than the volume of francophones using the Trans-Canada Highway at the Fort Lawrence point of entry near Amherst, Nova Scotia;
(d) DECLARE that the Regulations are not reasonable limits that can be demonstrably justified in a free and democratic society within the meaning of section 1 of the Canadian Charter of Rights and Freedoms;
(e) DECLARE that the Regulations are therefore null, and of no force or effect to the extent of this inconsistency;
(f) DIRECT the Governor in Council to amend the Regulations accordingly, within such time as the Court shall direct;
(g) AWARD the Plaintiff all costs and disbursements, including the Plaintiff's solicitor-client fees, if applicable;
(h) AWARD the Plaintiff such other redress as the Court deems fit and proper to order in the circumstances, to ensure that the Plaintiff complies with the Charter and the OLA . . .
[11] Under the Official Languages (Communications with and Services to the Public) Regulations (SOR/92-48) (the Regulations), adopted pursuant to section 32 of the OLA, to determine whether a "significant demand" exists for services in the minority official language in a rural area, the minority population must attain the level of 500 persons or 5% of the population in the service area. Consequently, the RCMP detachment at Amherst, Nova Scotia, as an office of a federal institution subject to the Charter and the OLA, does not have to offer bilingual services in the Amherst area because there is no "significant demand" in that area within the meaning of the Regulations. The 1991 census shows a francophone population of 255 persons living in the service area of the Amherst detachment, and this is 1.1% of the population in the detachment's service area. In Amherst itself, the francophone population makes up 2.1% of the population.
[12] The Plaintiff argues, to the contrary, that there is a significant demand in this area and that, by failing to provide for the particular situation that exists in Amherst, the Regulations infringe the language rights of the Plaintiff and of francophones in the area that are guaranteed by sections 16 and 20 of the Charter and Part IV of the OLA.
[13] The following facts are not in dispute. Amherst is located near the New Brunswick border; the RCMP, Amherst detachment, serves the Trans-Canada Highway (Highway 104), from Fort Lawrence at the border between Nova Scotia and New Brunswick, to exit 204, near Springhill. The 2001 census established that 32% of the New Brunswick population is francophone. Further, near the border, the francophone population is more concentrated and makes up about 38% of the population in that area. The evidence shows - we will come back to this later - that nearly half the vehicles crossing the border at Fort Lawrence (Nova Scotia) come from New Brunswick, while the majority of the persons crossing the border live near it.
Issue
[14] Do the Official Languages (Communications with and Services to the Public) Regulations comply with the Canadian Charter of Rights and Freedoms, more particularly subsection 20(1) of the Charter, and sections 22 and 23 of the OLA?
Legislative and regulatory provisions
[15] The relevant provisions of the Charter, the OLA and the Regulations are included in an appendix.
Analysis
Law
[16] Section 16 of the Charter guarantees the equality of both official languages in Canada, and section 20 enshrines the right of members of the public to communicate with the central office of any federal institution in the official language of their choice. The same right exists in respect of any other office of the federal institution, wherever it is located in Canada, provided that there is a significant demand for the official language used by the minority or that its use is warranted by the nature of the office. The OLA adopted the wording of the Charter, which gives it special status, as noted by Décary J.A., speaking for a unanimous court in Canada (Attorney General) v. Viola, [1991] 1 F.C. 373 (C.A.), at page 386:
The 1998 Official Languages Act is not an ordinary statute. It reflects both the Constitution of the country and the social and political compromise out of which it arose. To the extent that it is the exact reflection of the recognition of the official languages contained in subsections 16(1) and (3) of the Canadian Charter of Rights and Freedoms, it follows the rules of interpretation of that Charter as they have been defined by the Supreme Court of Canada. To the extent also that it is an extension of the rights and guarantees recognized in the Charter, and by virtue of its preamble, its purpose as defined in section 2 and its taking precedence over other statutes in accordance with subsection 82(1), it belongs to that privileged category of quasi-constitutional legislation which reflects "certain basic goals of our society" and must be so interpreted "as to advance the broad policy considerations underlying it". [Footnotes omitted.]
[17] This statement was also adopted by Bastarache J., speaking for the majority of the Supreme Court of Canada in R. v. Beaulac, [1999] 1 S.C.R. 768, at paragraph 21.
[18] The OLA is, to a certain extent, the embodiment of an ideal, the right to which is entrenched in our Constitution. In section 32, the OLA provides that the Governor in Council may determine by regulations what constitutes a "significant demand" requiring bilingual services or the circumstances in which the "nature of the office" justifies the use of both official languages.
