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

Canada (Commissioner of Official Languages) v. Canada (Department of Justice)
Court (s) Database
Federal Court Decisions
Date
2001-03-23
Neutral citation
2001 FCT 239
File numbers
T-2170-98
Notes
Digest
Decision Content
Date: 20010323
Docket: T-2170-98
Neutral Citation: 2001 FCT 239
BETWEEN:
COMMISSIONER OF OFFICIAL LANGUAGES
Applicant
- and -
HER MAJESTY THE QUEEN
(DEPARTMENT OF JUSTICE OF CANADA)
Respondents
- and -
ASSOCIATION DES JURISTES
D'EXPRESSION FRANÇAISE DE L'ONTARIO
Intervener
ORDER AND REASONS FOR ORDER
BLAIS J.
[1] This is a remedy application by the Commissioner of Official Languages (the "Commissioner") under para. 78(1)a) of the Official Languages Act, R.S.C. 1985 (4th Supp.), c. 31 (the "OLA" ) against the respondents on the ground that they have failed to comply with their duties and commitments in respect of language, as set out in Parts IV and VII of the OLA, in applying the Contraventions Act, S.C. 1992, c. 47 (the "CA") and the Application of Provincial Laws Regulations thereunder, SOR/96-312.
FACTS
[2] On February 19, 1997, the Association des juristes d'expression française de l'Ontario ("AJEFO") filed a complaint with the Commissioner of Official Languages expressing concerns regarding the enactment and administration of the CA and the regulations thereunder.
[3] AJEFO's concerns stemmed from the omission of the federal government to confirm in the Act to amend the Contraventions Act and to make consequential amendments to other Acts, S.C. 1996, c. 7, the maintenance of languages rights guaranteed in federal laws. More specifically, AJEFO's concerns stemmed from Bill 108 (Streamlining of Administration of Provincial Offences Act, 1997), the first reading of which was held in the Ontario Legislative Assembly on January 20, 1997.
[4] Bill 108 (which was adopted on June 11, 1998, now Streamlining of Administration of Provincial Offences Act, 1998, S.O. 1998, c. 4 (hereinafter Streamlining of Administration of Provincial Offenses Act, 1998)), provided for agreements authorising a municipality to perform courts administration and court support functions, including the functions of the clerk of the court, notably for application of the CA, but did not provide for the maintenance of existing language rights in Ontario at the municipal level.
[5] After conducting the investigation provided for by the OLA, and specifically Part IX thereof, the Commissioner prepared a report which was filed on November 27, 1997. The Commissioner made five recommendations to Justice Canada:
1. That the Department of Justice undertake thorough consultations with the official language minority and jurists concerned in each province and territory before entering into an agreement with provincial or territorial governments pursuant to the CA;
2. That the Department of Justice taken the necessary measures as soon as possible to ensure that the prosecution of federal contraventions by provincial authorities or any third party respects as a minimum the language rights guaranteed by the Criminal Code and Part IV of the OLA where applicable;
3. That the Department of Justice ensure that both present and future agreements (i.e. with other provinces or territories) made under the CA include provisions whereby the related court administration and support functions respect the language rights of the accused and that court staff receive appropriate training in this regard;
4. That the Department of Justice ensure that any agreement in which it enters pursuant to the CA include a provision whereby any subdelegation would require its approval and contain a comprehensive linguistic clause;
5. That, in the context of the implementation of the CA, the Department of Justice establish accountability, control and recourse mechanisms to ensure the complete respect of the language rights flowing from the Criminal Code.
[6] On December 3, 1997, AJEFO filed a second complaint against Justice Canada in relation to the CA and an agreement signed by the Department of Justice and the City of Mississauga on June 9, 1997. The Commissioner was continuing her investigation into that complaint as of the date for completing the evidence in this application.
[7] The Deputy Minister of Justice, George Thomson, responded to the Commissioner's report on January 28, 1998, setting out the measures that his Department and the provinces were prepared to consider; these included:
- That the provinces had indicated that they were receptive to the idea of including provisions relating to respect for the spirit of the language provisions of the Criminal Code in agreements;
- That two clauses relating to ensuring respect for the language rights principles set out in the Criminal Code, developed by the Department, would be incorporated in agreements with the provinces, territories and municipalities, as the case may be;
- That the Department would consult with the minority groups concerned.
