Part VI: OLA REVIEW: JUDICIAL BILINGUALISM (PROPOSED AMENDMENTS)

For a linguistic minority, the right to use their language at every stage of the judicial process is very important. In New Brunswick, this right is enshrined both in the Canadian Charter of Rights and Freedoms[1] and in the Official Languages Act[2].

A. Canadian Charter of Rights and Freedoms

Subsection 19(2) of the Charter provides that everyone has the right to use English or French in all cases before the courts of New Brunswick and in all proceedings arising from them.

However, this subsection was given a restrictive interpretation in Société des Acadiens. In that case, the Société des Acadiens du Nouveau-Brunswick (SANB) and the Association des conseillers scolaires francophones du Nouveau-Brunswick (ACSFNB) brought an action to obtain a judgment to prevent the Grand Falls English School Board from offering its French immersion programs to Francophone students. The Court of Queen's Bench of New Brunswick ruled in favour of the plaintiffs[3]. The decision was appealed and, before the Court of Appeal, the SANB and the ACSFNB requested that the case be heard by a panel of bilingual judges since part of the oral arguments would be in French. A panel of three judges, presided over by a judge who was not bilingual, was appointed to hear the appeal. The SANB and the ACSFNB were of the opinion that section 19 of the Charter had been violated and asked to be heard by a panel of judges who understood French, without the assistance of an interpreter.

The case was ultimately referred to the Supreme Court of Canada. The Court was called upon to interpret section 19 of the Charter for the first time. Beetz J., writing for the majority, concluded that the right conferred by this section belongs to the speaker, drafter or author of the pleadings and gives the speaker or drafter the power to speak or write in the official language of their choice. According to the majority of the Court, the drafters of the Charter would have expressed themselves differently if they had wanted to give the parties the right to be understood in the official language of their choice. They could, for example, have used the word "communicate" to confirm that the section granted the right to be understood in the language the party chose. According to the majority of the Court, "[t]he right to communicate in either language postulates the right to be heard or understood in either language."[4] Section 19, however, provides only for the right to "use" either official language and excludes the right to be understood in the language chosen!

Beetz J. concluded that if the right to use English or French in court includes the right to be heard and understood by the court, such recognition would lead to the constitutional requirement of bilingual courts[5]! In his view, "such a requirement would have far reaching consequences and would constitute a surprisingly roundabout and implicit way of amending the judicature provisions of the Constitution of Canada”[6].

In his dissent, Chief Justice Dickson, a unilingual English speaker, writes:

"What good is a right to use one's language if those to whom one speaks cannot understand? Though couched in individualistic terms, language rights, by their very nature, are intimately and profoundly social. We speak and write to communicate to others. In the courtroom, we speak to communicate to the judge or judges. It is fundamental, therefore, to any effective and coherent guarantee of language rights in the courtroom that the judge or judges understand, either directly or through other means, the language chosen by the individual coming before the court.”[7]

For her part, Wilson J., another unilingual Anglophone, in her dissenting reasons, is prepared to go even further:

“Accepting that the concept of bilingualism is relative and not absolute and that it must be related to function and purpose, I would conclude that the judge's level of comprehension must go beyond a mere literal understanding of the language used by counsel. It must be such that the full flavour of the argument can be appreciated. To the extent that this requires what Monnin C.J.M. describes as a comprehension of the nuances of the spoken word, I would agree with him that a judge must attain that level of sophistication in order to make the litigant's linguistic right meaningful in the context of the court's process.”[8]

In the MacDonald decision, Wilson J., in another dissenting opinion, had written:

"Austin was one of the early legal theorists who sought to break a right down into its constituent elements: see Austin on Jurisprudence (5th ed. by R. Campbell, 1885), vol. 1. He wrote at p. 284:

To every legal right, there are three distinct parties: namely, a party bearing the right; a party burthened with the relative duty; and a sovereign government setting the law through which the right and the duty are respectively conferred and imposed. A sovereign government cannot acquire rights through laws set by itself to its own subjects. A man is no more able to confer a right on himself, than he is able to impose on himself a law or duty. Every party bearing a right (divine, legal, or moral) has necessarily acquired the right through the might or power of another: that is to say, through a law and a duty (proper or improper) laid by that other party on a further and distinct party.”[9] (emphasis added)

Although the rule of interpretation of language rights set out in Société des Acadiens has since been reversed by the Supreme Court of Canada[10], the interpretation given of section 19 of the Charter has unfortunately not yet been set aside.[11] This interpretation remains relevant pending a new decision that would definitively overturn it.[12] Fortunately, the Official Languages Act has corrected this interpretative incongruity at the legislative level.

