Société des Acadiens v. Association of Parents

Société des Acadiens v. Association of Parents
Collection
Supreme Court Judgments
Date
1986-05-01
Report
[1986] 1 SCR 549
Case number
18781
Judges
Dickson, Robert George Brian; Beetz, Jean; Estey, Willard Zebedee; Chouinard, Julien; Lamer, Antonio; Wilson, Bertha; Le Dain, Gerald Eric
On appeal from
New Brunswick
Subjects
Constitutional law
Courts
Notes
SCC Case Information: 18781
Decision Content
Société des Acadiens v. Association of Parents, [1986] 1 S.C.R. 549
Société des Acadiens du Nouveau‑Brunswick Inc. and the Association des conseillers scolaires francophones du Nouveau‑Brunswick Appellants;
and
Association of Parents for Fairness in Education, Grand Falls District 50 Branch Respondent;
and
Minority Language School Board No. 50 Mis en cause;
and
Attorney General of Canada and Attorney General for New Brunswick Interveners.
File No.: 18781.
1984: December 4, 5; 1986: May 1.
Present: Dickson C.J. and Beetz, Estey, Chouinard, Lamer, Wilson and Le Dain JJ.
on appeal from the court of appeal for new brunswick
Courts ‑‑ Jurisdiction ‑‑ Inherent jurisdiction of the Court of Appeal of New Brunswick ‑‑ Court of Appeal granting applications for leave to appeal and for an extension of time to appeal ‑‑ Applications made by a person not a party to the original action ‑‑ Whether Court of Appeal had jurisdiction to grant the applications ‑‑ Whether the Court of Appeal exercised its discretion in a judicial manner ‑‑ Judicature Act, R.S.N.B. 1973, c. J‑2 as amended, ss. 8(2), 21.
Courts ‑‑ Judges ‑‑ Language requirements ‑‑ New Brunswick Court of Appeal ‑‑ French language competence of appeal judge challenged ‑‑ Level of understanding required of the Bench ‑‑ Judges to determine their own linguistic competence ‑‑ Canadian Charter of Rights and Freedoms, s. 19(2) ‑‑ Official Languages of New Brunswick Act, R.S.N.B. 1973, c. O‑1, s. 13(1).
Constitutional law ‑‑ Charter of Rights ‑‑ Official languages of Canada ‑‑ Proceedings in courts ‑‑ Content of litigant's right to use either English or French in any court of New Brunswick ‑‑ Whether this right comprises the right to be heard and understood by the court regardless of the official language used ‑‑ Canadian Charter of Rights and Freedoms, ss. 14 , 16 , 19 , 20 , 27 ‑‑ Official Languages of New Brunswick Act, R.S.N.B. 1973, c. O‑1, s. 13(1).
Appellants brought an action seeking declaratory and injunctive relief against the mis en cause to prevent it from offering immersion programs to French‑speaking students in its English schools. The New Brunswick Court of Queen's Bench delivered a judgment‑‑later clarified in two subsequent decisions‑‑in favour of the appellants but refused to issue the injunction. The mis en cause, despite pressure from parents of the students who would have enrolled in the program, decided not to appeal the judgment as clarified. The parents created the respondent Association and made applications for leave to appeal the judgment and for an extension of the appeal period. Prior to the hearing before Stratton J.A. in the Court of Appeal, the appellants requested that the matter be heard by a bilingual judge as some of the presentations were to be made in French. Stratton J.A. acceded to the request and referred the matter to another judge who decided that the matter had to be dealt with by a panel of the Court. A panel of three, Stratton J.A. presiding, granted respondent's applications. Hence this appeal to determine (1) whether the New Brunswick Court of Appeal had inherent jurisdiction to grant leave to appeal when the person seeking leave was not a party to the original action and was applying out of time, and if so, whether it exercised its discretion properly; and (2) whether s. 19(2) of the Canadian Charter of Rights and Freedoms entitles a party in a court of New Brunswick to be heard by a court, the member or members of which are capable of understanding the proceedings, the evidence and the arguments, written and oral, regardless of the official language used by the parties.
Held: The appeal should be dismissed.