[19] The Regulations, adopted pursuant to the OLA, set out in detail the various circumstances where there is a "significant demand" and specify what the "nature of the office" involves. Mr. Ricciardi, Senior Advisor, Policy Division, Official Languages Directorate (formerly part of the Treasury Board Secretariat and now part of the Public Service Human Resources Management Agency), testified in respect to the drafting of the Regulations, in which he participated. His testimony clearly shows the extent to which certain decisions are political. They cannot be described as arbitrary, because it is clear they were carefully thought out, and took a great many constraining factors into account.
[20] For instance, the Regulations set the numbers necessary to establish a significant demand, depending on whether urban or rural areas are involved. Significant demand is deemed to be established, for airports, at a million passengers or more, annually; for ferry terminals, the level is set at 100,000 passengers. Further, the Regulations apply the concept of "national mandate" to certain offices, including national parks, which must offer bilingual services, notwithstanding their geographic location, demand or number of visitors.
[21] It is not the Court's function to question these decisions, which reflect both the desire to comply with the provisions of the Charter and the OLA and the need to apply some rationality to offering bilingual services in a country where the two languages do not always coexist in the same area. However, if the implementation of these decisions, political though they may be, has the effect of infringing the rights guaranteed by the Charter, the Court has a duty to intervene (Commissioner of Official Languages v. Her Majesty The Queen (Department of Justice of Canada), 2001 FCT 239). Accordingly, it must determine whether the Regulations as currently drafted infringe the rights guaranteed by the Charter and the OLA.
[22] On various occasions, the courts have defined the scope of the language guarantees contained in the Charter and the OLA. The jurisprudence on language rights evolved, to some extent, in keeping with the principles of natural justice, the right to understand and the right to be heard.
[23] In Société des Acadiens du Nouveau-Brunswick Inc. v. Assn. of Parents for Fairness in Education, Grand Falls District 50 Branch, [1986] 1 S.C.R. 549, Beetz J. underscored the difference between language rights relating to the administration of justice, which essentially parallel section 133 of the Constitution Act, 1867, and the rights in section 20 of the Charter (adopted in Part IV of the OLA), which are indicative of a desire to make Canada a truly bilingual country:
54. I am reinforced in this view by the contrasting wording of s. 20 of the Charter. Here, the Charter has expressly provided for the right to communicate in either official language with some offices of an institution of the Parliament or Government of Canada and with any office of an institution of the Legislature or Government of New Brunswick. The right to communicate in either language postulates the right to be heard or understood in either language.
[24] On reviewing the case law, there is no doubt that the courts have held that the Canadian government has a positive duty to promote language rights. In Beaulac, supra, Bastarache J. wrote the following at paragraphs 20 and 24:
. . . The objective of protecting official language minorities, as set out in s. 2 of the Official Languages Act, is realized by the possibility for all members of the minority to exercise independent, individual rights which are justified by the existence of the community. Language rights are not negative rights, or passive rights; they can only be enjoyed if the means are provided. This is consistent with the notion favoured in the area of international law that the freedom to choose is meaningless in the absence of a duty of the State to take positive steps to implement language guarantees . . .
. . . The idea that s. 16(3) of the Charter, which has formalized the notion of advancement of the objective of equality of the official languages of Canada in the Jones case, supra, limits the scope of s. 16(1) must also be rejected. This subsection affirms the substantive equality of those constitutional language rights that are in existence at a given time. Section 2 of the Official Languages Act has the same effect with regard to rights recognized under that Act. This principle of substantive equality has meaning. It provides in particular that language rights that are institutionally based require government action for their implementation and therefore create obligations for the State . . .
[25] Where a significant demand is established, it is clear that the government has a duty to act. In R. v. Saulnier, [1989] N.S.J. No. 131 (N.S. Co. Ct.), a fisherman was convicted of exceeding his fishing quota. The judge hearing the appeal quashed the conviction reasoning the quota had been modified while the fisherman was at sea and the quota modification notices were broadcast on the maritime radio in English only. The fisherman was a francophone and, although he apparently had no difficulty understanding English, the judge found that the fisherman was entitled to be informed in his own language of the changes in the quota:
It is immaterial that the appellant understands English or that his trial was conducted in English. His first language, the language of his choice, the language in which he communicates with other fishermen, is the French language. It is his mother tongue as defined in the Official Languages Act. His right to use that language is guaranteed under the Charter.