[8] On February 12, 1998, Mr. Gagnon, the director of the "Contraventions Project" at the Department of Justice, stated that the Department would terminate all negotiations regarding agreements under the CA in the event that a province or territory refused to incorporate a clause in the agreement to ensure respect for language rights.
[9] The Department negotiated the addition of a language clause when the agreement with the City of Mississauga was renewed on June 17, 1998. The City of Mississauga has since established mechanisms to ensure that services are provided in French in relation to parking tickets.
[10] The Commissioner initiated a follow-up investigation under the provisions of the OLA, and specifically Part IX. In her report, which was submitted to the Deputy Minister of Justice, Morris Rosenberg, the Commissioner stated that the department had not followed the recommendations made in the report dated November 27, 1997, and pointed out that the complainant was entitled to bring a remedy application under the provisions of Part X of the OLA.
[11] Throughout those proceedings, the Commissioner was in contact with and obtained information and documentation from both AJEFO and Justice Canada, and organized meetings with representatives of Justice Canada. Along with filing its complaints with the Commissioner, AJEFO also made other overtures to Justice Canada and the Government of Ontario.
[12] The Department of Justice went ahead with the CA without following the majority of the Commissioner's recommendations made in her report dated November 27, 1997. AJEFO then asked the Commissioner to bring this application under the OLA, which the Commissioner did on November 20, 1996.
CHRONOLOGY OF THE CA
[13] In 1992, Parliament enacted the CA, the purpose of which is to provide a simplified procedure for the prosecution of violations of federal statutes and regulations. The Act is flexible and allows a person who receives a ticket to pay a fine without having to appear in court. The Act allows an offender to avoid the stigma normally associated with a conviction for a federal offence, which include being denied a passport and having a criminal record.
[14] The Act was amended in 1996 to adapt it to the criminal justice system in each province and territory. Those amendments allowed the Government of Canada to make regulations enabling a province or territory to issue tickets and prosecute infractions under federal statutes and regulations under their own procedures.
[15] Section 65.1 allows the provincial or territorial language rights scheme to be substituted for the language rights scheme provided in the Criminal Code with respect to infractions under federal statutes.
[16] In 1996, the Minister of Justice made the Application of Provincial Laws Regulations under section 65.1 of the CA, giving certain provinces, and specifically Ontario, responsibility for prosecuting non-criminal federal infractions. Those regulations made the provincial laws of Ontario applicable, and specifically the Provincial Offences Act, R.S.O. 1990, c. P.33 and the Courts of Justice Act, R.S.O. 1990, c. C.43 in administering tickets issued in Ontario under the CA.
[17] Section 65.2 of the CA authorizes the Minister of Justice to enter into general agreements with a province, or specific provincial, municipal or local agreements, to specify the manner in which contraventions will be handled, and specifically in respect of the prosecution of contraventions and the discharge and enforcement of fines.
[18] Following the amendment to the CA, a draft general agreement with Ontario was prepared in which the federal government empowered the province of Ontario to carry out the prosecution of a large number of non-criminal federal infractions, and to handle the related administrative duties. The parties thought it preferable to test the procedures before signing the agreement.
[19] Under section 65.2 of the CA, Justice Canada entered into and signed two agreements: one with the City of Mississauga on June 9, 1997 (which was renewed on June 17, 1998, for one year) and one with the City of Ottawa on September 2, 1997.
APPLICANT'S ARGUMENT
[20] The applicant contends that the provisions of the Charter apply to the Government of Canada, and specifically to the Minister of Justice and Attorney General of Canada, and their Department. She points out that the OLA applies to the Department of Justice under section 3 of the OLA.
[21] She submits that by providing that the language rights set out in sections 530 and 530.1 of the Criminal Code no longer apply to federal contraventions where there is an agreement with a province or territory, the respondents have diminished or abrogated the language rights enjoyed by the Canadian public in dealing with a federal institution in a matter within the jurisdiction of Parliament. The measures set out in the body of the CA violate the letter and spirit of the Charter (sections 16 to 22) and of the OLA (Parts IV and VII).
