Société des Acadiens et Acadiennes du Nouveau-Brunswick v. Canada

Société des Acadiens et Acadiennes du Nouveau-Brunswick v. Canada
Court (s) Database
Federal Court Decisions
Date
2005-08-26
Neutral citation
2005 FC 1172
File numbers
T-1996-01, T-490-02
Notes
Reported Decision
Decision Content
Date: 20050826
Docket: T-1996-01
Citation: 2005 FC 1172
Ottawa, Ontario, August 26, 2005
PRESENT: THE HONOURABLE MADAM JUSTICE GAUTHIER
BETWEEN:
SOCIÉTÉ DES ACADIENS ET ACADIENNES
DU NOUVEAU-BRUNSWICK
Applicant
and
HER MAJESTY THE QUEEN
Respondent
Docket: T-490-02
BETWEEN:
MARIE-CLAIRE PAULIN
Applicant
and
HER MAJESTY THE QUEEN
Respondent
and
COMMISSIONER OF OFFICIAL LANGUAGES
Intervener
REASONS FOR ORDER
[1] There are two actions before the Court, one brought by Marie-Claire Paulin and the other by the Société des Acadiens et Acadiennes du Nouveau-Brunswick Inc. (Société), pursuant to section 24 of the Canadian Charter of Rights and Freedoms and Schedule B to the Canada Act 1982 (U.K.), 1982 c. 11 (Charter). In this context, the Court must answer certain specific questions stated by the parties in relation to the language obligations of the Royal Canadian Mounted Police (RCMP) when it provides the provincial police services described in its contract with the Government of New Brunswick.
[2] These two actions against Her Majesty were joined for the purposes of the trial and the parties agree that the answers to the questions submitted will apply to both cases.
[3] The Commissioner of Official Languages was granted leave to intervene in file no. T-490-02, but only with respect to the interpretation of paragraph 6(1)(d) of the Official Languages (Communications with and Services to the Public) Regulations, SOR/92-48 (Regulations) and how it applies to the RCMP detatchment in Woodstock, New Brunswick.
[4] Notice of a constitutional question was served on the attorneys general of all the provinces and territories of Canada. None of the attorneys general intervened.
[5] At the pre-trial conference held before Justice Simon Noël, the parties stated that they intended to call a number of witnesses. Since then, however, they agreed to a number of admissions as to the facts, and they filed 23 documents jointly. In addition, the respondent filed the affidavit of Mr. Ricciardi, with the consent of the other parties. The parties also agreed on the formulation of the three questions submitted to the Court.
[6] Although some of the facts admitted are not really useful or relevant for the purposes of disposing of the questions on which the parties have agreed, it is appropriate to reproduce the text submitted on consent by the parties:
[TRANSLATION]
(A) The Société des Acadiens et des Acadiennes du Nouveau-Brunswick Inc. is a body corporate incorporated under the New Brunswick Companies Act. It is a not-for-profit corporation without share capital. It acts in the furtherance of its role as spokesperson for the Acadian community of New Brunswick and to protect and promote the rights and interests of that community.
(B) Marie-Claire Paulin is a citizen of New Brunswick residing at [...] in the city of Moncton, New Brunswick.
(C) The Royal Canadian Mounted Police (RCMP) is a Canadian police force established under section 3 of the Royal Canadian Mounted Police Act (Act). It is subdivided into a number of regions, including "J" Division (New Brunswick). Under subsection 20(1) of the Act, "[t]he Minister [Solicitor General] may, with the approval of the Governor in Council, enter into an arrangement with the government of any province for the use or employment of the Force, or any portion thereof, in aiding the administration of justice in the province and in carrying into effect the laws in force therein". Pursuant to arrangements made under section 20 of the Act, the RCMP provides for the administration of justice in the province and the carrying into effect of the laws in force therein, including, more specifically, the laws relating to crime prevention and the maintenance of order, and the enforcement of highway traffic regulations, the Criminal Code and other laws in force in New Brunswick, on behalf of the Government of New Brunswick and certain municipalities in the province.