[26] The judge in that case took judicial notice of the fact that Yarmouth, where the Coast Guard radio station broadcasting the notices of the Department of Fisheries and Oceans was located, was in a region where there were substantial francophone communities. Accordingly, it could be assumed there was a significant demand. Further, in the judge's view, the duty to issue notices in both official languages was a consequence of the mandate of the federal Department's regional office in a fishing zone.
Circumstances at issue
[27] Five witnesses were heard at the hearing of February 2, 2004. The Plaintiff called Stephen Coyle and Anne Gilbert as expert witnesses. In 1998, Mr. Coyle was responsible for collecting data on tourists in the Amherst area; he had worked for the Ministry of Tourism and Culture as an analyst since 1986. He was qualified as an expert on questions involving visitor traffic in the Amherst area. As for Ms. Gilbert - a geographer specializing in the distribution of francophones populations (locally, regionally, provincially, nationally), the effects of their concentration or dispersion on the development of their institutions, the consolidation of their networks and the variety of legal and political frameworks in which their communities evolve - she was recognized as an expert on these issues.
[28] The Defendant called three witnesses: Staff Sgt. John Hastey, commanding officer of the RCMP Amherst detachment, from 1994 to 2000; Lisette Taillefer-Brisebois, Reviser-Analyst, RCMP Official Languages Directorate; and John Ricciardi, Senior Advisor, Policy Division, Official Languages Directorate, Public Service Human Resources Management Agency of Canada.
[29] Mr. Coyle testified that, in 1998, 4,034,502 travellers entered Nova Scotia from New Brunswick via the Trans-Canada Highway, crossing the border at Fort Lawrence near Amherst (Nova Scotia). These numbers included travellers from the Maritimes - except Newfoundland and Labrador - as well as from Quebec and Ontario. They did not include data on cars entering Nova Scotia from the Western provinces.
[30] The Defendant tried to challenge the accuracy and reliability of these numbers, in view of the absence of data for Newfoundland and the Western provinces. I reject this submission. In my view, the additional data does alter my findings regarding a significant demand in this area. First, cars coming from Newfoundland are counted at North Sydney, and represent only 1.5% of the number of cars counted at Fort Lawrence, while only 0.5% of the total number come from the Western provinces. Second, according to Mr. Coyle, 70% of persons crossing the border are daily commuters, who come from a radius of less than 80 kilometres from Fort Lawrence.
[31] Examining the map of the area on either side of the border between New Brunswick and Nova Scotia, Ms. Gilbert, the expert geographer, estimates that about 20% of the travellers crossing the border are francophones. The population of New Brunswick is 32% francophone; in the area adjacent to the border, within a radius of 80 kilometres from Fort Lawrence, the francophone population reaches 38%.
[32] Mr. Ricciardi explained the political factors which governed the drafting of the Regulations, in which he took part. The decisions about services to be offered were made after research and consultation. For her part, Ms. Taillefer-Brisebois, from the RCMP Official Languages Directorate, testified that, to her knowledge, no study has been conducted to determine the official language requirements of the minority for the purposes of the RCMP Amherst office serving Highway 104, or anywhere else in Canada where the RCMP is providing police services.
[33] Finally, Staff Sgt. Hastey testified for the Defendant. I think it is useful to refer to part of the cross-examination by counsel for the Plaintiff:
Q. [translation] It was admitted that in 1998 the Amherst detachment, according to the Regulations in effect, had no duty to offer services in both official languages. Was that your understanding as head of the Amherst district?
A. That's correct.
Q. [translation] And does that mean there was no service in French?
A. No. We regularly and routinely provided and assisted people whenever possible.
Q. [translation] Could you elaborate a bit more in . . .
A. In the - particularly during the busier months, the summer months, we would encounter travelling public requiring assistance, directions, both at the detachment and on the highway, and at times it was necessary to explain to people in French what was transpiring. And on occasion, and not infrequently, members -unilingual English members would encounter someone who spoke only French. And there was a process and a procedure in place whereby the member of the public would be taken to the police car and would then be put in touch with a bilingual member who was on the air. And it was not uncommon at all to hear a member of the public speaking on the police radio . . . And there's also - was in 1998 and remains a system in place to facilitate people's linguistic needs through our OCC or the Operational Communication Centre in Halifax . . .