[22] The applicant contends that the defendant has a duty to amend the measures set out in the provisions of the CA, in the regulations thereunder and in the other agreements signed pursuant to that Act, in order to restore a language rights scheme that is at least similar to the one that applied before section 30 of the CA was made inapplicable to federal contraventions.
[23] The applicant points out that section 25 of the OLA provides that institutions that are subject to the provisions of Part IV of the OLA have a duty to ensure, where services are provided by another person on their behalf, that those other persons offer services and are able to communicate with the public in either official language. The applicant contends that the Government of Ontario and Ontario municipalities are acting on behalf of the Government of Canada within the meaning of section 25 of the OLA when they prosecute and process federal offences under the CA. Consequently, under section 25 of the OLA, they must comply with the provisions of Part IV of the OLA with respect to services, communications and active offer (relations between the prosecutor and the public). However, it is true that this duty, under Part IV of the OLA, encompasses only communications and services peripheral to the trial, that is, the administrative, non-judicial aspects of prosecutions.
[24] The applicant notes that it is plain from section 65.3 of the CA that the federal government retains jurisdiction over prosecutions conducted by a province or municipality, and that those prosecutions are ultimately under its authority, since it may enter into agreements providing for the sharing of fines and fees collected in order to compensate the province or authority for administering the CA. This is therefore a service provided by the provinces or municipalities on behalf of the federal government. That interpretation is supported by clause 4 of the "Draft Agreement" between Justice Canada and the Government of Ontario, which provides: "Ontario shall at its expense provide the following services on behalf of Canada". In fact, the Hon. Anne McLellan stated in her letter of August 20, 1997 to AJEFO that section 65.3 of the CA provides for payment of compensation to the provinces for services that they provide on behalf of the federal government.
[25] The applicant asserts that the Ontario authorities that have entered into an agreement under the CA should ordinarily be subject to provisions that are comparable to those of Part XVII of the Criminal Code.
[26] The applicant contends that the respondents have, either directly or through the intermediary of another person acting on their behalf under section 25 of the OLA (and specifically when the Attorney General of Ontario or the municipalities prosecute offences under federal statutes in the place and stead of the Attorney General of Canada), violated their duties in respect of language under Part IV of the OLA in applying the CA, as amended, and the regulations thereunder, specifically the Application of Provincial Laws Regulations.
[27] The applicant notes that the respondents have provided no language guarantee in the CA or the regulations thereunder, or in the "Draft General Agreement" with the Government of Ontario, the specific agreements entered into with the City of Mississauga or the specific agreement entered into with the City of Ottawa, and that they failed to do so despite the recommendations made to that effect in the Commissioner's draft investigation report in August 1997 and reiterated in her final investigation report in November 1997.
[28] The applicant submits that the respondents could not merely rely on, and trust to, the legislation that applies to French language services in Ontario, which is limited to areas of the province that are designated bilingual and does not apply to municipalities, to remedy the omissions in the CA and in those agreements and to ensure that the public was able to obtain communications and services in both official languages from court clerks' offices and prosecutors' offices with respect to prosecutions.
[29] The applicant submits that the respondents have failed to comply with their commitments and duties in respect of language as set out in Part VII of the OLA, in that they have not provided for language rights similar to those guaranteed by Part XVII of the Criminal Code to be maintained, and they failed to consult the minority group and to consider the impact of these measures on the official language minority.
[30] The applicant notes that the respondents have provided no language guarantee relating to the actual judicial aspects of prosecutions in the "Draft General Agreement" with the Government of Ontario, and so it is the provincial legislation in this regard that must be applied. Although the Courts of Justice Act does provide for language rights that are more or less equivalent to those provided in the Criminal Code, that Act is not applicable in all cases in municipalities, and the Government of Ontario chose, in Bill 108, to empower municipal authorities precisely to institute this kind of prosecution.