(D) The RCMP is a federal institution within the meaning of section 3 of the Official Languages Act of Canada, R.S.C. 1985, c. O-3 (OLA of Canada). ... Pursuant to the arrangement made under section 20 of the Act, it enforces the laws of the province of New Brunswick and of certain municipalities in that province. However, the RCMP is not a provincial "police force" within the meaning of the Police Act, R.S.N.B. 1977, c. P-9.2.
(E) The Solicitor General (Minister of Public Safety) of New Brunswick issues directives to the Royal Canadian Mounted Police regarding the terms of the arrangements made under section 20, referred to in the preceding paragraph.
(F) New Brunswick is the only officially bilingual province in Canada. The two official language communities have equal status, rights and privileges. Accordingly, New Brunswick has special status, in particular because it is bound by the obligations set out in section 16.1 and subsections 16(2) and 20(2) of the Canadian Charter of Rights and Freedoms.
(G) The OLA of Canada and the regulations thereunder, Official Languages (Communications with and Services to the Public) Regulations, SOR/92-48 (Regulations) specify the points of service where the RCMP is required to offer services to the public, and to communicate, in both official languages of New Brunswick.
FILE NO. T-490-02
(H) Marie-Claire Paulin was arrested on April 26, 2000, by a member of the RCMP, on the Trans-Canada Highway in the Woodstock area, and more specifically at Debec, New Brunswick, for speeding. The RCMP member in question was unable to speak to Mrs Paulin in French, and no active offer in that respect was made. The ticket was issued in French.
(I) The Woodstock RCMP detachment is not located at a point of entry into Canada; it is located near (15 km from) a border post. At the border post, the RCMP offers its services in both official languages.
(J) Marie-Claire Paulin paid the fine she was ordered to pay on April 26, 2000.
(K) ...
FILE NO. T-1996-01
(L) Robin S. Wilson, a consultant, was retained by the RCMP to do a review of the operations of all RCMP offices in the Atlantic region, including the offices in New Brunswick, to determine whether the language requirements at those offices had been established in accordance with the provisions of the OLA of Canada and Treasury Board Secretariat policies.
(M) In the mid-1990s, the four RCMP Atlantic divisions - "H" Division in Nova Scotia, "B" Division in Newfoundland and Labrador, "L" Division in Prince Edward Island and "J" Division in New Brunswick - were combined. The purpose of the reorganization was to allocate administrative offices among the divisions.
(N) Within the RCMP, "J" Division is the only Atlantic division where both official languages are recognized as languages of work. Under Part V of the OLA of Canada, which deals with the language of work in federal institutions, some regions are designated bilingual. This is the case for New Brunswick. In "bilingual" regions, for the purpose of language of work, federal institutions have a duty to ensure that their work environment is conducive to the effective use of English and French and that their employees are able to exercise the right to use either official language, subject to the obligations involved in serving the public and other employees. In other regions, the treatment of the two languages in workplaces must be reasonably comparable to the treatment of both official languages in the work environments in parts or regions of Canada where the other official language predominates.
(O) The question of official languages was discussed at meetings of the Atlantic Region transition team. It was decided at that time that a subcommittee would be created to do an in-depth review of the question of official languages in the context of regionalization. The subcommittee concluded that "J" Division officials had been overly zealous in implementing the language obligations imposed by the OLA of Canada.
(P) The subcommittee therefore made recommendations to the Atlantic Region Steering Committee, which, in the subcommittee's submission, would provide for fair and equitable application of language obligations in that region. The main recommendation was that all offices, both administrative and operational, be the subject of an immediate review to determine the need for designated bilingual positions. The review was to include an evaluation of the manner in which Treasury Board Secretariat criteria were being applied for each group of employees and each detachment, and to indicate why they applied and how they were being implemented, as well as the level, profile and minimum number of positions needed to provide bilingual services.
(Q) RCMP management in the Atlantic Region agreed to act on the subcommittee's recommendation and retain an outside consultant, Robin S. Wilson, to do a review of how the OLA of Canada and the regulations under that Act were being applied and implemented in the Atlantic Region.