So, it would appear from the evidence that demand for services and communications in French from the RCMP was an established and a fairly common occurrence, even though it has not been studied, according to the Defendant's witnesses.
[34] In the case at bar, both parties acknowledge that, when patrolling Nova Scotia highways or responding to calls from citizens, the RCMP is a federal institution offering services to the public. The parties further agree that, as such, the RCMP is bound by the provisions of the OLA and the Charter on the right of Canadians and the public in general to communicate with federal institutions and receive services in either of the two official languages, at their choice.
[35] The fact that the RCMP performs policing duties in Nova Scotia under a contract entered into with the province does not in any way alter its status as a federal institution. Subsection 20(1) of the Royal Canadian Mounted Police Act provides for such contracts. On this issue, I agree with Boudreau J. of the Nova Scotia Supreme Court who, in his judgment on the appeal from the Plaintiff's conviction, wrote the following:
[translation]
In my opinion, the members of the RCMP do not lose their federal status when they act under contract with a province or implement provincial legislation. This is their mandate under the RCMP Act and they are only carrying it out. Accordingly, it is still a service by a federal institution . . .
In my opinion, a contract with a province does not change anything in the status of the RCMP. It continues to be a federal institution. Any other conclusion would allow the RCMP to avoid its language obligations to individuals, as guaranteed by the Charter. That certainly would not be consistent with the purpose of the constitutional language rights. [paras. 31 and 32]
[36] The Plaintiff's main argument is that the Regulations, adopted pursuant to the OLA, which set out how the Act is to be applied for services to language minorities of both official languages, is inconsistent with the Charter guarantees and, in consequence, should be declared of no force or effect under section 52 of the Constitution Act, 1982.
[37] The Defendant argues that the Regulations are entirely consistent with the spirit of the Act and do not infringe the language rights guaranteed by the Charter. Alternatively, the Defendant argues that, if the Court were to find that the Regulations infringe the language rights, the Regulations are justified under section 1 of the Charter since they are demonstrably justified in a free and democratic society.
[38] Sections 5, 6 and 7 of the Regulations set out various situations that correspond to the concept of "significant demand". Sections 8, 9, 10 and 11 define what is meant by "national mandate". None of these definitions corresponds to the circumstances at issue in this case, namely the right of motorists driving on highways patrolled by the Amherst detachment to services and communications in French.
[39] The Defendant argues that, under subparagraph 5(1)(h)(i) of the Regulations, the RCMP is not required to offer bilingual services since "significant demand" is defined in accordance with the demographics of the area. The parties agree that the French population in the Amherst area is well below the 500 persons or 5% threshold set out in the Regulations. Consequently, the Defendant argues, the RCMP does not have to offer bilingual services.
[40] The Plaintiff reasons by analogy: he submits there are actually many provisions in the Regulations to which demographic considerations do not apply as the result of a political choice by the government. For example, subsection 7(3) of the Regulations provides that an airport serving at least one million passengers annually is deemed to have a significant demand for the use of both official languages, regardless of the minority language considerations where it is located. Similarly, under paragraph 7(4)(b), there is deemed to be significant demand for the use of both official languages in a ferry terminal where the total number of passengers is at least 100,000 annually, again regardless of the surrounding demographics. National parks, under section 9 of the Regulations, are covered by paragraph 24(1)(a) of the OLA, which refers to the "national or international" mandate of the office and requires services to be provided in both official languages, regardless of the surrounding demographics. Finally, subsection 6(1) of the Regulations provides that a "significant demand" is established when the office serves a " . . . restricted clientele, the members of which are identifiable" and where at least 5% of the demand from that clientele for those services is made to the office in the minority language annually.
[41] The Plaintiff disputes the definition of "significant demand" in the Regulations in relation to the RCMP's activities when patrolling the Trans-Canada Highway in the area of Amherst, Nova Scotia. The Plaintiff argues that, if the demographics of Amherst do not warrant that bilingual services be offered by the RCMP, a federal institution, the number of francophones travelling on Highway 104 clearly does.
[42] Fort Lawrence, at a border crossing, in Nova Scotia, where over four million vehicles enter Nova Scotia annually, is within the area patrolled by the RCMP, Amherst detachment. The Defendant sought to dispute the evidence submitted by the Plaintiff on these figures but, in my opinion, although they are not absolute or complete, they are sufficiently persuasive to support my analysis. In my view, the demand by the travelling public for services in French from the RCMP is established by the evidence, and especially the testimony of Ms. Gilbert and Staff Sgt. Hastey.