[31] Moreover, there is no language guarantee provided in the Streamlining of Administration of Provincial Offences Act, 1998 for situations involving contraventions under that Act and future agreements between the Attorney General of Ontario and the municipalities in question.
[32] The applicant points out that the clause added to the agreement with the Cities of Mississauga and Ottawa is inadequate because it refers only to the language of counsel for the prosecution and not to all the language rights that are needed by an accused, such as those set out in the Criminal Code.
[33] The applicant submits that the province's undertaking to take measures to respect the spirit of the language principles set out in the Criminal Code is inadequate, first, because it refers only to the spirit of the principles in the Criminal Code and not to the letter of the Code, and second, because it does not provide that type of clause in the event that powers are delegated to the municipalities.
[34] The Commissioner submits that the solution lies not in language clauses negotiated on a case by case basis in individual agreements, but rather is achieved by adding a provision to the CA itself the aim of which is to set out the language rights that are applicable and to ensure that they are respected throughout Canada, in any agreement entered into by the Department with a province, territory or municipality under the CA.
[35] The Commissioner asserts that the conduct of the respondents, whether by act or by omission, infringes the provisions of the OLA and of the Charter, and specifically the principle that the two official languages have equality of status and equal rights and privileges as to their use. She submits that the CA creates an asymmetry in language rights, which vary by province or territory that undermines the equality of status and use of the two official languages and that did not exist when Part XVII of the Criminal Code applied to federal contraventions.
[36] The Commissioner is asking the Court for:
(a) a declaration that the respondents:
(i) have not complied with their duties under Part IV;
(ii) have not complied with their duties under Part VII;
(b) a declaration that Part IV of the OLA prevails over the CA and the regulations thereunder;
(c) a declaration that the respondents, by the measures taken in enacting and applying the CA, are, either directly or indirectly through third parties acting on their behalf, violating the statutory language rights in the OLA and the constitutional language rights in the Canadian Charter of Rights and Freedoms (the "Charter") with respect to the status and use of the two official languages;
(d) an order compelling the respondents, within such time as the Court shall determine:
(i) to take all necessary legislative, regulatory or other measures to ensure that the quasi-constitutional language rights of persons who are prosecuted for contraventions of federal statutes or regulations are respected by the third parties to which the federal government has delegated, by regulation or contract, the responsibility for administering the prosecution of federal contraventions on their behalf;
(ii) to ensure, in relation to present and future agreements negotiated pursuant to the OLA:
(A) that the language rights that are applicable under the Criminal Code and Part IV of the OLA are respected;
(B) that there is a mechanism for consultation with official language minority groups;
(C) that there is recourse to the Commissioner of Official Languages in the event of a violation of language rights;
(e) Costs.
AJEFO'S ARGUMENTS
[37] AJEFO argues that in this case the Court should interpret the duties that are incumbent on the respondents, both under the OLA and under the Charter, in such a way as to give full application to the spirit of the OLA and of sections 16 to 22 of the Charter, which is to advance the equality of status and use of the two official languages within Canadian society.
[38] AJEFO maintains that in circumstances where the provisions of the CA eliminate language guarantees and therefore erode the rights that have been acquired by the minority French-speaking community outside Quebec, it cannot be said that this Act complies with the concept of advancement and progress set out in section 16 of the Charter.
[39] AJEFO points out that the Streamlining of Administration of Provincial Offences Act, 1998 does not provide language guarantees for the Franco-Ontarian community. In addition, the Courts of Justice Act, which contains language rights similar to the rights provided in the Criminal Code, does not apply to municipalities.
[40] AJEFO maintains that the respondents' proposal to include an undertaking by the province, in agreements under the CA, that it will take measures to respect the spirit of the language guarantees provided in the Criminal Code and to ensure that any future agreement with a province, territory or municipality contains a clause of that nature is not consistent with the manner in which the Supreme Court has interpreted section 16 of the Charter.
[41] AJEFO is of the opinion that in circumstances where the language guarantees are not part of the agreements, the respondents are in violation of section 20 of the Charter.