(R) Upon completing his investigation, the consultant recommended an overall reduction in the RCMP's language obligations in the area of oral communications. More specifically, he proposed that the appropriate level of language skills for the large majority of RCMP members' positions in "J" Division be BBB, to replace the BBC level that had previously been in effect; the letter "B" indicates a intermediate level of comprehension in oral interaction, while "C" indicates a superior level.
(S) The applicant Société des Acadiens et Acadiennes du Nouveau-Brunswick Inc. submits that any review of positions at RCMP offices in New Brunswick for the purpose of determining language requirements at those offices, including the review done by the consultant in this case, must have regard to the unique characteristics of New Brunswick in matters of language, and more specifically to section 16.1 and subsections 16(2) and 20(2) of the Canadian Charter of Rights and Freedoms.
(T) The respondents' position is that section 16.1 and subsections 16(2) and 20(2) do not apply in this case, and in any event that the conclusions stated in the Wilson report have not been implemented.[1]
Issues
[7] As noted earlier, the parties expressly limited the issues to be decided by the Court to the following questions:
(A) Does the RCMP have a duty to comply with the special constitutional obligations of New Brunswick as set out in section 16.1 and subsections 16(2) and 20(2) of the Charter?
(B) Is the RCMP required to have regard to and comply with section 16.1 and subsections 16(2) and 20(2) in interpreting and implementing subsection 20(1) of the Charter and the OLA of Canada and the Regulations in New Brunswick?
(C) Does the RCMP have a duty under paragraph 6(1)(a) of the Regulations to offer its services in both official languages, throughout the area served by the Woodstock detachment?
Relevant Legislation
[8] The most relevant statutory provisions are reproduced in appendix A of these reasons.
Positions of the Parties
[9] The applicants admit that the RCMP is a federal institution. However, they submit that when a purposive approach is taken to sections 16, 16.1 and 20 of the Charter and they are given a generous and expansive interpretation based on their purpose, and in a way that is consistent with preserving the official language communities of Canada, and more specifically the official language communities of New Brunswick, and enabling them to flourish, the answer to the first two questions submitted must be "yes", for the following reasons:
(A) even though the RCMP is a federal institution, when it agrees, by contract, to provide provincial police services in New Brunswick and its members act as peace officers on behalf of the province within the meaning of the Official Languages Act of New Brunswick S.N.B. 2002, c. O-0.5 (OLA of N.B.), it must serve members of the public of New Brunswick in the official language of their choice, because, for such purposes only, it is to be treated as an institution of New Brunswick subject to the obligations set out in sections 16.1, 16(2) and 20(2) of the Charter;
In any event, or in the alternative:
(B) the principle set out in section 16.1 of the Charter is binding on the federal government and its institutions in the same manner as on the government and the institutions of New Brunswick. It must therefore be used to interpret the obligations of federal institutions under subsection 20(1) of the Charter when those institutions provide services in New Brunswick.
[10] The respondent disputes those two conclusions, and submits that:
(A) section 16.1 of the Charter applies to the legislature and institutions of New Brunswick only.
(B) in the alternative, even if federal institutions must have regard to the principle set out in section 16.1, the constitutional obligations of the RCMP, when it provides services at an office located outside the capital, are clearly defined in subsection 20(1) of the Charter and section 22 of the OLA of Canada, and in the Regulations. Those are the only instruments that define the obligations of the RCMP, whether its services are delivered under a contract with New Brunswick or otherwise.
(C) the Government of New Brunswick may not interfere in the administration of the RCMP, which is a federal institution, by enacting a law or making regulations whose purpose is to impose language obligations on it that are more onerous than the obligations provided by Parliament. Section 31 of the OLA of N.B. is therefore of no force or effect as against the RCMP.
(D) New Brunswick did not establish a language standard in its contract with the RCMP, and made no provision for compensation for the additional costs that would result from setting a language standard that was more onerous than the standard that applied by operation of law, under the Charter, the OLA of Canada and the Regulations. The province may not unilaterally change the terms of that agreement by provisions incorporated in the OLA of N.B., or otherwise.