[43] Sgt. Hastey testified with respect to the protocol established by the RCMP for meeting the needs of francophone travellers. I would like to point out that, however well intentioned it may be, the service is limited and insufficient. Sgt. Hastey testified that, on occasion, a unilingual English officer meets someone who speaks only French. Arrangements are made for such individuals to communicate via radio to a bilingual member who is on the air. In my view, such an arrangement is by no means sufficient for the RCMP to fulfill its obligations under the Charter and the OLA so that any member of the public is entitled to communicate with a federal institution in the official language of his or her choice.
[44] Patrolling Highway 104, an interprovincial highway, is one of the realities facing the RCMP, Amherst detachment. Though Amherst does not have a large population, it is, however, situated close to New Brunswick, where 32% of the population is francophone (according to the 2001 census) and, even more significant, near a region where, according to the evidence, 38% of the population is francophone. The evidence has established that there is significant traffic coming from New Brunswick in the Amherst area. In her expert testimony, Ms. Gilbert testified about the proximity of francophone communities and persuasively demonstrated the likelihood that a large number of francophones from New Brunswick travel on highways in the Amherst area, including the main artery which is part of the Trans-Canada Highway. In my opinion, her testimony was strengthened rather than contradicted by the testimony of Staff Sgt. Hastey, a witness for the Defendant. I refer to the following facts which emerge from Ms. Gilbert's uncontradicted expert evidence:
- in 1998, four million travellers entered Nova Scotia via the Trans Canada Highway in the area of Amherst, 20% of whom - i.e. more than 800,000 - were francophone;
- of these four million, almost two million came from New Brunswick, approximately one-third of whom - i.e. more than 650,000 - were francophone;
- of the two million of those coming from New Brunswick, 70% came from within an 80-kilometre radius of Amherst, i.e. more than 1,200,000;
- within an 80-kilometre radius of the point of entry, 20.1% of the population reported French as their mother tongue.
[45] I agree with the Plaintiff's submissions that, even if the same people were counted repeatedly in arriving at the figure of 800,000 francophones coming in through Amherst, the fact remains that that amounts to 800,000 opportunities, each year, for the RCMP to serve a population likely to want to use the French language when dealing with the police force.
[46] In summary, the Regulations do not cover the situation of a busy highway, patrolled by the RCMP, on which a large number of members of the minority language group are likely to be travelling. In my view, the evidence has established, on a balance of probabilities, that there is a significant demand for minority language services in French on the section of Highway 104 crossing the service area of the RCMP, Amherst detachment. By analogy, I note that the Regulations do set out other circumstances, namely in respect to airports and ferry terminals, where the number of travellers determines whether the federal institution must offer services in either of both official languages.
[47] The Defendant argues that the linguistic obligations of the RCMP, Amherst detachment, should not be determined by data on motorists using Highway 104. I disagree with that proposal. What other evidence should be taken into account in determining whether there is a "significant demand" on this section of the Trans-Canada Highway? Certainly not demographic data for the town of Amherst. There is no connection between such data and the existence of a large population travelling on the highway which, according to the evidence, comes from outside the province, primarily from New Brunswick, and is made up to a large extent of francophones.
[48] The Defendant's argument is even less persuasive in view of section 23 of the OLA which provides for service to the travelling public in either official language when there is a significant demand established. That demand is deemed to be established at airports and ferry terminals once a certain level is reached in the number of travellers. The considerable number of vehicles crossing the border annually at Fort Lawrence is in itself a powerful counter-argument to the idea that demand should only be based on the demographics of the area.
[49] Thus, it is clear that there is a void in the Regulations. Notwithstanding a "significant demand", the Regulations do not provide for services to a linguistic minority travelling on a major highway. In my view, the Regulations do not comply with subsection 20(1) of the Charter, because they infringe the right of individuals to communicate with a federal institution in the official language of their choice, although a significant demand exists. For this reason alone, the Regulations do not meet the requirements of sections 22 and 23 of the OLA, section 22 providing for the right of members of the public to communicate with the office of a federal institution in the official language of their choice where a "significant demand" exists, and section 23 providing for services to the travelling public in the official language of their choice, if there is a significant demand for the use of that language.