(1) The Jurisdictional Issue
Per curiam: There is no basis for this Court to interfere with the Court of Appeal's decision to grant respondent's applications for leave to appeal and for an extension of time for appealing. The New Brunswick Court of Appeal had inherent jurisdiction under s. 8(2) of the Judicature Act to grant leave to appeal to a non‑party. The jurisdiction of the Court of Appeal with respect to practice and procedure is, except as modified by legislation, essentially that exercised by the High Court of Chancery in England. A review of the cases of that Court indicates that in a proper case the practice of the Court was to permit a grant of leave to appeal to a person not a party to an action. The Court of Appeal, under its Rules of Court, also had jurisdiction to grant the application for an extension of time. Such jurisdiction was also present in the early chancery practice in the case of an application for leave to appeal brought by a non‑party and the present rules did not affect that jurisdiction. No one factor or group of factors was determinative of how the Chancery Court would exercise its discretion in a given situation; rather, it was a combination of the relevant factors. In the present case, the Court of Appeal, acting within its jurisdiction, took into consideration all the relevant factors and granted the applications. It exercised its discretion in a judicial manner and its decision is not subject to appeal for error.
Cases Cited
Re Securities Insurance Co., [1894] 2 Ch. 410; Re Padstow Total Loss and Collision Assurance Association (1882), 20 Ch. D. 137; Gwynne v. Edwards (1845), 9 Beav. 22; Re Madras Irrigation and Canal Co.; Wood v. Madras Irrigation and Canal Co. (1883), 23 Ch. D. 248; Re Markham (1880), 16 Ch. D. 1; DuMoulin v. Langtry (1886), 13 S.C.R. 258; DuMoulin v. Langtry (1885), 11 O.A.R. 544; Re Henderson and Township of West Nissouri (1911), 23 O.L.R. 651; Fussel v. Dowding (1884), 27 Ch. D. 237; Curtis v. Sheffield (1882), 21 Ch. D. 1; Re Manchester Economic Building Society (1883), 24 Ch. D. 488; Cairns v. Cairns, [1931] 4 D.L.R. 819; Re Wigfull & Sons', Lim. Trade Mark (1918), 88 L.J. Ch. 30; The Queen v. E. & A. Leduc Ltée, [1955] Ex. C.R. 286; Bank of Nova Scotia v. Brown (1967), 40 N.B.R. (2d) 245; Lane v. Esdaile, [1891] A.C. 210; Ernewein v. Minister of Employment and Immigration, [1980] 1 S.C.R. 639; MacDonald v. City of Montréal, [1986] 1 S.C.R. 460, referred to.
(2) The Constitutional Issue
Per Beetz, Estey, Chouinard, Lamer and Le Dain JJ.: The principles of natural justice as well as s. 13(1) of the Official Languages of New Brunswick Act entitle a party pleading in a court of New Brunswick to be heard by a court, the member or members of which are capable by any reasonable means of understanding the proceedings, the evidence and the arguments, written and oral, regardless of the official language used by the parties. But no such entitlement can be derived from s. 19(2) of the Canadian Charter of Rights and Freedoms . The rights guaranteed by s. 19(2) with respect to the courts of New Brunswick are of the same nature and scope as those guaranteed by s. 133 of the Constitution Act, 1867 with respect to the courts of Canada and the courts of Quebec. The language of s. 19 was clearly and deliberately borrowed from s. 133 and should be similarly construed. These rights are essentially language rights unrelated to and not to be confused with the requirements of natural justice. They vest in the speaker or in the writer or issuer of court processes and give the speaker or the writer the constitutionally protected power to speak or to write in the official language of his choice. But there is no language guarantee, either under s. 133 of the Constitution Act, 1867 or s. 19 of the Charter , that the speaker will be heard or understood, or that he has the right to be heard or understood in the language of his choice.
This interpretation of s. 19(2) does not offend s. 16 of the Charter which contains a principle of advancement in the equality of status or use of the two official languages. The principle of advancement is linked with the legislative process referred to in s. 16(3) and the legislative process, unlike the judicial one, is a political process particularly suited to the advancement of rights founded on political compromise.
The common law right of the parties to be heard and understood by a court and the right to understand what is going on in court is not a language right but an aspect of the right to a fair hearing. This right belongs to the category of rights which in the Charter are designated as legal rights and protected at least in part by provisions such as those of ss. 7 and 14 . It would constitute an error to import the requirements of natural justice into language rights, or to relate one type of right to the other. Unlike language rights which are based on political compromise, legal rights tend to be seminal in nature because they are rooted in principle. Some of them, such as the one expressed in s. 7 of the Charter , are so broad as to call for frequent judicial determination. Language rights, on the other hand, although some of them have been enlarged and incorporated into the Charter , remain nonetheless founded on political compromise. This essential difference between the two types of rights dictates a distinct judicial approach with respect to each. More particularly, the courts should pause before they decide to act as instruments of change with respect to language rights. This is not to say that language rights provisions are cast in stone and should remain immune altogether from judicial interpretation. But the courts should approach them with more restraint than they would in construing legal rights.