Analysis
(a) General Principles of Interpretation
[11] Although the parties come to different conclusions, the principles of interpretation that the applicants advanced, which are based on the purposive approach, are not disputed.
[12] The approach to the interpretation of language rights that is entrenched in the Constitution was clearly expressed by Justice Michel Bastarache in R. v. Beaulac, [1999] 1 S.C.R. 768 at paragraphs 24 and 25:
It also means that the exercise of language rights must not be considered exceptional, or as something in the nature of a request for an accommodation. This being said, I note that this case is not concerned with the possibility that constitutionally based language rights may conflict with some specific statutory rights.
Language rights must in all cases be interpreted purposively, in a manner consistent with the preservation and development of official language communities in Canada; see Reference re Public Schools Act (Man.), supra, at p. 850. To the extent that Société des Acadiens du Nouveau-Brunswick, supra, at pp. 579-80, stands for a restrictive interpretation of language rights, it is to be rejected. The fear that a liberal interpretation of language rights will make provinces less willing to become involved in the geographical extension of those rights is inconsistent with the requirement that language rights be interpreted as a fundamental tool for the preservation and protection of official language communities where they do apply. It is also useful to re-affirm here that language rights are a particular kind of right, distinct from the principles of fundamental justice. They have a different purpose and a different origin. I will return to this point later.
[13] This method was also adopted in Arsenault-Cameron v. Prince Edward Island, [2000] 1 S.C.R. 3 at paragraph 27.
[14] The OLA of Canada is also an enactment that enjoys special status, as Justice Robert Décary pointed out in Canada (Attorney General) v. Viola (C.A.), [1991] 1 F.C. 373 (F.C.A.)(QL) at paragraph 16:
16 The 1988 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 (see note 6 below). 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 for our society" and must be so interpreted "as to advance the broad policy considerations underlying it" (see note 7 below). To the extent, finally, that it is legislation regarding language rights, which have assumed the position of fundamental rights in Canada but are nonetheless the result of a delicate social and political compromise, it requires the courts to exercise caution and to "pause before they decide to act as instruments of change", as Beetz J. observed in Société des Acadiens du Nouveau-Brunswick Inc. et al. v. Association of Parents for Fairness in Education et al. []see note 8 below]: ... .
note 8: [1986] 1 S.C.R. 549 at p. 578.
[15] This approach to the interpretation of the OLA of Canada was confirmed by the Supreme Court in Lavigne v. Canada(Office of the Commissioner of Official Languages), [2002] 2 S.C.R. 773 at paragraph 23.
[16] And lastly, this method has been consistently applied by the Federal Court, in, inter alia, Canada (Commissioner of Official Languages) v. Canada (Department of Justice), [2001] F.C.J. No. 431, (T.D.)(QL) and Doucet v. Canada, [2004] F.C.J. No. 1813, (T.D.)(QL). It is the one that I intend to follow.
(b) First question: Does the RCMP have a duty to comply with the special constitutional obligations of New Brunswick as set out in section 16.1 and subsections 16(2) and 20(2) of the Charter?
[17] The applicants submit that there is no doubt that members of the public in New Brunswick and particularly Mrs Paulin, would have had a right to communicate in the language of their choice if police services in the Woodstock area had been provided by a police force established by the municipality or by the province.
[18] On this point, they rely on the decisions in Gautreau v. The Queen, [1989] N.B.J. No. 1005[2] (N.B.Q.B.)(QL) and R. v. Haché, [1993] N.B.J. No. 474 (N.B.C.A.)(QL).
[19] They say that the provisions of the Charter that apply generally throughout New Brunswick (16.1, 16(2) and 20(2)) and the clear provisions of the OLA of N.B. cannot be applied discriminatorily, depending on what agency is actually assigned by the Government of New Brunswick to administer the laws of the province. That principle was recognized by the Federal Court in Canada (Commissioner of Official Languages) v. Canada(Department of Justice), supra.