B. The Official Languages Act

1. Definition of the Term "Courts”

With respect to judicial bilingualism, it should be noted, first, that section 1 of the Official Languages Act defines the term "court" as meaning any court or administrative tribunal of the province. This very broad definition covers not only the judicial courts, but also all administrative tribunals such as arbitration tribunals governed by the Industrial Relations Act and the Arbitration Act[13], the Small Claims Court[14] and disciplinary tribunals or committees established by professional associations.

2. Official Languages of the Courts

Section 16 of the Official Languages Act declares English and French to be the official languages of the courts of the province.

Section 17 states that everyone has the right to use the official language of their choice in all matters before the courts, including all proceedings, pleadings and processes issuing from it.

Section 18 says that no person shall be disadvantaged by reason of a choice made under section 17. In Chiasson v. Chiasson, the Court of Appeal, referring to this provision, emphasized the importance of respecting the choice of official language made by the litigant:

"Judges ought to refrain from engaging in any conduct that might deter a person appearing or giving evidence in any proceeding before the court from being heard in the official language of his choice. In fact, it behooves judges to show the greatest of respect for that person's choice of official language. [15]."

3. The Court's Obligation

Section 19 was enacted as a counterbalance to the Société des Acadiens decision. It provides that a court hearing a case must understand the official language chosen under section 17, without the assistance of an interpreter, or consecutive interpretation, or any simultaneous translation technique.

The only decision that I am aware of that dealt with section 19 was Noble Securities Holding Limited v. Tremblay.[16] In this case, a default judgment was entered against the defendant. The defendant consequently retained counsel who brought a motion to set aside the default judgment. Mr. Tremblay's counsel wrote to the clerk of the court requesting that the judge appointed to hear the motion recuse himself because his client had decided to have the proceedings conducted in French. Counsel for the plaintiff then pointed out that the entire previous proceeding had been conducted in English and that Mr. Tremblay had even drafted his motion to set aside the default judgment and the affidavit in support of it in English. In his view, Mr. Tremblay had originally chosen to proceed in English and the court should not now allow him to choose the other official language.

This decision raised, among other things, an interesting question: who should determine whether the judge has a sufficient understanding of the official languages spoken at the hearing to be able to try the case? According to this decision, the answer to this question should be left to the judge hearing the case. Judge Rideout himself acknowledged that he did not have the necessary proficiency in French to hear the case without the assistance of an interpreter:

(Translation)"Although I am not bilingual, I do have some fluency in French. In the motion currently before the Court, I was able to read and understand the affidavit signed by Daniel Tremblay on September 7, 2006. In addition, I was able to understand the brief oral submissions of Mr. Tremblay's counsel, which were also in French. That said, I am not sufficiently fluent in French to hear a motion to set aside a default judgment in this rather complex case without the assistance of an interpreter to confirm certain aspects of Mr. Tremblay's argument."[17]

We can draw some conclusions from this decision. First, the principles set out in sections 16 to 19 of the Official Languages Act are mandatory and take precedence over a court order. Thus, the order assigning Justice Rideout to hear the motion could not override the obligation under section 19. Second, the right that these sections recognize is a fundamental right, not a procedural right. Third, these provisions do not specify a time limit, or even how the right is to be exercised. Thus, parties have an absolute right to use the language of their choice in a court proceeding, a right to which the parties have access at any time. It is true, however, that late exercise of this choice may cause delay, disruption, or prejudice to the other party. This was not the case in Noble Securities Holding, however, so the Court did not rule on these issues. We will have to wait for a similar scenario to see how the courts deal with these issues. In this regard, however, it is worth recalling what the Supreme Court of Canada said in Beaulac: in dealing with the issue of a late application under section 530 of the Criminal Code, Bastarache J. noted the following:

