Court decisions category glossary
Minority-language education rights
section 23 of the Canadian Charter of Rights and Freedoms (Charter)Footnote 1 gives parents belonging to English- and French-speaking minority communities the right to have their children educated in the minority language. In addition to this right, this section also guarantees these communities the right to educational facilities and the right to manage these facilities. It falls to the provinces and territories, which are responsible for education under the Constitution, to ensure the implementation of the minority-language education rights set out in this section.
The rights conferred by section 23 are both individual and collective. They are individual in the sense that they apply to parents belonging to one of the three categories of rights-holders:Footnote 2 persons whose first language learned and still understood is that of the minority in the province in which they reside, those who have received their primary school education in Canada in the minority language of the province in which they reside, and those who have a child who has received or is receiving primary or secondary school education in the minority language of the province in which they reside. The collective aspect lies in the purpose of the provision, which is to protect and preserve both official languages and their respective cultures throughout Canada.
Access to English-language education in Quebec
Access to English-language schools in Quebec is protected by section 23(1)b) and section 23(2) of the CharterFootnote 3. Sections 73(1) and (2) of the Charter of the French Language (CFL) grant the right to English-language education to a child:
- […] whose father or mother is a Canadian citizen and received elementary instruction in English in Canada, provided that that instruction constitutes the major part of the elementary instruction he or she received in Canada;
- […] whose father or mother is a Canadian citizen and who has received or is receiving elementary or secondary instruction in English in Canada, and the brothers and sisters of that child, provided that that instruction constitutes the major part of the elementary or secondary instruction received by the child in Canada. [Emphasis added]
Legislative and judicial bilingualism
The right to use either English or French before the courts is guaranteed by several constitutional instruments, including the Charter, the Constitution Act, 1867 and the Manitoba Act, 1870. Several provisions of federal and provincial statutes, such as the Criminal Code, Part III of the federal Official Languages Act (OLA) and the New Brunswick Official Languages Act (NBOLA) also ensure the bilingualism of federal and, in some cases, provincial judicial institutions.
The federal and provincial governments regulate various aspects of the use of official languages in the courts within their respective jurisdictions. The federal government is responsible for regulating the use of official languages in criminal proceedings and in federal courts. The provinces set the rules for the use of official languages in civil proceedings.
In criminal proceedings, the courts’ language obligations are set out in Part XVII of the Criminal Code. The provisions dealing with the language rights of the accused, namely sections 530 and 530.1, guarantee the right to speak and to be understood by a judge or a judge and jury in the official language of one’s choice. The purpose of these provisions is to "
provide equal access to the courts to accused persons speaking one of the official languages of Canada in order to assist official language minorities in preserving their cultural identity"Footnote 4. Section 530 provides for the right of the accused to apply for an order to have the trial conducted in his or her official language of choice, whereas section 530.1 describes the practical consequences of such an order. These rights were expanded and clarified by Parliament with the adoption of Bill C-13Footnote 5, which received royal assent on May 29, 2008. Section 530 previously provided that only accused who were representing themselves were to be advised, by the justice of the peace or provincial court judge they first appeared before, of the right to a trial in the official language of their choice. This section now requires all accused to be informed of this right. These provisions apply to all provincial courts that conduct criminal trials. It should be noted that, where the provinces or territories are authorized to handle federal offences, they act on behalf of the federal government and must therefore ensure respect of the language rights established in federal legislationFootnote 6.
The language obligations of federal courtsFootnote 7 derive from the Constitution and from the OLA. Section 19 of the Charter provides that "
[E]ither English or French may be used by any person in, or in any pleading in or process issuing from, any court established by Parliament."Footnote 8Part III of the OLA adds to this fundamental right by setting out certain institutional obligations to facilitate access to the federal courts in both official languages. These obligations are the following: to ensure that witnesses appearing before federal courts can be heard in the official language of their choice without suffering any detriment thereby; to offer simultaneous interpretation services at the request of any party; to ensure that the judge hearing a case understands the official language of the parties without the assistance of an interpreter;Footnote 9 and to publish decisions in both official languages simultaneously or at the earliest possible time. When a federal institution is a party to the proceedings, its counsel has the obligation to use the official language chosen by the civil party in its arguments and pleadings.
In addition to certain constitutional obligationsFootnote 10, the provinces and territories are responsible for regulating the use of official languages in civil proceedings.
Language rights and services to the public
Section 20 of the the Charter grants members of the public two fundamental rights: the right to receive services from federal institutions and the institutions of New Brunswick in either official language and the right to communicate with these institutions in either official language. While the obligations imposed on New Brunswick apply to all of the province’s institutions, wherever they may be, the obligations on federal institutions depend on certain criteria: whether the communication or service originates from the head or central office of the institution concerned, the office is located in an area where there is significant demand for the use of English or French or, because of its nature, the office is required to provide services in both official languages.
The rights granted under section 20(1) of the Charter and the obligations imposed on federal institutions are implemented and clarified in Part IV of the OLA. This part stipulates, among other things, that federal institutions must ensure that services provided to the public by third parties, on their behalf, are available in both official languages when the institution itself is subject to such a requirement. The OLA also requires federal institutions to make an active offer of service, informing members of the public that they have the option to be served in either English or French.
The Official Languages (Communications with and Services to the Public) Regulations clarify the situations in which communications and services must be offered in both official languages.