Finally, it is not possible to conclude that Stratton J.A. was disqualified. In the absence of any system of testing, it is for the judge to assess in good faith and in as objective a manner as possible, his level of understanding of the language of the proceedings. Here, it cannot be inferred, from Stratton J.A.'s accession to counsel's request that he refer the applications to a bilingual judge, that he necessarily agreed with the appellants that his degree of understanding of the French language was inadequate. From his conduct it may be inferred that he considered that he had an adequate understanding of the French language to sit on the case in accordance with the requirements of natural justice and of s. 13(1) of the Official Languages of New Brunswick Act. The fact that counsel did not raise the issue of Stratton J.A.'s competence to sit on the merits of the applications is very significant.
Per Dickson C.J.: The constitutional question must be answered in the affirmative. Section 19(2) of the Charter provides to litigants the right to use the official language of their choice in proceedings before any court of New Brunswick. This right includes not only the right to make oral and written submissions in the language chosen by the individual but also, to make this right meaningful, the right to be understood by the judge or judges hearing the case, whether directly or through other means. To decide otherwise would be to give a narrow reading to the constitutional and fundamental right to use the official language of one's choice in the court. Such a result would be inconsistent with this Court's liberal construction of language rights and would frustrate the broad remedial purpose of the language guarantees provided in the Charter . Section 16 , which provides specific modalities to achieve the equality of status of the two official languages, is a strong indicator of that purpose. By adopting ss. 16 to 22 , the federal government of Canada and New Brunswick have demonstrated their commitment to official bilingualism within their respective jurisdictions. Although language rights in the courts are conceptually distinct from fair hearing rights, there is a certain degree of overlap between them. Both are concerned in part with effective communication between adjudicator and litigant.
On the facts of the present case, s. 19(2) of the Charter was not violated. It cannot be inferred from Stratton J.A.'s decision to refer the case to a bilingual judge that he was incompetent to hear submissions in French. Moreover, where there is no clear evidentiary basis to support the allegations of incompetence ‑‑ in this case, two conflicting affidavits ‑‑ good faith must be presumed on the part of judges. Therefore, in the absence of any objection at the time of the hearing to the presence of Stratton J.A. on the panel and in the absence of convincing evidence, it must be assumed that Stratton J.A. had sufficient knowledge of French to understand the submissions made by the appellants.
Per Wilson J.: There is no doubt that the constitutional question must be answered in the affirmative. Judges who sit on a case must be able to understand the proceedings, the evidence and the arguments regardless of whether the case was being heard in English or in French. This, indeed, is a requirement of due process. The protection afforded by s. 19(2) , however, was intended to do more than duplicate the pre‑ and post‑Charter entitlement to rudimentary fairness. The legislative context of s. 19 , in particular s. 16 , and the existing jurisprudence on linguistic rights developed under s. 133 of the Constitution Act, 1867 support that view. In fact, given Canada's fundamental commitment to the equal status of the two official languages contained in s. 16 of the Charter and the principle of gradual progression towards the ultimate goal of bilingualism implied by that commitment, the content of a litigant's right under s. 19 cannot be perceived as static but as gradually expanding over the years to meet increasing social expectations. The courts cannot define in futuro what is going to be required from time to time to satisfy the litigant's language right but they can determine ex post facto whether or not it was satisfied in a particular case. At the present time, to make the litigant's linguistic right meaningful in the context of the court's process, the judge's level of comprehension must go beyond a mere literal understanding of the language used by counsel. It must be such that the full flavour of the argument can be appreciated. The judge is the sole arbiter of his level of comprehension and he must determine that level in good faith and in as objective a manner as possible. Such determination can be challenged but only on the basis of proof.
In the case at bar, in the absence of evidence to the contrary, it must be assumed that Stratton J.A. applied this standard to himself and concluded that he met it. The inference that he considered his level of understanding of the French language inadequate cannot be drawn from the fact that he acceded to counsel's request to refer the applications for leave to appeal and for an extension of time to appeal to a bilingual judge. Rather he responded with sensitivity to the concern expressed by counsel, a concern not repeated before the panel of three.
Section 13(1) of the Official Languages of New Brunswick Act does not formulate a standard higher than the one found in s. 19(2) . Section 13(1) provides that a litigant shall not be disadvantaged by his language choice. In order to take advantage of the protection afforded by that section, a litigant must not only assert the disadvantage, he must establish it. This has not been done in this case.
Cases Cited
By Beetz J.