“Mere administrative inconvenience is not a relevant factor. The availability of court stenographers and court reporters, the workload of bilingual prosecutors or judges, the additional financial costs of rescheduling are not to be considered because the existence of language rights requires that the government comply with the provisions of the Act by maintaining a proper institutional infrastructure and providing services in both official languages on an equal basis. As mentioned earlier, in the context of institutional bilingualism, an application for service in the language of the official minority language group must not be treated as though there was one primary official language and a duty to accommodate with regard to the use of the other official language. The governing principle is that of the equality of both official languages."[18]

- Considering the foregoing, I believe it is necessary to provide in the OLA that a test be developed to assess the language skills of persons wishing to be appointed to the judiciary in New Brunswick.

4. Duty of Provincial Institutions in a Civil Action

Section 22 provides that if a court is seized of a civil action to which "Her Majesty in right of the Province or an institution is a party to civil proceedings before a court, Her Majesty or the institution concerned shall use, in any oral or written pleadings or any process issuing from a court, the official language chosen by the other party.” This gave rise to a judicial debate that ended up in the Supreme Court of Canada. At the heart of the debate was the question of whether the term "institution" used in section 22 includes municipalities in the province. The issue was decided by the Supreme Court of Canada in Charlebois v. Saint John (City).[19]

In a split decision (5-4 majority), the Supreme Court of Canada dismissed the appeal. The majority concluded that the Official Languages Act has two main structural features:

“1. The word “institution”, as defined in s. 1, acts as a central provision that identifies those public bodies on which the Legislature imposes particular language obligations in other provisions of the OLA. I will review those obligations shortly.

2. The OLA groups under various headings different areas of activity or services which fall under the purview of the public administration of the province and imposes specific language obligations under each heading. “Municipalities” is one such heading.”[20]

The majority acknowledged that it is plausible that Parliament intended to include municipalities in the definition of the term "institution".[21] However, they immediately added that sections 35 to 38 of the OLA impose specific linguistic obligations on municipalities. Therefore, to accept that municipalities are “institutions” for the purposes of section 22 would lead to inconsistent and illogical consequences.[22] And so, in this decision, the Supreme Court said that a municipality could choose to proceed in a language different from that used by the citizen in a court proceeding.

To correct the deficiency in the Official Languages Act highlighted by this decision and to restore some consistency to the law, I suggest that the following provision be added:

- In a civil case before a court to which Her Majesty in right of New Brunswick, an institution or a municipality designated under section 35[23] of the Act is a party, Her Majesty, the institution or the municipality shall use the official language chosen by the civil party in oral and written pleadings and in any pleadings arising from it.

5. Language of Court Decisions and Orders

Published court decisions are a vital working tool for legal practitioners. In a common law system such as New Brunswick's, the role of court decisions is just as essential as that of legislation, hence the importance of their translation. According to Karine McLaren:

(Translation) “While much has been written about the issue of legislative bilingualism in Canada, it is clear that the issue of translation of judicial decisions seems to have been relegated to the shadows in legal circles. Given the paramount importance of case law in Canada's legal system, it is striking that the issue has received so little attention to date.”[24]

New Brunswick's constitutional obligations with respect to judicial bilingualism arise from subsection 19(2) of the Charter, as I have already mentioned. I have also said that these language obligations have been given a much less generous interpretation by the courts than other language obligations.

It must be repeated: the logic of the Supreme Court in the 1986 trilogy was that the guaranteed rights belong not only to the parties, but also to witnesses, lawyers and even judges and other judicial officers.[25] Thus, just as the litigant has a constitutional right to speak in the language of their choice in court, so too does the judge have a constitutional right to write their reasons in the language of their choice. Moreover, the court is under no obligation to provide a translation of its judgment into the language of the litigant.[26]

However, the decision in Beaulac provides an opportunity for a new interpretation of section 19 of the Charter with respect to judicial bilingualism. This new interpretation would require the State, namely the province of New Brunswick, to take the necessary steps to ensure that judicial decisions, to name just a few, are made available in the official language of the recipients’ choice.[27] Thus, the right to receive judicial decisions in the official language of one's choice would no longer be just a statutory right recognized by the Official Languages Act, but, more importantly, would become a full constitutional right.