[42] AJEFO contends that in the CA, the respondents have violated sections 16 and 20 of the Charter, by causing a loss of existing language rights. This violation of the Charter gives rise to a remedy or, in the alternative, makes the incompatible legislation inoperative. AJEFO contends that the remedies sought by the applicant and by AJEFO in this action are appropriate remedies in the circumstances.
RESPONDENTS' ARGUMENTS
[43] The respondents contend that the Commissioner and AJEFO do not have the necessary standing to argue that the provisions of the Charter or of Part VII of the OLA have been violated. In addition, in this application, this Court does not have the requisite jurisdiction to entertain any allegation that the provisions of the Charter or of Part VII of the OLA have been violated, or to award any remedy whatsoever for such violations.
[44] Neither paragraph 78(1)(a) of the OLA, under which the Commissioner brought this action, nor subsection 78(2), under which AJEFO appeared as a party, gives the Commissioner or a complainant sufficient standing to apply for the remedy for which Part X of the OLA provides.
[45] The respondents point out that this remedy is provided for, and is delineated precisely, in section 77 of the OLA. It may only be sought in respect of the duties and rights provided in sections 4 to 7 and 10 to 13, Parts IV and V, and section 91 of the OLA.
[46] In addition, the respondents submit that it is not within the jurisdiction conferred on this Court by Part X of the OLA to entertain any allegation that the provisions of the Charter or of the OLA have been violated or to award any remedy whatsoever in respect of any such violation.
[47] The respondents submit that the issue in this case is limited to whether the allegations made by the Commissioner and AJEFO, that the provisions of Part IV of the OLA have been violated by the respondents, are correct.
[48] In the alternative, the respondents submit that no language provision of the Charter has been violated by implementing the scheme provided by the CA in Ontario.
[49] The respondents argue that in this instance, the issue is the status, rights and privileges afforded to the French language in the courts established by the province of Ontario and in provincial and municipal administrative authorities in Ontario. Those institutions are neither institutions of Parliament nor institutions of the Government of Canada. Subsection 16(1) of the Charter therefore does not apply.
[50] The respondents point out that the language situation in Canada varies tremendously from one region to another. If some asymmetry were not allowed, federal authorities would be unable to implement supplementary language measures in regions where there is sufficient potential and more urgent needs, because of the difficulty of implementing such measures in regions where the minority official language population is less concentrated.
[51] The respondents suggest that subsection 16(3) of the Charter cannot operate to confer constitutional protection on Part XVII of the Criminal Code and prevent Parliament from amending the substance of that Part or the manner in which it is applied.
[52] With respect to section 20 of the Charter, which is essentially implemented by Part IV of the OLA, the same reasons also apply here: the duties set out in that Part have not been violated.
[53] With respect to Part VII of the OLA, the respondents maintain that the applicant and AJEFO do not have the necessary standing, as discussed supra. In the alternative, the respondents submit that they have not violated Part VII of the OLA.
[54] The respondents maintain that Part VII does not apply to Parliament. A consistent distinction has been made between Parliament and the federal government, or Government of Canada, in the OLA. When it was intended that a provision of the OLA apply to the institutions of Parliament and the institutions of the government, the concept of "federal institution", as defined in subsection 3(1) of the OLA to refer to the institutions of the Parliament and Government of Canada, has been consistently used. The words "federal government", which are used in section 41 of the OLA to delineate the scope of the commitment set out in Part VII, must be regarded as having been carefully chosen, and the effect of those words is to exclude Parliament from the scope of Part VII of the OLA.
[55] The respondents contend that nowhere in Part VII of the OLA is there any duty imposed on the federal government to always take those measures that most enhance the vitality and support the development of minority communities or best advance both official languages, or any duty to systematically hold public consultations. That commitment is essentially political in nature.
[56] The respondents argue that they considered all factors that they deemed to be relevant, including the commitment set out in Part VII. They decided to negotiate the incorporation of language clauses in the agreements to be entered into with other governments in order to coordinate federal, provincial and municipal services in both official languages in the realm of federal contraventions, in the spirit of section 45 of the OLA.