MacDonald v. City of Montréal, [1986] 1 S.C.R. 460, applied; Jones v. Attorney General of New Brunswick, [1975] 2 S.C.R. 182, referred to.
By Dickson C.J.
Jones v. Attorney General of New Brunswick, [1975] 2 S.C.R. 182; Attorney General of Quebec v. Blaikie, [1979] 2 S.C.R. 1016; Attorney General of Quebec v. Blaikie, [1981] 1 S.C.R. 312; Reference re Manitoba Language Rights, [1985] 1 S.C.R. 721; Mercure v. Attorney General of Saskatchewan, [1986] 2 W.W.R. 1; R. v. Tremblay (1985), 20 C.C.C. (3d) 454; Paquette v. R. in Right of Canada, [1985] 6 W.W.R. 594; Robin v. Collège de Saint‑Boniface (1984), 30 Man. R. (2d) 50; MacDonald v. City of Montréal, [1986] 1 S.C.R. 460; Law Society of Upper Canada v. Skapinker, [1984] 1 S.C.R. 357; Hunter v. Southam Inc., [1984] 2 S.C.R. 145; R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486; Bilodeau v. Attorney General of Manitoba, [1986] 1 S.C.R. 449, referred to.
By Wilson J.
Air Canada v. Joyal, [1982] C.A. 39, 134 D.L.R. (3d) 410, rev'g [1976] C.S. 1211; Association des Gens de l'Air du Québec Inc. v. Lang, [1977] 2 F.C. 22, aff'd [1978] 2 F.C. 371; Jones v. Attorney General of New Brunswick, [1975] 2 S.C.R. 182; Attorney General of Ontario v. Reale, [1975] 2 S.C.R. 624; Unterreiner v. The Queen (1980), 51 C.C.C. (2d) 373; Attorney General of Quebec v. Blaikie, [1979] 2 S.C.R. 1016; Attorney General of Quebec v. Blaikie, [1981] 1 S.C.R. 312; Reference re Manitoba Language Rights, [1985] 1 S.C.R. 721; Miller v. The Queen, [1970] S.C.R. 214; Veuillette v. The King (1919), 58 S.C.R. 414; Rural Municipality of De Salaberry v. Robidoux, Man. Prov. Ct., June 8, 1981; R. v. Mercure, [1981] 4 W.W.R. 435 (Sask. Prov. Ct.), aff'd [1986] 2 W.W.R. 1 (Sask. C.A.); R. v. Tremblay (1985), 20 C.C.C. (3d) 454; Paquette v. R. in Right of Canada, [1985] 6 W.W.R. 594; Robin v. Collège de Saint‑Boniface (1984), 30 Man. R. (2d) 50 (C.A.), aff'g (1984), 28 Man. R. (2d) 301 (Q.B.), referred to.
Statutes and Regulations Cited
Act for the Improvement of the Practice in the Court of Chancery, 1839 (N.B.), 2 Vict., c. 35, s. XIII.
Act relating to the administration of Justice in Equity, 1854 (N.B.), 17 Vict., c. 18, ss. 1, 2.
Act Respecting Practice and Proceedings in Supreme Court in Equity, 1890 (N.B.), c. 4, s. 131.
Canadian Charter of Rights and Freedoms, ss. 1 , 2 , 7 , 14 , 15 , 16 , 17 , 18 , 19 , 20 , 21 , 22 , 24 , 27 .
Constitution Act, 1867, s. 133 .
Constitution Act, 1982, ss. 41 , 43 , 52 , 55 .
Judicature Act, R.S.N.B. 1927, c. 113, ss. 8(1), 23.
Judicature Act, R.S.N.B. 1952, c. 120, ss. 8(2), 23.
Judicature Act, R.S.N.B. 1973, c. J‑2, ss. 1 [am. 1978 (N.B.), c. 32, s. 1(b)], 2(1) [rep. & subs. 1978 (N.B.), c. 32, s. 2; am. 1979 (N.B.), c. 36, s. 1], 8(2) [rep. & subs. 1978 (N.B.), c. 32, s. 8; am. 1979 (N.B.), c. 36, s. 1], 21.
Judicature Act, 1906, 1906 (N.B.), c. 37, ss. 3, 6, 19, 20.
Judicature Act, 1909, 1909 (N.B.), c. 5, ss. 3, 15.
Official Languages Act, R.S.C. 1970, c. O‑2, s. 2 .
Official Languages (Documents) Regulation, (N.B.) Reg. 76‑47.
Official Languages of New Brunswick Act, R.S.N.B. 1973, c. O‑1, ss. 2, 13(1), 13(1.1) [added 1982 (N.B.), c. 47, s. 1], 15 [rep. & subs. 1975 (N.B.), c. 42, s. 2].