[20] In that case, the Court had to determine whether the Ontario government and the municipalities acting under a power delegated by the federal government in relation to the administration of prosecutions for offences under federal statutes and regulations were required to comply with the language requirements set out in the OLA of Canada.
[21] On that point, Justice Pierre Blais wrote:
116 As suggested by counsel for the applicant, section 25[3] of the OLA simply confirms the constitutional principle that a government may not divest itself of the constitutional obligations to which it is bound by the Charter by delegating certain of its responsibilities. The duty that is incumbent on the Attorney General of Canada, to offer administrative services relating to prosecutions for federal contraventions in both official languages, is imposed not only by Part IV of the OLA, but also by the Charter. The applicant suggests that a constitutional duty cannot be avoided by delegating, by incorporation by reference, or by any other
process.
...
137 It would therefore seem important to ensure that the legal obligations of the delegating authority, the federal government, or of the delegates, the Government of Ontario and municipal governments, particularly with regard to language rights, which were characterized earlier as constitutional rights, are delineated and specified sufficiently to ensure that the rights of every accused person will be respected, whether the legislation relating to contraventions is administered by the federal government, the Ontario Government or the municipal authorities.
...
140 It must be recalled that in administering the CA, the Government of Ontario is applying a federal statute within the territory of the province. Accused persons are entitled to expect the same language rights guarantees as if it were the Attorney General of Canada administering the CA.
...
141 A federal law of general application such as the OLA cannot be applied throughout Canada in a discriminatory manner, depending on who is responsible for applying the CA. The language guarantees set out in the OLA and in the Criminal Code must therefore apply regardless of whether the Attorney General of Canada, the Attorney General of Ontario or the municipalities are given the authority to administer the CA.
[22] The respondent submits that the agreement with the province of New Brunswick, dated April 1, 1992 (Contract), expressly provides as follows:
2.1b) Canada is hereby authorized by the Province to carry out the powers and duties of the provincial police force for the purpose of providing the Provincial Police Service in accordance with this Agreement.
3.1 a) The internal management of the Provincial Police Service, including its administration and the determination and application of professional police procedures, shall remain under the control of Canada.
[23] The respondent does not dispute that police services provided by the municipalities that are subject to the Municipalities Act, S.N.B. 1973 c. M-22 and police services established under the Police Act, S.N.B. 1977, c. P-9.2 may be regarded as provincial institutions that are subject to sections 16.1 and subsections 16(2) and 20(2) of the Charter. This is because the province would probably, in those cases, exercise sufficient control to justify that interpretation. With respect to the RCMP, however, the provincial government does not exercise control, because that police force does not come under its jurisdiction. It is not subject to the Police Act and is not an agent of the provincial Crown.
[24] In the respondent's submission, the Contract that is in force until 2012 does not make the RCMP a provincial institution. On that point, the respondent relies on the decision of the New Brunswick Court of Queen's Bench in Société des acadiens et acadiennes du Nouveau-Brunswick Inc. v. Royal Canadian Mounted Police and Robin S. Wilson (2001), 244 N.B.R. (2d) 366. That decision was made in proceedings brought by the Société before it instituted its action in file No. T-1996-01. In it, the Court confirmed that only the Federal Court has jurisdiction to hear an application for judicial review of administrative actions or decisions of the RCMP. On that point, Justice Réginald Léger said:
16 The applicant submits that for all intents and purposes, the Royal Canadian Mounted Police is an institution of the Government of New Brunswick since it provides police services on behalf of the Government of New Brunswick and some municipalities, including crime prevention, maintenance of order, enforcement of traffic regulations, enforcement of the Criminal Code and statutes of New Brunswick, including the Motor Vehicle Act, as well as emergency services. I cannot accept this position.
17 The Royal Canadian Mounted Police does not lose its federal status because it enforces provincial and municipal legislation pursuant to a service contract with the Province of New Brunswick and some municipalities.
18 In my opinion, it is clear that the Royal Canadian Mounted Police is a "federal board, commission or tribunal" within the meaning of the Federal Court Act.