According to the principle of active offer, institutions that are required to provide services in both official languages must inform members of the public of their right to communicate and receive services in the official language of their choice. Section 28 of the OLA, as well as sections 28.1 and 31 of the New Brunswick Official Languages Act, expressly stipulate that an active offer must be made. This principle, the offer of a genuine choice between English and French, is an inherent part of the public’s right to use the official language of its choice in its communications with government institutions. Therefore, the right to receive services in the language of one’s choice includes the right to be informed of this choice.
The vitality and development of official language minority communities
Part VII of the OLA sets out the federal government’s commitment to enhancing the vitality of Anglophone and Francophone minorities in Canada and supporting and assisting their development, as well as to fostering the full recognition and use of both English and French in Canadian society. Amended in 2005, section 41 of the OLA states that federal institutions must take positive measures to ensure the implementation of this commitment. It reads as follows:
- 41. (1) The Government of Canada is committed to
- enhancing the vitality of the English and French linguistic minority communities in Canada and supporting and assisting their development; and
- fostering the full recognition and use of both English and French in Canadian society.
- (2) Every federal institution has the duty to ensure that positive measures are taken for the implementation of the commitments under subsection (1). For greater certainty, this implementation shall be carried out while respecting the jurisdiction and powers of the provinces.
- (3) The Governor in Council may make regulations in respect of federal institutions, other than the Senate, House of Commons, Library of Parliament, office of the Senate Ethics Officer or office of the Conflict of Interest and Ethics Commissioner, prescribing the manner in which any duties of those institutions under this Part are to be carried out.
As such, under section 41, every federal institution must take concrete measures to fulfill the commitment set out in Part VII. This part also applies to the federal government, which must implement proactive measures to enhance the vitality of official language minority communities and promote linguistic duality.
Language rights and proceedings of Parliament
Section 133 of the Constitution Act, 1867Footnote 11 and section 17(1) of the Charter guarantee everyone the right to use either official language in the debates and proceedings of Parliament. This right is further implemented by Part I of the OLA, making English and French the official languages of Parliament. This part of the OLA also provides for the simultaneous interpretation of debates or other proceedings of Parliament from one official language into the other. Furthermore, everything reported in official reports of debates or other proceedings of Parliament must be in the official language in which it was said, accompanied by a translation in the other official language.
These rights and duties, which are rarely the subject of court actions, are intended to give English and French equal rights and privileges as to their use in parliamentary proceedings, such as the debates of the House of Commons and Senate, and the work of their various committees.
Language rights in the federal Public Service
There are essentially three aspects to the language rights applicable within the federal Public Service, namely:
- the employees’ language of work;
- equitable participation of both language groups in federal institutions;
- the staffing and language designation of positions.
The first aspect is covered by Part V of the OLA, which specifies the language obligations imposed on federal institutions regarding employees working in prescribed bilingual regions. In particular, institutions must provide staff in these regions with both central and individual services as well as work instruments in both official languages. It also requires certain institutions providing central services to employees of other institutions to do so in both official languages.
The second aspect is covered by Part VI of the OLA. In particular, subsection 39(1) indicates the two aspects covered by this provision:
- equal opportunities for Francophone and Anglophone Canadians to obtain employment and advancement in federal institutions, without regard to their ethnic origins or first language learned; and
- equitable participation by both official language communities in these institutions, taking into account the special characteristics of their mandates, the public they serve and their location. Subsection 39(2) states that implementation of these aspects must take into account the duties which federal institutions must carry out under Part IV (Communication with and Service to the Public) and Part V (Language of Work) of the OLA. Finally, subsection 39(3) states that selection of personnel continues to be in accordance with the merit principle.
The third aspect is covered by section 91 of the OLA, which deals with the language requirements applicable to the staffing of positions in the federal public service. Thus, certain positions are designated as bilingual, whether imperative or not, and others are designated unilingual. The requirements must be objectively necessary for the performance of the functions in question.
- Footnote 1
Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11.
- Footnote 2
Reference re Public Schools Act (Man.), s. 79(3), (4) and (7),  1 S.C.R. 839 at para. 862.
- Footnote 3
S. 23(1)(a) of the Charter was never proclaimed in force in Quebec: see s. 59 of the Constitution Act, 1982, being Schedule B to the Canada Act, 1982 (U.K.), 1982, c. 11.
- Footnote 4
R. v Beaulac,  1 S.C.R. 768, at para. 34, citing Ford v Quebec (Attorney General),  2 S.C.R. 712 at para. 749.
- Footnote 5
Act to amend the Criminal Code (criminal procedure, language of the accused, sentencing and other amendments), 2nd Sess., 39th Parl., 2008.
- Footnote 6
Canada (Commissioner of Official Languages) v Canada (Minister of Justice), 2001 FCT 239.
- Footnote 7
Under s. 3(2) of the OLA, a federal court is "
any court, tribunal or other body that carries out adjudicative functions and is established by or pursuant to an Act of Parliament." This includes courts of law such as the Federal Courts of Canada and the Tax Court of Canada, as well as quasi-judicial administrative tribunals such as the Canadian Human Rights Tribunal and the Canadian Industrial Relations Board.
- Footnote 8
S. 19 of the Charter also applies to any court of New Brunswick.
- Footnote 9
This duty applies to all federal tribunals other than the Supreme Court of Canada: see s. 16 of the OLA.
- Footnote 10
S. 19 of the Charter (New Brunswick), s. 133 of the Constitution Act, 1867 (Quebec) and s. 23 of the Manitoba Act, 1870 (Manitoba).
- Footnote 11
30 & 31 Vict., c. 3 (U.K.), as reprinted in R.S.C. , 1985, Appendix II, No. 5.
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