Rules of Court of New Brunswick (1982), Rules 1.04 "Court", 3.02, 9, 15, 62.03, 62.21.
Schools Act, R.S.N.B. 1973, c. S‑5.
Authors Cited
Barristers' Society of New Brunswick, Final Report. Committee on Integration of the Two Official Languages in the Practice of Law, 1981.
Canada, Royal Commission on Bilingualism and Biculturalism. Report of the Royal Commission on Bilingualism and Biculturalism, Book I, The Official Languages, Ottawa, Queen's Printer, 1967.
Daniell's Chancery Practice, vols. I & II, 8th ed. by S. E. Williams and F. Guthrie‑Smith, London, Stevens & Sons Ltd., 1914.
Gautron, A. "French/English Discrepancies in the Canadian Charter of Rights and Freedoms " (1982), 12 Man. L.J. 220.
Jacob, I. H. "The Inherent Jurisdiction of the Court" (1970), 23 Current Legal Problems 23.
Katz, L. "Are There Constitutionally Guaranteed Language Rights in Criminal Code Proceedings" (1973), 11 Osgoode Hall L.J. 545.
Magnet, J. E. "The Charter 's Official Languages Provisions: The Implications of Entrenched Bilingualism" (1982), 4 Supreme Court L.R. 163.
New Brunswick, Official Languages Branch. Report of the Task Force on Official Languages, Towards Equality of the Official Languages in New Brunswick, Fredericton, 1982.
Smith, J. S. A Practice of the Court of Chancery, London, William G. Benning & Co., 1855.
Supreme Court Practice, 1985, vol. 1 by Jack I. H. Jacob ed. in chief, London, Sweet & Maxwell Ltd. and Stevens & Sons Ltd., 1984.
Tremblay, A. "L'interprétation des dispositions constitutionnelles relatives aux droits linguistiques" (1983), 13 Man. L.J. 651.
Tremblay, A. "The Language Rights (Ss. 16 to 23)" in W. S. Tarnopolsky and G.‑A. Beaudoin eds., The Canadian Charter of Rights and Freedoms : Commentary, Toronto, Carswells, 1982.
APPEAL from a judgment of the New Brunswick Court of Appeal (1984), 8 D.L.R. (4th) 238, 54 N.B.R. (2d) 198, 140 A.P.R. 198, granting respondent's applications for leave to intervene and to appeal a judgment of Richard C.J.Q.B. (1983), 48 N.B.R. (2d) 361, 126 A.P.R. 361 (clarified (1983), 50 N.B.R. (2d) 41, 131 A.P.R. 41; (1983), 51 N.B.R. (2d) 219, 134 A.P.R. 219). Appeal dismissed.
Maurice F. Bourque and Robert Décary, for the appellants.
John C. Friel, for the respondent.
Alban Garon, Q.C., and Roger Roy, for the intervener the Attorney General of Canada.
Bruce Judah, for the intervener the Attorney General for New Brunswick.
The following are the reasons delivered by
1. The Chief Justice‑‑I agree with my colleagues, Beetz and Wilson JJ. in dismissing the appeal. I adopt the reasoning of Wilson J. on the issues relating to the inherent jurisdiction of the New Brunswick Court of Appeal and its exercise of discretion. On the constitutional question, I am of the view that an affirmative response should be given.
2. The constitutional question was stated as follows:
Does s. 19(2) of the Canadian Charter of Rights and Freedoms entitle a party pleading in a court of New Brunswick to be heard by a court, the member or members of which are capable of understanding the proceedings, the evidence and the arguments, written and oral, regardless of the official language used by the parties?
I
The Factual Context
3. The facts giving rise to the litigation and the motion for leave to appeal by a non‑party are summarized by Wilson J. I shall confine my review of the facts to those which are pertinent to the constitutional question. The appellants, the Société des Acadiens du Nouveau‑Brunswick Inc. and the Association des conseillers scolaires francophones du Nouveau‑Brunswick, allege that their constitutional language rights were infringed when Stratton J.A., whose comprehension of French is contested, heard an application for leave to appeal as part of a panel of three judges. The hearing took place in both French and English. The appellants contend that Stratton J.A. did not have sufficient French language abilities to sit on the case.
4. Initially, the application was scheduled to be heard by Stratton J.A. alone. At the outset of the hearing of the motion, the appellants requested that the matter be heard by a bilingual judge. Stratton J.A. acceded to this request and referred the matter to Angers J.A. When Angers J.A. decided that the matter should be heard by a panel of three judges, Stratton J.A. sat as one of the panel members along with Angers and La Forest JJ.A., despite his earlier decision not to hear the case alone. At the time of the hearing before the panel, the appellants did not object to Stratton J.A.'s appearance on the bench.