[57] The respondents point out that since the issue is the exercise of discretion, this Court should refrain from reviewing the advisability of making the regulations in question or of entering into an agreement, or from reviewing the content of the agreement.
[58] The respondents contend that there has been no violation of section 25 of the OLA because neither the Ontario Courts, the Attorney General of Ontario or his representatives, nor the City of Mississauga or the City of Ottawa or their representatives, are acting on behalf of the respondents.
[59] The respondents submit that a mere contractual relationship, delegation of authority, administrative arrangement or agreement, or formal agreement between a federal institution and another party is not in itself a sufficient basis for concluding that the other party is acting on behalf of the federal institution.
[60] In addition, the respondents argue that the provincial courts take their powers directly from the provincial enabling statute, and that there has been no agreement between those courts and the respondents, particularly in that the respondents have neither any duty nor any power under the CA to enter into such agreements with the provincial courts.
[61] With respect to municipal governments, the respondents point to the fact that when those governments issue tickets, and handle the processing and prosecution of those tickets, they are exercising their jurisdiction under the Act on their own behalf.
[62] In the alternative, the incorporation of language clauses in the agreements entered into with municipalities, and ultimately with other governments, is sufficient to establish compliance with section 25 of the OLA.
[63] Lastly, the respondents submit that some of the remedies sought are inappropriate. For example, a court may not order the government to establish programs, or compel the government to adopt certain policies.
ISSUES
[64] 1. Do the Commissioner of Official Languages and AJEFO have the necessary standing, and does this Court have sufficient jurisdiction, to allow for arguments based solely on the Charter and Part VII of the OLA to be made in this application?
2. What are the duties of the respondents in relation to sections 16 to 22 of the Charter?
3. Are the municipalities and the province of Ontario acting on behalf of the Attorney General of Canada within the meaning of section 25 of the OLA when they prosecute under the CA?
4. Have the respondents, the Attorney General of Ontario and the municipalities complied with the duties set out in Part IV of the OLA and the rights guaranteed in sections 16 to 20 of the Charter in enacting and applying the CA and in making and applying the regulations thereunder?
5. Have the respondents complied with the duties set out in Part VII of the OLA in enacting and applying the CA and making and applying the regulations thereunder?
6. Are the remedies sought by the Commissioner appropriate?
ANALYSIS
[65] This proceeding arises out of the enactment of section 65.1 of the CA.
65.1 (1) The Governor in Council may, for the purposes of this Act, make regulations making applicable, in respect of any contravention or any contravention of a prescribed class of contraventions, alleged to have been committed in or otherwise within the territorial jurisdiction of the courts of a province, laws of the province, as amended from time to time, relating to proceedings in respect of offences that are created by a law of the province, with such modifications as the circumstances require, and, without limiting the generality of the foregoing, the Governor in Council may make regulations
(a) adapting any provision or any part of a provision of those laws;
(b) deeming any of the notices or other documents issued or entered into under those laws to be a ticket for the purposes of this Act or any of its provisions;
(c) prescribing, for the purposes of subsection 65.3(2), categories of fees; and
(d) providing for any other matter in respect of the application of those laws.
65.1 (1) Pour l'application de la présente loi, le gouverneur en conseil peut, par règlement, prévoir que les lois d'une province -- avec leurs modifications successives -- en matière de poursuite des infractions provinciales s'appliquent, avec les adaptations nécessaires, aux contraventions ou aux contraventions d'une catégorie réglementaire qui auraient été commises sur le territoire, ou dans le ressort des tribunaux, de la province; il peut notamment, par règlement_:
a) adapter tout ou partie d'une disposition de ces lois;
b) assimiler les avis ou autres documents délivrés ou établis sous le régime de ces lois à un procès-verbal prévu par la présente loi ou une de ses dispositions;
c) établir, pour l'application du paragraphe 65.3(2), des catégories de frais;
d) prendre toute autre mesure d'application de ces lois.
[66] The Application of Provincial Laws Regulations, made under section 65.1 of the CA, provide:
1. The laws of a province referred to in the schedule apply, as amended from time to time, to the prosecution of contraventions designated under the Contraventions Regulations, to the extent and with the adaptations indicated in the schedule.