In the case of legislative provisions, section 24 of the Official Languages Act provides that final decisions or orders of the courts, including reasons and summaries, shall be published in both official languages: (1) it determines a question of law of interest or importance to the general public, or (2) the proceedings leading to its issuance were conducted in whole or in part in both official languages. The criterion of " interest or importance to the general public" is therefore of great importance in New Brunswick since the translation of court decisions depends on it.

It is interesting to note the difference between the New Brunswick provision and that in the federal Official Languages Act.[28] Subsection 20(1) of the federal Official Languages Act requires that final decisions, including reasons, be made available to the public in both official languages at the same time in two cases: (1) where the point of law at issue is of interest or importance to the public; and (2) where all or part of the proceedings were conducted in both official languages, or all or part of the pleadings were in both official languages. However, the "interest or importance to the public" test at the federal level relates only to the question of simultaneous publication, not translation.[29] The New Brunswick legislature, for its part, "carefully avoided mentioning simultaneity" in section 24(1).[30]

Yet, despite this "oversight" by the legislature, this is the practice followed by the New Brunswick Court of Appeal when it decided to apply the rule of simultaneity to its decisions[31].

The Court of Appeal considers that the obligation to publish its decisions simultaneously stems directly from the Official Languages Act. Yet, the New Brunswick Court of Appeal is the only court to issue its decisions simultaneously in both official languages. If its interpretation is correct, the other courts in the province should also be subject to the same obligation.

The New Brunswick Department of Justice has also not accepted this interpretation by the Court of Appeal. In a letter dated May 27, 2004 to the Commissioner of Official Languages, the Department argued that to meet the requirements of the Official Languages Act, it is sufficient to first publish in one language those final decisions that meet the criteria for publication in both official languages set out in subsection 24(1), and eventually publish a translation. According to the Department, this does not contravene section 24.

The Commissioner of Official Languages rejected this restrictive interpretation of section 24 and held that the only interpretation that ensures consistency between subsections 24(1) and 24(2) of the Official Languages Act is one that requires the simultaneous publication of court decisions in both official languages.[32] It is difficult to disagree with the Commissioner.

On October 14, 2003, to obtain answers to several questions concerning the publication and translation of judgments, the Association des juristes d'expression française du Nouveau-Brunswick (AJEFNB) filed a complaint with the Office of the Commissioner of Official Languages.[33] The AJEFNB argued, among others, that section 24 of the OLA was not being fully respected. In its view, only the New Brunswick Court of Appeal meets the requirements of that section since it is the only one to publish its decisions simultaneously in both official languages. The complaint thus revealed the glaring deficiencies in the implementation of section 24 by the Court of Queen's Bench and the Provincial Court.

We should remember that from 1985 to 2005, all decisions published in the New Brunswick Reports (NBR), issued under the authority of the Maritime Law Book, a private, for-profit corporation that produces decision books in all provinces except Quebec, were published in both official languages. As of 2005, only translations required by law are published in both official languages. However, some court decisions which are not translated were published in one language only, if Maritime Law Book felt that they would be useful to lawyers. What was seen as the norm from 1985 to 2005 became the exception starting in 2005, except for decisions of the New Brunswick Court of Appeal.

It is true that section 24 of the Official Languages Act does not specify who is responsible for selecting decisions to be published in both official languages. Moreover, to my knowledge, there are no guidelines within the Department of Justice or the courts themselves regarding the coordination and selection of decisions to be translated.[34]

The Commissioner agreed with the AJEFNB and concluded that: (Translation)"the manner in which final decisions and orders of the courts (except for decisions of the Court of Appeal) are published does not comply with the requirements of the OLA".[35] He added that the current regime, which provides for the eventual publication of decisions in both official languages in the NBR series, "falls far short of ensuring respect for the right to equal service in both official languages”.[36] The Commissioner therefore made three recommendations to the Department of Justice:

“- That the Department of Justice consult immediately with all stakeholders in order to create a policy for the translation and availability of final court decisions, orders or judgments that is in conformity with the OLA and its principles and that, once the consultation is complete, steps be taken immediately to enact the policy.