19 I also find that the Royal Canadian Mounted Police remains at all times a federal institution and that it cannot be transformed into a provincial institution by acting on behalf of the Government of New Brunswick.
[25] The respondent also cited the decisions of the Supreme Court of Canada in AG Quebec and Keable v. AG Canada, [1979] 1 S.C.R. 218 and AG Alberta v. Putnam, [1981] 2 S.C.R. 267, which confirm that the province's jurisdiction in respect of the administration of justice and the administration of provincial statutes and municipal by-laws within the province does not give it the authority to intervene in the administration of the RCMP, even where the RCMP is providing services under a contract similar to the one signed with New Brunswick. In the respondent's submission, this is exactly what New Brunswick is attempting to do by way of the OLA of N.B.
[26] There can be no doubt that the Charter applies, because the RCMP falls under the constitutional authority of Parliament. The respondent submits, however, that it is subsection 20(1) of the Charter, and that provision alone, that defines the applicable standard. On that point, the respondent cited the decision of Justice Edmond Blanchard in Doucet v. Canada, [2004] F.C.J. No. 1813, in which he said, at paragraph 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.
[27] On that point, Blanchard J. was in agreement with the Supreme Court of Nova Scotia in R. v. Doucet, [2003] N.S.J. No. 516 (S.C.N.S.)(QL), in which Justice Allan Boudreau said, at paragraph 32:
[TRANSLATION] 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.
[28] In my opinion, there is no doubt that when it comes to matters of internal management, the RCMP is and at all times continues to be a federal institution.
[29] In file No. T-1996-01, the respondent submitted that position classifications are a matter of internal management. I agree. However, that conclusion does not have the impact that the respondent attributes to it in terms of the analysis of this first question, because section 20(2) deals, first and foremost, with the delivery of services. The level of service to be provided has only a ricochet effect on internal administration and position classification, because the level of services is one of the objective factors that the Commissioner takes into account.
[30] The extent and quality of services provided to the public within New Brunswick are more matters of the level of services than of internal management, and the Contract clearly permits the Minister responsible for police services in New Brunswick to get involved in these matters. In fact, it gives the Minister a substantial amount of control over them. It is the Minister, in consultation with the Commissioner, who determines the level of services. (See, for example, clauses 3.1b), c) and d), 4(1), 4.2, 7, 7.1a), 7.3 and 7(4) of the Contract appended to these reasons as Appendix B).
[31] However, as the respondent pointed out, there is no evidence before the Court that a language standard different from the standard generally provided for at section 20(1) of the Charter and in the OLA of Canada and the Regulations has been set by Contract.
[32] There is no doubt that the RCMP could have agreed, in the Contract, to provide services in both languages throughout New Brunswick, since the duties imposed by the Charter consitute a threshold, and not a ceiling, even if the RCMP is subject to the duty imposed by subsection 20(1) only.
[33] Nor is there any doubt that since the OLA of N.B. was enacted, in 2002, the Government of New Brunswick has had a duty to ensure that peace officers communicate with the public of New Brunswick in both languages, even where the service is provided by a third party under a contract.
[34] Having regard to the evidence before me and the submissions of the respondent, which were that no instructions have been received from the Minister in this respect, it would appear that in the present instance this duty has not beeen fulfilled. However, as I said, the Attorney General of New Brunswick did not intervene, after receiving the notice of constitutional question, and he was not made a party to any of the actions before the Court.
[35] Furthermore, because the argument that section 31 of the OLA of N.B. is of no force or effect as against the RCMP as a federal institution was not made in the notice of constitutional question, it cannot be considered by the Court.