II
The Interpretation of S. 19(2) of the Canadian Charter of Rights and Freedoms
5. The specific Charter provision relied on by the appellants is s. 19(2) , which provides:
19. (1) ...
(2) Either English or French may be used by any person in, or in any pleading in or process issuing from, any court of New Brunswick.
6. The question we must answer is whether the right to choose which language to use in court includes the right to be understood by the judge or judges hearing the case. In the context of this appeal we need not resolve all of the ancillary issues which will arise under s. 19 . In particular, we need not determine whether the assistance of interpreters or simultaneous translation would meet the requirement that a litigant be understood by the court. Stratton J.A. did not rely on the assistance of either. No evidence was adduced as to the effectiveness of interpreters or of simultaneous translation, in the context of s. 1 of the Charter or otherwise. No argument was addressed to this point and indeed counsel specifically requested that the Court refrain from deciding this issue in this case. Thus, we need only consider whether s. 19(2) gave the litigants in this case a right to be fully understood by the panel of three judges, including Stratton J.A.
7. In interpreting Charter provisions, this Court has firmly endorsed a purposive approach: see, for example, Law Society of Upper Canada v. Skapinker, [1984] 1 S.C.R. 357 at pp. 366‑68; Hunter v. Southam Inc., [1984] 2 S.C.R. 145 at pp. 155‑56; R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295 at p. 344; Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486 at pp. 499‑500. To give effect to a purposive approach in the language context, it is important to consider the constitutional antecedents of the Charter language protections, the cardinal values and purpose of the guarantees, the words chosen to articulate the rights, the character and larger objects of the Charter , and the purpose and meaning of other relevant Charter rights and freedoms. It is to this task that I now turn.
(a) Pre‑Charter Language Protections
8. It has been suggested that because of the similarity of the language in s. 133 of the Constitution Act, 1867 and s. 19(2) of the Charter the jurisprudence under the former will be influential in determining the outcome of Charter litigation. The actual wording of s. 19(2) parallels in part s. 133 .
9. I wish to make three preliminary observations with respect to the usefulness of s. 133 case law in interpretation of the Charter language guarantees. First, the specific issue to be resolved in the case at bar has not been decided in the context of s. 133 and related provisions; there is considerable litigation in courts across Canada on this very question. See Mercure v. Attorney General of Saskatchewan, [1986] 2 W.W.R. 1 (Sask. C.A.), leave to appeal granted by this Court, January 27, 1986; Robin v. Collège de Saint‑Boniface (1984), 30 Man. R. (2d) 50 (C.A.); R. v. Tremblay (1985), 20 C.C.C. (3d) 454 (Sask. Q.B.); Paquette v. R. in Right of Canada, [1985] 6 W.W.R. 594 (Alta. Q.B.) It is not within the scope of this case to give a definitive interpretation to s. 133 and related provisions vis‑à‑vis the language rights of litigants. I leave that debate to another day.
10. Secondly, despite the similarity between s. 133 and s. 19(2) , we are dealing with different constitutional provisions enacted in different contexts. In my view, the interpretation of s. 133 of the Constitution Act, 1867 is not determinative of the interpretation of Charter provisions.
11. Finally, although the specific issue raised in this appeal has not been decided in a s. 133 context, there is much to be learned about the general approach adopted by this Court to constitutional language protections from a review of the jurisprudence under s. 133 and related provisions. The full text of s. 133 reads:
133. Either the English or the French Language may be used by any Person in the Debates of the Houses of the Parliament of Canada and of the Houses of the Legislature of Quebec; and both those Languages shall be used in the respective Records and Journals of those Houses; and either of those Languages may be used by any Person or in any Pleading or Process in or issuing from any Court of Canada established under this Act, and in or from all or any of the Courts of Quebec.
The Acts of the Parliament of Canada and of the Legislature of Quebec shall be printed and published in both those Languages.
(Emphasis added.)
12. The first decision of note is Jones v. Attorney General of New Brunswick, [1975] 2 S.C.R. 182, in which the Court concluded that s. 133 did not preclude the conferring of additional rights or privileges beyond those provided in s. 133 . The Court thereby adopted a liberal interpretive approach which would enhance the protection of language rights by endorsing supplementary statutory reform. In analyzing the limited rights conferred in s. 133 , Laskin C.J. also held, at p. 193, that it provided, inter alia, a constitutionally based right to any person to use English or French in any pleading in any federally established court or any court of Quebec.