- That the Department of Justice take steps as soon as possible to ensure that all the decisions that appear in New Brunswick Reports (bound edition or other) be published in both official languages.

- That, if the Department does not agree with his interpretation of the term “publish,” that it take the necessary steps to have the matter referred to the New Brunswick Court of Appeal as soon as possible.”[37].

However, despite this report, it seems that the problem has not been resolved. In his 2007-2008 annual report, the Commissioner wrote:

"Twenty months have passed without a formal response from the Department of Justice. The Commissioner sent a letter to the Deputy Minister on February 1, 2008 requesting a status report on the implementation of his recommendations. Three weeks later, he received a letter from the Deputy Minister assuring him that his staff was in the process of gathering information about the issue and would contact the Commissioner to schedule a meeting. The Commissioner considers the fact that almost two years have passed since he sent his recommendations to be most frustrating; especially since no concrete action was taken by the Department, which represents a laissez-faire attitude towards language rights."[38]

On May 9, 2008, the Department of Justice responded to the Commissioner. In this letter, the Department rejected the conclusions reached by the Commissioner and indicated it believed it was respecting its obligations under section 24 of the OLA, adding that it had no intention of referring the matter to the New Brunswick Court of Appeal.[39]

Following this response, the Commissioner wrote:

"The Commissioner is discouraged not only by the position finally taken by the Department of Justice, but also by the fact that no details were provided of any analysis or work done by the Department in addressing the issues he raised in his report following the investigation into the matter. There appears to have been nothing done since the problem was first raised in 2003. For such an important issue to receive such little attention is disconcerting.”[40]

It was not until 2010 that a Working Group to examine the issue of publication and translation of court decisions was formed by the Department of Justice. The Task Force's report was finally filed in 2011. In the report, the Group expressed the view that the selection of decisions of interest or importance to the public and therefore deserving of simultaneous publication in both official languages should be left to the judge or author of the decision. The Group also recommends first establishing objective criteria to assist in the selection of these decisions and criteria that should be interpreted generously, and then developing a calendar to determine the time required for translation for the purposes of subsection 24(2) of the OLA.[41]

Ms. McLaren provided some details regarding the follow-up to the Working Group's recommendations:

(Translation) "According to the information we have obtained, the decision as to which judgments are selected for translation is now made by the Department of Justice (Office of the Attorney General). All court decisions selected for translation are forwarded to the provincial Translation Bureau. The Translation Bureau has established guidelines as to the deadlines to be applied to translation requests. These are simply calculated according to the number of words in the text to be translated. The Translation Bureau has recently implemented a tendering process that allows it to assign translations of court decisions to various suppliers that meet their requirements. With respect to the third recommendation of the Working Group, unfortunately we were unable to obtain information on whether objective criteria have been put in place to select judgments for translation. So there still seems to be some doubt about the matter[42] [emphasis added]."

I am not sure where this issue stands today because the stakeholders do not seem to be talking about it anymore. However, to avoid the inconsistency that seems to exist between the interpretation of sections 24 and 25, I suggest:

- That subsection 24(1) of the Official Languages Act of New Brunswick be amended to provide that both versions of final decisions - including the statement of reasons and summaries - be made available to the public simultaneously in both official languages: 1) if the point of law at issue is of interest or importance to the public; 2) where all or part of the proceedings were conducted in both official languages or where all or part of the pleadings were drafted in both official languages

- That the province's practice with respect to the translation of judgments, including decisions of administrative tribunals, be updated, taking into account the recommendations of the Commissioner of Official Languages in his June 2006 investigation report.

However, these recommendations will not solve everything, because there are other problems with section 24. Indeed, this section raises many questions regarding the interpretation of its French and English versions.

In order to understand the problem with this provision, I reproduce both the English and the French versions:

24 (1) Any final decision, order or judgment of any court, including any reasons given therefor and summaries, shall be published in both official languages where

(a) it determines a question of law of interest or importance to the general public, or

(b) the proceedings leading to its issuance were conducted in whole or in part in both official languages.