[36] The fact that the RCMP is and continues to be a federal institution does not, in itself, answer the question proposed by the parties. As the Supreme Court of Canada has said in numerous decisions (Eldridge v British Columbia (A.G.), [1997] 3 S.C.R. 624, Godbut v. Longueuil (City), [1997] 3 S.C.R. 844, Slaight Communications v. Davidson, [1989] 1 S.C.R. 1038, Blencoe v. British Columbia (Human Rights Commission), [2000] 2 S.C.R. 307), the Charter applies to the entire federal and provincial government apparatus. In addition to the institutional interpretation of the words "legislature and government", which extends the application of section 32 of the Charter to include all bodies over which the government exercises a sufficient degree of control (Lavigne, supra, Douglas / Kwantlen Faculty Association v. Douglas College, [1990] 3 S.C.R. 570, McKinney v. University of Guelph, [1990] 3 S.C.R. 229, Stoffman v. Vancouver General Hospital, [1990] 3 S.C.R. 483), the words "legislature and government" in that section have been given a functional interpretation that extends their application to include all bodies that perform a "governmental function", that is, that exercise the power, under an Act or other statutory authority, to unilaterally enforce standards of human behaviour (Constitutional Law of Canada, Peter Hogg, volume 2, paragraph 34.2c, pages 34-12.1 to 34-15).
[37] The language of sections 16, 18 and 20 differs somewhat from the language of section 32, but the criteria used under section 32 have also been applied to determine which body is an institution of the government within the meaning of those sections (Moncton (City) v. Charlebois, [2002] N.B.J. No. 480, 2001 NBCA No. 117 at paragraphs 97 et seq., Droit Constitutionnel, Henri Brun and Guy Tremblay, 4th edition, p. 844).
[38] In the two decisions cited by the applicants (Haché, supra, and Gautreau, supra), the police services were provided directly by the province or by a body under its control, a municipality. The issue was more whether, based on the institutional interpretation of the word "government", those services were the services of an institution covered by subsection 20(2). Those decisions are of little use here, except for the comments by Justice Jean-Claude Angers, concurred with by Justice Lewis Ayles, to the effect that the police service is a service of the government because the province has the power to establish police services under its constitutional power to administer justice, and at common law governments establish police services to maintain order and enforce the laws of the land.
[39] As Peter Hogg said in Constitutional Law of Canada, 4th edition, at page 514, the performance of provincial and municipal police services under a contract between the RCMP and a province is authorized by a statute of the province (section 2 of the Police Act of New Brunswick) and by a federal statute (section 20 of the Royal Canadian Mounted Police Act) and derives in part from the province's power to administer justice under subsection 92(14) of the Constitution Act, 1867, R.S.C. 1985 app. II, No. 5. In his view, the RCMP is, as a rule, subject to the control of the provincial attorney general or minister responsible for police services when it provides provincial police services under its contract. That is exactly what the provisions of the Contract referred to in paragraph 37 of my reasons do.
[40] When the RCMP member arrested Mrs Paulin and gave her a ticket under the Motor Vehicle Act, R.S.N.B. 1985, c. M-17, he was performing a government function, more particularly a function of the Government of New Brunswick.
[41] On this point, I note that in R. v. Lerke (1986), 25 D.L.R. (4th) 403, cited in R. v. Chang, [2003] A.J. No. 1281 (Alta. C.A.)(QL) and followed in R. v. N.S., [2002] O.J. No. 3028, R. v. Johns, [2004] N.B.J. No. 510 and Mascouche (ville de) v. Houle, [1999] R.J.Q. 1894 (Que. C.A.)(QL), the Alberta Court of Appeal held that the arrest of an individual is a government function whether the person making the arrest is a peace officer or a private individual. Accordingly, even when that act is performed by a private individual, it is subject to the Charter.
[42] Having regard to the provisions of the Contract and the fact that the RCMP is performing a function of the Government of New Brunswick when it provides the police services set out in the Contract, I am satisfied that, in relation to those acts only, the RCMP must comply with the duties imposed on the institutions of that province by subsection 20(2).
[43] I do not see why the fact that the RCMP is a federal institution that is required to comply with the duties set out in subsection 20(1) when one applies the institutional interpretation would preclude the application of a functional interpretation of subsection 20(2) of the Charter in the present case.
[44] Naturally, and as I said earlier, the language obligations set out in subsection 20(1) are a threshold. Accordingly, with respect to services provided under a similar contract with a province that has no language obligation, the RCMP would at least have to comply with the standard set out in subsection 20(1) of the Charter that apply to it because it is a federal institution (Doucet, supra).