13. In Attorney General of Quebec v. Blaikie, [1979] 2 S.C.R. 1016 (Blaikie No. 1), the Court held that ss. 7 ‑13 of Chapter III of Title I of the Charter of the French Language, 1977 (Que.), c. 5, violated s. 133. The provisions in question stipulated that French was to be the language of the legislature and the courts in Quebec and made the French text of statutes and regulations the only official version. These provisions were found by the Court to violate the linguistic duality contemplated in s. 133 . In interpreting s. 133 in Blaikie No. 1 as well as in the follow‑up decision, Attorney General of Quebec v. Blaikie, [1981] 1 S.C.R. 312 (Blaikie No. 2), the Court revealed a willingness to expand the ordinary meaning of the words "Acts" and "Courts" in s. 133 to avoid frustrating the underlying purpose of the language guarantees.
14. In Blaikie No. 2 the Court also acknowledged that the right to use either French or English in court imposes affirmative obligations on the state to make that right meaningful. Thus in deciding that court rules of practice should be bilingual, the Court stated at p. 332:
The point is not so much that rules of practice partake of the legislative nature of the Code of which they are the complement. A more compelling reason is the judicial character of their subject‑matter for which s. 133 makes special provision.... All litigants have the fundamental right to choose either French or English and would be deprived of this freedom of choice should such rules and compulsory forms be couched in one language only.
15. The decision in Reference re Manitoba Language Rights, [1985] 1 S.C.R. 721, addressed the question of the constitutional necessity of enacting, printing and publishing bilingual legislation in Manitoba, pursuant to s. 23 of the Manitoba Act, 1870 (which parallels s. 133 ). In concluding that bilingual laws were required, the Court held, at p. 739, that the purpose of both s. 23 of the Manitoba Act, 1870 and s. 133 of the Constitution Act, 1867 was "to ensure full and equal access to the legislatures, the laws and the courts for francophones and anglophones alike". The Court also stated at p. 744:
Section 23 of the Manitoba Act, 1870 is a specific manifestation of the general right of Franco‑Manitobans to use their own language. The importance of language rights is grounded in the essential role that language plays in human existence, development and dignity. It is through language that we are able to form concepts; to structure and order the world around us. Language bridges the gap between isolation and community, allowing humans to delineate the rights and duties they hold in respect of one another, and thus to live in society.
16. The final two decisions of this Court I wish to discuss are MacDonald v. City of Montréal, [1986] 1 S.C.R. 460, and Bilodeau v. Attorney General of Manitoba, [1986] 1 S.C.R. 449, which are being rendered concurrently with this judgment. Both raised the question of whether a unilingual summons for a traffic violation offended the constitutional language provisions. A majority of the Court held in each case that a unilingual summons did meet the constitutional requirements. In my opinion, the outcome in both MacDonald and Bilodeau was clearly required by the words "... either of those Languages may be used ... in any ... Process ...issuing from any Court".
17. The conclusion in each of these cases does not affect the present appeal. Nor would MacDonald and Bilodeau be determinative of the outcome of an appeal similar to the one at bar arising pursuant to s. 133. Section 133 states clearly that the issuance of process from any court may be in either French or English. In contrast, we are concerned in this case with interpreting the phrase "either of those Languages may be used by any Person ... in ... any Court". This is something quite different from the language used in issuing documents. While s. 133 expressly limits the rights of recipients of court documents by empowering the court to issue documents in a language which the recipient may not understand, no such explicit limitation is to be found with respect to in‑court proceedings. In the absence of such a limitation, it is open for the court to conclude that the litigant's right to use either language entails a right to be understood, just as in Blaikie No. 2, it entailed a right to bilingual rules of practice.
18. In summary, the jurisprudence of this Court under s. 133 of the Constitution Act, 1867 and s. 23 of the Manitoba Act, 1870 reveals for the most part a willingness to give constitutional language guarantees a liberal construction, while retaining an acceptance of certain limits on the scope of protection when required by the text of the provisions.
(b) The Purpose of the Language Rights Protected in the Charter
19. Linguistic duality has been a longstanding concern in our nation. Canada is a country with both French and English solidly embedded in its history. The constitutional language protections reflect continued and renewed efforts in the direction of bilingualism. In my view, we must take special care to be faithful to the spirit and purpose of the guarantee of language rights enshrined in the Charter . In the words of André Tremblay, in his article "L'interprétation des dispositions constitutionnelles relatives aux droits linguistiques" (1983), 13 Man. L. J. 651 at p. 653:
[TRANSLATION] In short, a broad, liberal and dynamic interpretation of the language provisions of the Constitution would be in line with the exceptional importance of their function and would remedy the ills which the new Constitution was undoubtedly meant to address.