24 (1) Les décisions ou ordonnances définitives des tribunaux, exposés des motifs et sommaires compris, sont publiés dans les deux langues officielles

a) si le point de droit en litige présente de l’intérêt ou de l’importance pour le public; ou

b) lorsque les procédures se sont déroulées, en tout ou en partie, dans les deux langues officielles.

(2) Where a final decision, order or judgment is required to be published under subsection (1), but it is determined that to do so would result in a delay or injustice or hardship to a party to the proceedings, the decision, order or judgment, including any reasons given, shall be published in the first instance in one official language and, thereafter, at the earliest possible time, in the other official language.

(2) Dans les cas visés par le paragraphe (1) ou lorsque la publication d’une version bilingue entraînerait un retard qui serait préjudiciable à l’intérêt public ou qui causerait une injustice ou un inconvénient grave à une des parties au litige, la décision, exposé des motifs compris, est publiée d’abord dans l’une des langues officielles, puis dans les meilleurs délais, dans l’autre langue officielle.

In his excellent text, Gérard Snow pointed out the many ambiguities of this article. Among other things, he shows that the English and French versions of subsection 24(2) "diverge substantially".[43] He notes, first, that the French version states that the two-stage publication regime in section 24(2) would apply to all cases covered by section 24(1). If this is the case, he says, "then what is the point of the phrase ‘or where publication of a bilingual version would cause a delay'"(Translation)[44]. The problem, he contends, is the conjunction "or" which is in the French version only, after "in the cases referred to in subsection(1)".

I agree with Mr. Snow that the French version is flawed, and that the intent of Parliament is better expressed in the English version. As he points out, "Parliament must have intended to say: 'Where, in the circumstances referred to in subsection (1), the publication of a bilingual version would cause a delay ...'"[45].

Mr. Snow raises another ambiguity between the English and French versions of subsection 24(2). The English version contains the phrase "...but it is determined that to do so would result in a delay...", which has no equivalent in the French version. The English version thus suggests that a decision must be made by someone, though it does not specify who must make it.

Finally, as Mr. Snow points out, according to the English version, any delay would allow the exception system to be invoked ("Where a final decision, order or judgment is required to be published under subsection(1), but it is determined that to do so would result in a delay or injustice or hardship to a party to the proceedings [...]"). The exception system could be invoked, in the English version, in two cases: (1) where the production of the decision in both languages would cause a delay, or (2) where the delay would result in prejudice to the public interest or injustice or serious inconvenience to a party to the proceedings.

In the French version, the exception system can only be invoked if "the publication of a bilingual version would cause a delay that would be prejudicial to the public interest or would cause an injustice or a serious inconvenience to one of the parties to the litigation" [emphasis added]. It should be noted that the notion of public interest is totally absent from the English version. Mr. Snow rightly concludes that, in this case, it is the English version that is defective, since it allows the exception provided for in subsection (2) to be invoked in all cases, since the preparation of a text in two languages will always result in a delay.[46] (Emphasis added)

It should also be noted that sections 24, 25 and 26 of the OLA are inconsistent in their use of the French terms "décisions", "ordonnances" and "jugement" and the English equivalents "decision", "order" and "judgment".[47]

To illustrate this inconsistency, Mr. Snow prepared the following table [48]:

Provision

English Version

French Version

24(1)

Any final decision, order or judgment...

Les décisions ou ordonnances définitives…

24(2)

the decision, order or judgment...

la décision...

25

All decisions of the Court of Appeal...

Les décisions de la Cour d’appel...

26

the judgment...

la décision

As he points out, "it is arguable that the New Brunswick legislature, like its federal counterpart, did not really intend to draw distinctions between these concepts ... but, if so, it has done so in a curious way, for it has opened the door to potential arguments in favour of broadening or narrowing the scope of the various provisions”.[49]

- Given the vagueness surrounding sections 24, 25 and 26, I believe it is important that the current review of the Act be used to make the necessary corrections to these provisions.