[45] This conclusion is in fact entirely consistent with the one adopted by my colleague Justice Pierrre Blais in Canada(Commissioner of Official Languages), supra. Like him, I regard it as essential to ensure that the provincial government cannot evade its constitutional obligations by assigning a federal institution to maintain order and enforce the law within the province rather than having this done by a municipality or a private entity.
[46] I would therefore "yes" to the question concerning subsection 20(2), it being understood that section 16.1 and subsection 16(2) can be considered for the purpose of interpreting the obligation established in subsection 20(2).
(c) Second question: Is the RCMP required to have regard to and comply with section 16.1 and subsections 16(2) and 20(2) in interpreting and implementing subsection 20(1) of the Charter and the OLA of Canada and the Regulations in New Brunswick?
[47] To answer this second question, it is of course not enough simply to reiterate the reasoning applied in considering the first question. The Court understands from the parties that this second question must be analyzed having regard to the duties of institutions of the federal government only, without considering the fact that the RCMP may be otherwise required to comply with the province's constitutional obligations in relation to acts performed under its Contract.
[48] In their additional submissions, set out in a letter dated May 27, 2005, the applicants said:
[TRANSLATION] The purpose of this second question is not to obtain strict application of the provisions set out in section 16.1 or subsections 16(2) and 20(2) of the Charter to the respondent; rather, it is to determine whether the respondent must have regard to those provisions in determining how the Regulations made under the OLA in relation to the citizens of New Brunswick, who have special constitutional status. It may in fact be that from a letter of the law perspective, those provisions do not apply to the respondent, but that the respondent must nonetheless have regard to them in applying her duties in respect of language, which are set out in, inter alia, the OLA. ... This second question presents the problem in a different light, in the submission of the applicants. Regardless of the nature of the acts performed by the Royal Canadian Mounted Police, the applicants' position is that it may not, having regard to the purpose of the OLA, disregard the enhanced language framework that applies to the two official language communities of New Brunswick in applying the OLA and the Regulations made thereunder in that province.
[49] It is important to note that the applicants are not challenging the constitutional validity of the Regulations, which contain very specific rules for determining whether there is significant demand within the meaning of subsection 20(1) of the Charter and section 22 of the OLA of Canada. They are not asking the Court to declare it to be of no force and effect. Rather, they have taken the position that the OLA of Canada and the Regulations could be validly interpreted having regard to subsection 16.1(1) of the Charter if the Court were to find that the RCMP, as a federal institution, has to have regard to that provision. On the other hand, the applicant provided no details as to how the specific language of the Regulations would lend itself to such interpretation.
[50] In addition, notwithstanding the generality of the question proposed, it must be noted that, having regard to the evidence and the fact situation before me, the Court can consider that question only as it relates to the concept of significant demand, as found in paragraph 20(1)(a) of the Charter and section 22 of the OLA of Canada.
[51] It should first be noted, with respect to subsections 16(2) and 20(2), that they set out the constitutional duties of institutions of the legislature and government of New Brunswick, while the OLA of Canada was enacted, and the Regulations made, by Parliament, for the purpose (even though they sometimes go beyond it) of implementing the constitutional duties of Parliament and the federal government in respect of language. I do not see why or how Parliament can be required to have regard to them in giving effect to its own duties. The Charter applies to Parliament and the Government of Canada only in matters that are within their jurisdiction (section 32 of the Charter).
[52] Those provisions are also not relevant in interpreting the OLA of Canada and the Regulations.
[53] In any event, even if we were to have regard to subsection 20(2) in interpreting subsection 20(1), I do not see how this could lead to the conclusion proposed by the applicants, that the concept of "significant demand" necessarily covers New Brunswick as a whole. On the contrary, if we consider that the framers clearly chose to use different language to define their respective duties, we would have to conclude, rather, that the concept of "significant demand" does not necessarily mean that services must be provided in both languages everywhere in New Brunswick.
[54] The situation i