Justification under section 1 of the Charter
[50] The Defendant argues that, if there is a breach of a constitutional right, it is justified under section 1 of the Charter as a reasonable limit prescribed by law. The Defendant proposes the following analytical framework for the section 1 analysis, namely the usual two-step approach set out by the Supreme Court of Canada in R. v. Oakes, [1986] 1 S.C.R. 103: is there a pressing and urgent objective justifying the measure, and is it proportional to the objective sought?
[51] It is usual to proceed with the analysis of a Charter infringement by applying the tests in Oakes, supra. In applying the Oakes tests, we go immediately to the government's pressing and urgent objective and then consider the proportionality of the disputed governmental measure. However, it is necessary first to consider whether the measure itself can be regarded as "prescribed by law". Pursuant to section 1 of the Charter, the rights and freedoms are "subject only to such reasonable limits prescribed by law . . .". There is no doubt that the Regulations, adopted pursuant to the OLA, are prescribed by law. However, the Regulations themselves are not in dispute, but rather a void therein. In my view, the effect is the same. The absence of an appropriate regulatory measure in the present case has the effect of infringing a right guaranteed by the Charter.
[52] The Plaintiff is not challenging the merits of the political decisions behind the drafting of the Regulations. In this respect, the Regulations do in fact limit language rights, but in a manner that is demonstrably justified in a free and democratic society. That being said, "significant demand", one of the conditions of both the Charter and the OLA, contemplates a variety of situations. There is a regulatory void in the circumstances of this case. In terms of the police services offered by the RCMP, the manner in which the linguistic needs in the Amherst area are determined, based solely on the immediate demographics of Amherst, fails to take into account the travelling public that the RCMP must deal with in this area as a result of the border crossing with New Brunswick and the strong presence of francophones nearby likely to use the Trans-Canada Highway.
[53] For the purposes of this case, we will consider the Regulations integrally as the measure prescribed by law which, according to the Plaintiff, limits the rights guaranteed by the Charter. The analysis then proceeds in accordance with the Oakes test, which McLachlin C.J. summarized as follows in Sauvé v. Canada (Chief Electoral Officer), [2002] 3 S.C.R. 519:
To justify the infringement of a Charter right, the government must show that the infringement achieves a constitutionally valid purpose or objective, and that the chosen means are reasonable and demonstrably justified: R. v. Oakes, [1986] 1 S.C.R. 103. This two-part inquiry - the legitimacy of the objective and the proportionality of the means - ensures that a reviewing court examine rigorously all aspects of justification. Throughout the justification process, the government bears the burden of proving a valid objective and showing that the rights violation is warranted - that is, that it is rationally connected, causes minimal impairment, and is proportionate to the benefit achieved. (para. 7)
[54] In a country as large as Canada, with a relatively small and diverse population, it is reasonable and legitimate to limit the availability of bilingual services in those areas where it is not justified by the demand. In my opinion, this is a valid objective from a constitutional point of view. The rational objective is therefore clearly legitimate. The question then is to decide whether its implementation infringes rights in a proportional manner. First, one must ask if there is a connection between the objective and the infringement, in other words, whether limiting the availability of services in French can be rationalized. This is undoubtedly true. There is a logical connection; it is at the proportionality stage itself, that is, the stage of minimal impairment and balancing the deleterious effect and benefits conferred, that the measure fails.
[55] Indeed, the impairment is not minimal. The evidence has established a significant demand: the rights of a large number of francophones are therefore being infringed. In RJR-MacDonald Inc. v. Canada (Attorney General), [1995] 3 S.C.R. 199, McLachlin J. (now Chief Justice) reminded us that the government has the burden of establishing minimal impairment:
Even on difficult social issues where the stakes are high, Parliament does not have the right to determine unilaterally the limits of its intrusion on the rights and freedoms guaranteed by the Charter. The Constitution, as interpreted by the courts, determines those limits. Section 1 specifically stipulates that the infringement may not exceed what is reasonable and "demonstrably justified in a free and democratic society", a test which embraces the requirement of minimal impairment, and places on the government the burden of demonstrating that Parliament has respected that limit. (para. 168)
[56] In the case at bar, the Defendant did not demonstrate how the Regulations as drafted minimally impair the rights of the travelling public belonging to the minority official language group. The Regulations do not require consideration of motorist as a factor in determining "significant demand". The Defendant merely argued that the demographics of the region do not justify bilingual police services; this altogether fails to address the concerns of francophone travellers.
[57] Furthermore, the Defendant claims that the solutions proposed by the Plaintiff would be difficult, if not impossible, to implement. The Defendant raises a number of difficulties, such as defining those s