6. Judicial Decisions and the Equal AuthorityRule

If, as we saw in Part V, the equal authority of the both language versions of a legislative text is recognized in New Brunswick particularly because of the constitutional obligation set out in subsection 18(2) of the Charter, what about judicial decisions rendered and published in both official languages by the courts?

All lawyers know that the law in the common law system is not limited to legislation. An important part of the law is found in the judicial decisions rendered by the courts. A lawyer who ignores judicial decisions cannot claim to know the law. Thus, in a bilingual judicial system, it is legitimate to ask whether problems interpreting bilingual texts also apply to interpretation of judicial decisions.

There is no constitutional obligation to publish judicial decisions in both official languages. As we have seen, there are provisions in the Official Languages Act that deal specifically with translation and publication of court decisions in both official languages, but they are silent as to the value to be given to each version.

Despite the existence of a statutory regime requiring the translation of certain decisions, there is no rule confirming the principle of the equal authority of the two versions of these decisions. Are we to conclude that only the original version is authoritative? If so, then what is the point of the translated version? If the two versions do not have the same value, does this not contravene the Official Languages Act, which states that no one shall be discriminated against on the basis of their choice of official language in a court proceeding?

However, it can happen that the two versions of a court decision do not say exactly the same thing. What should we do in such a case? Should we rely on the original version?

I repeat, the Charter, in subsection 18(2) recognizes the rule of equal authority as it relates to New Brunswick statutes. Whether this rule should also apply to judicial decisions has never been considered by the courts. Clearly, the obligation to publish decisions in the official languages differs from the obligation to publish legislative instruments in both languages, since the former originates in the Official Languages Act and the latter in a constitutional enactment. However, the source of the obligation should not influence the approach to be taken in interpreting decisions as long as the obligation to publish them in both languages exists.

With respect to the federal courts, Bastarache wrote:

(Translation)"The requirement that authoritative legal texts be equally accessible to those who speak English and French derives its importance from Canada's commitment to the equal value of these languages and their importance to personal development. Thus, it is our contention that, regardless of the method used to develop bilingual judgments and regardless of the applicable legislative framework, it is undeniable that the English and French versions of judgments of the Federal Court, the Federal Court of Appeal and, most importantly, the Supreme Court of Canada are equally authoritative.[50]

We can draw the same conclusion for decisions of New Brunswick courts, at least since the adoption of the Official Languages Act 2002. Not all decisions of New Brunswick courts are translated into both official languages. I believe, however, that both published versions constitute "the statutes" within the meaning of subsection 18(2) of the Charter. The unqualified recognition of the equality of the two official languages in New Brunswick implies that the decisions of the courts are not only available in both official languages, but that they are also of equal authority. I do not draw this conclusion only for decisions where it is impossible to determine which version is a translation. The principle of equal authority must apply to all translated decisions, even those where it is clearly indicated that one of the two is a translation. In my view, this must be the case, since any other approach would have the effect of favouring one language at the expense of the other, thereby denying the principle of equality underlying language rights and violating the Official Languages Act, which provides that no one shall be placed at a disadvantage before a tribunal by reason of their choice of official language.

Some will argue that the application of the equal authority rule to translated court decisions is inappropriate, will create uncertainty and will be impractical. I am of the view that a legal system that aims at equality between the two official languages cannot entertain such arguments, or else the public will always be left with the impression that there is a primary language, that of the majority, and a secondary one, that of the minority, in judicial matters.

The public might well ask why translate court decisions, if the authenticity of the translated version cannot be trusted. Why would students at the Université de Moncton's Faculté de droit bother to read the French translation of a decision if they know it has no legal value? What about unilingual English-speaking students at UNB faced with a decision rendered in French and then translated into English? Should they simply ignore that such a decision exists?

The fact that the translated version of a court decision is not necessarily equal in wording to the original version should not be considered sufficient grounds for setting aside the equal authority rule. This same issue also occurs with legislation where one version is a translation of the other, but this does not cause the rule to be set aside. The Supreme Court of Canada was faced with this problem in Doré v. Verdun (City)[51]. In that case, the Court rejected the argument that the English version of the Civil Code of Québec was ignored because it was a "mere translation". Instead, the Court concluded that the quality of the translated version had no bearing on the rule of equal authority and that any differences must be resolved by applying to the rules of interpretation. Why couldn’t a similar approach be applied in the case of judicial decisions? I recognize that the rules of statutory interpretation may not always be applicable to decisions, but there is nothing to prevent them from being adapted as necessary.