20. Sections 16 to 22 of the Charter entrench two official languages in Canada. They provide language protection in a broad spectrum of public life, including legislatures, courts, government offices and schools. According to s. 16 :
16. (1) English and French are the official languages of Canada and have equality of status and equal rights and privileges as to their use in all institutions of the Parliament and government of Canada.
(2) English and French are the official languages of New Brunswick and have equality of status and equal rights and privileges as to their use in all institutions of the legislature and government of New Brunswick.
(3) Nothing in this Charter limits the authority of Parliament or a legislature to advance the equality of status or use of English and French.
21. In my opinion, "all institutions of ... government" includes judicial bodies or courts: see Tremblay, "The Language Rights (Ss. 16 to 23)" in Tarnopolsky and Beaudoin (eds.), The Canadian Charter of Rights and Freedoms : Commentary (1982), 443 at p. 457. Despite academic debate about the precise significance of s. 16 , at the very least it provides a strong indicator of the purpose of the language guarantees in the Charter . By adopting the special constitutional language protections in the Charter , the federal government of Canada and New Brunswick have demonstrated their commitment to official bilingualism within their respective jurisdictions. Whether s. 16 is visionary, declaratory or substantive in nature, it is an important interpretive aid in construing the other language provisions of the Charter , including s. 19(2) .
22. In looking at the Charter it is worth observing that, unlike s. 133 , the provisions go beyond general principles to specific modalities for the achievement of equality of status in language, and expressly provide in s. 16(3) for legislative measures to advance the equality of status of the two official languages. Undoubtedly the fact that the two languages are to be of equal status (s. 16(1) and (2) ) encourages a generous application of such measures and of the Charter itself in achieving that goal.
23. I should add that the Charter was designed primarily to recognize the rights and freedoms of individuals vis‑à‑vis the State. When acting in their official capacities on behalf of the State, therefore, judges and court officials do not enjoy unconstrained language liberties. Rather, they are invested with certain duties and responsibilities in their service to the community. This extends to the duty to give a meaningful language choice to litigants appearing before them.
(c) The Right to Use the Official Language of One's Choice
24. Section 19(2) provides to litigants the right to use the official language of their choice. The essence of this appeal, therefore, is whether this right to "use" French or English in the courts embraces the right to be understood by the court in the language of one's choice as well as the right to make oral and written submissions in that language.
25. There is no disagreement amongst the members of this Court that the right embodies at a minimum the right to speak and make written submissions in the language of one's choice. Must this right, to be meaningful, extend to the right to be understood, either directly or possibly with the aid of an interpreter or simultaneous translation? In my opinion, the answer must be in the affirmative. What good is a right to use one's language if those to whom one speaks cannot understand? Though couched in individualistic terms, language rights, by their very nature, are intimately and profoundly social. We speak and write to communicate to others. In the courtroom, we speak to communicate to the judge or judges. It is fundamental, therefore, to any effective and coherent guarantee of language rights in the courtroom that the judge or judges understand, either directly or through other means, the language chosen by the individual coming before the court.
26. Both parties and the intervenors agreed on this point. As stated by the appellants at p. 10 of their factum:
[TRANSLATION] Appellants submit that the right to use French recognized in the Charter necessarily includes the right to be heard in French and to be understood by the Court.
The respondent replied, at p. 5:
The Respondent affirms that on this point [the constitutional question], it is without doubt that parties to proceedings before any court in New Brunswick have the right to be heard and understood in the official language of their choice.
In a similar vein, the Attorney General of Canada stated at p. 3, "it is beyond doubt that the corollary of the right to use French in all cases in the New Brunswick courts is the right to be understood by the court". The Attorney General of New Brunswick agreed. To decide otherwise, in my view, would be to give a narrow reading to the constitutional and fundamental right to use the official language of one's choice in the courts. Such a result would frustrate the broad remedial purposes of the language protections provided in the Charter and be inconsistent with a liberal construction of language rights.
(d) Language Rights versus Procedural Fairness
27. Language rights in the courts are, in my opinion, conceptually distinct from fair hearing rights. While it is important to acknowledge this distinction, each category of rights does not occupy a watertight compartment. Just as fair hearing rights are, in part, intimately concerned with effective communication between adjudicator and litigant, so too are language rights in the court. There will therefore be a certain amount of overlap between the two. At the s