1. Les lois provinciales visées à l'annexe, avec leurs modifications successives, s'appliquent de la manière qui y est indiquée à la poursuite des contraventions prévues au Règlement sur les contraventions.
[67] Schedule 1 to the Regulations contains the provisions relating to the province of Ontario:
1. (1) Subject to subsections (2) and (3), the following enactments apply in respect of contraventions alleged to have been committed, on or after August 1, 1996, in Ontario or within the territorial jurisdiction of the courts of Ontario, namely,
(a) the Provincial Offences Act of Ontario, R.S.O. 1990, c. P.33, any regulations made under that Act and any Act of that province referred to in that Act relating to proceedings in respect of offences created by a law of that province; and
(b) the rules of court made under the Courts of Justice Act of Ontario, R.S.O. 1990, c. C.43.
2. (1) Subsections 12(1), 17(5) and 18.6(5) of the Provincial Offences Act of Ontario do not apply in respect of the prosecution of a contravention.
(2) For the purposes of Part II of the Provincial Offences Act of Ontario, contraventions related to the unlawful parking, standing or stopping of a vehicle, regardless of where in Ontario they were committed, are deemed to have been committed in a municipality designated by regulations made under that Part.
(3) For the purposes of any agreement entered into pursuant to subsections 65.2(2) and 65.3(1) of the Contraventions Act, section 18.6 of the Provincial Offences Act of Ontario and the regulations made under Part II of that Act shall be read as authorizing a municipality that has entered into such an agreement to collect fines in respect of contraventions related to the unlawful parking, standing or stopping of a vehicle.
1. (1) Sous réserve des paragraphes (2) et (3), les textes suivants s'appliquent aux contraventions qui auraient été commises, le 1er août 1996 ou après cette date, sur le territoire de la province d'Ontario ou dans le ressort des tribunaux de celle-ci, notamment:
a) la Loi sur les infractions provinciales de l'Ontario, L.R.O. 1990, ch. P.33, et ses règlements d'application, ainsi que toute loi de cette province qui y est mentionnée et qui vise la poursuite des infractions de cette province;
b) les règles de pratique prises en vertu de la Loi sur les tribunaux judiciaires de l'Ontario, L.R.O. 1990, ch. C.43.
2. (1) Les paragraphes 12(1), 17(5) et 18.6(5) de la Loi sur les infractions provinciales de l'Ontario ne s'appliquent pas à la poursuite des contraventions.
(2) Aux fins de la partie II de la Loi sur les infractions provinciales de l'Ontario, les contraventions liées au stationnement, à l'immobilisation ou à l'arrêt illégaux d'un véhicule, indépendamment de l'endroit où elles sont commises en Ontario, sont réputées avoir été commises dans une municipalité désignée par règlement en vertu de cette partie.
(3) Aux fins d'un accord conclu en vertu des paragraphes 65.2(2) et 65.3(1) de la Loi sur les contraventions, l'article 18.6 de la Loi sur les infractions provinciales de l'Ontario ainsi que les règlements pris en vertu de la partie II de cette loi sont réputés autoriser la municipalité qui a signé l'accord à recouvrer les amendes relatives aux contraventions liées au stationnement, à l'immobilisation ou à l'arrêt illégaux d'un véhicule.
[68] This case may be summarized as follows. By an oral agreement, the federal government delegated its powers under the CA to the Government of Ontario. In so doing, the federal government did not include a clause guaranteeing the language rights of offenders prosecuted under the CA. Formerly, language rights were protected by sections 530 and 530.1 of the Criminal Code and section 16 of the Charter, with respect to the "judicial" aspect of prosecutions, and by Part IV of the OLA and section 20 of the Charter, with respect to the "administrative" or "extra-judicial" aspect of prosecutions.
[69] The respondents submitted in evidence the affidavit of Jean-Pierre Baribeau, counsel with the Department of Justice. Mr. Baribeau explains, at paragraph 23 of his affidavit, that the reason why the agreement with the Government of Ontario did not specify protection for the language rights of francophones derived from the fact that, according to their information, those rights were already protected by the Courts of Justice Act.
[70] Thus, since the agreement delegating powers relating to prosecutions under the CA to the provincial government was signed, the laws that are applied with respect to language rights in Ontario are the Courts of Justice Act, which relates to the "judicial" aspects of prosecutions, and which provides for, inter alia, a bilingual trial (sections 125, 126), and the French Language Services Act, R.S.O. 1990, c. F.32, which relates to the "administrative" aspects of prosecutions.
[71] When Ontario enacted the Streamlining of Administration of Provincial Offences Act, 1988, it provided for certain powers deriving from the CA to be transferred to the municipalities. That Act does not provide for bilingual trials or trials in French, and not all Ontario municipalities are subject to the Courts of Justice Act. In addition, only the municipalities named in Schedule 1 to the French Language Services Act may be subject to that Act, and then only if the municipalities have passed a bylaw to that effect in accordance with subsection 14(1) of the French Language Services Act.
[72] A similar situation also arose when the federal government delegated its prosecutorial powers directly to the municipality of Mississauga, without including a clause to protect offenders' language rights. That agreement was subsequently amended to provide for the right to a prosecutor who speaks French and English when the trial is a bilingual trial under the Courts of Justice Act. The agreement between the federal government and the municipality of Ottawa included a clause identical to the clause added to the agreement between the federal government and the municipality of Mississauga.
[73] The applicant and the intervener are therefore of the view, first, that the language rights of an offender who was entitled to a trial in French under the Criminal Code, the OLA and the Charter would be significantly eroded in the provincial courts if the Courts of Justice Act were applied, even though the contravention fell within federal jurisdiction. The applicant and the intervener further submit that regardless of whether the delegating authority is the federal government or the provincial government, the municipalities are not necessarily subject to the obligations in respect of language to which the delegating authority was subject, whether in relation to "judicial" services or to "extra-judicial" services relating to prosecutions. These were the concerns that prompted the applicant to bring this application.
1. Do the Commissioner of Official Languages and AJEFO have the necessary standing, and does this Court have sufficient jurisdiction, to allow for arguments based solely on the Charter and Part VII of the OLA to be made in this application?
Part VII of the OLA
[74] Part X of the OLA is entitled "Court Remedy"; subsection 77(1) in that Part provides for a remedy for violation of the rights and duties set out in certain sections of the OLA. Subsection 77(1) provides:
77. (1) (1) Any person who has made a complaint to the Commissioner in respect of a right or duty under sections 4 to 7, sections 10 to 13 or Part IV or V, or in respect of section 91, may apply to the Court for a remedy under this Part.
77. Quiconque a saisi le Commissaire d'une plainte visant une obligation ou un droit prévus aux articles 4 à 7 et 10 à 13 ou aux parties IV ou V, ou fondée sur l'article 91 peut former un recours devant le tribunal sous le régime de la présente partie.
[75] In this case, however, the Commissioner herself applied for the remedy provided in section 77 of Part X of the OLA, as permitted by paragraph 78(1)(a), which provides as follows:
78.(1) The Commissioner may:
(a) within the time limits prescribed by paragraph 77(2)(a) or (b), apply to the Court for a remedy under this Part in relation to a complaint investigated by the Commissioner if the Commissioner has the consent of the complainant;
78.(1)Le commissaire peut selon le cas:
a) exercer lui-même le recours, dans les soixante jours qui suivent la communication au plaignant des conclusions de l'enquête ou des recommandations visées au paragraphe 64(2) ou dans le délai supérieur accordé au titre du paragraphe 77(2), si le plaignant y consent;
[76] It must be noted that subsection 77(1) of the OLA makes no reference to Part VII of the OLA, which is entitled "Advancement of English and French". This deliberate omission on the part of Parliament leads to the conclusion that subsection 77(1) does not allow for an application to be made to the courts for a violation of Part VII of the OLA.
[77] In Canada (Attorney General) v. Viola, [1991] 1 F.C. 373, the Federal Court of Appeal stated:
... the 1988 Official Languages Act does not create new jurisdictions other than those, vested in the Commissioner of Official Languages and