If languages and official language communities are equal in status, in law and in privilege, then litigants from either community should be able to receive equal treatment before the courts and should not be disadvantaged because of the official language they chose to use. The English-speaking legal community of New Brunswick would not accept, and rightly so, that important judicial decisions be rendered in French and their translation to English be an unofficial version on which it cannot rely. The English-speaking community would rightly consider this to be an obstacle to their right to fair access to justice. They would not accept that administrative or financial considerations would interfere with their rights. The same is true for the Francophone legal community. Equality of official languages means that both official language communities in the province must have access in their own language to judicial decisions that have the same legal authority and in which they can have confidence.

It is important to recognize that the real obstacle to the recognition of the principle of equal authority for both versions of court decisions is far more political than legal: it is the refusal of the participants in the judicial system to recognize that a bilingual regime requires respect for the principle of equality. They must abandon the notion that one language is predominant, and the other only entitled to accommodation. Otherwise, we will no longer be able to speak of a bilingual legal system, but rather of a "dualist" legal system in which the law may be different, depending on whether a law or decision is read in one official language or the other.

That is why I propose that:

- The Official Languages Act be amended to recognize that both language versions of court decisions or orders have equal force of law and equal standing.

Finally, allow me one further comment. I believe sincerely that the authors of the Barry-Bastarache Report (to which I referred in "Historical Overview of Language Rights in New Brunswick (Part 4)" in this blog) were right: to have a true regime of legal and judicial bilingualism in New Brunswick, all lawyers and judges practicing in the province must be bilingual.

I have often said to my students, how can you give a legal opinion on a contract if you only read half the text? Similarly, how can you be sure of your opinion if you can only read half of a statute and only one language version of a decision?

That is not a bilingual judicial system!

[1] Part 1, The Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter].

[2] Official Languages Act, SNB 2002, c O-0.5, art 16-26 [OLA].

[3] Société des Acadiens du N.-B. et al v. Minority Language School Board No. 50 (1983), 48 NBR (2d) 361, [1983] AN-B no 245 (QL).

[4] Société des Acadiens v. Association of Parents, [1986] 1 SCR 549 para 54.

[5] Ibid. para 70.

[6] Ibid. para 73.

[7] Ibid. para 25.

[8] Ibid. para 186.

[9] MacDonald v. Ville de Montréal, [1986] 1 SCR 460, para 153.

[10] See R. v. Beaulac, [1999] 1 SCR 768.

[11] Réaume, «The Demise of the Political Compromise Doctrine», supra note 26.

[12] Mark Power and Marc-André Roy, «De la possibilité d’être compris directement par les tribunaux canadiens, à l’oral comme à l’écrit, sans l’entremise de services d’interprétation ou de traduction» (2015) 45:2 RGD 403.

[13] RSNB 1973, c I-4 and RSNB 2014, c 100. See L.I.U.N.A., Local 900 v Fern-Co Building Concepts Inc (2010), 182 CLRBR (2d) 1 para 14.

[14] Chiasson v Chiasson (1999), 222 NBR (2d) 233, 94 ACWS (3d) 873 (CA) [Chiasson]. See also, MacFarlane v New Brunswick, 2004 NBQB 257, [2004] NBR (2d) (supp) no 38. In this case, the adjudicator at the Small Claims Court hearing did not understand French, the language chosen by Mr. MacFarlane in his originating document. The adjudicator felt that his language rights were respected by allowing him to "plead in French with the assistance of the court interpreter". According to Justice Robichaud of the Court of Queen's Bench, there is no doubt that the assignment of the case to an adjudicator who did not understand the official language chosen by Mr. MacFarlane infringed his rights under the OLANB, which was in force at the time. We are of the opinion that the same conclusion would apply today, particularly in light of sections 18 and 19 of the OLA.

[15] Chiasson, supra para 5.

[16] Noble Securities Holding Limited v. Tremblay, 2006 NBQB 340, 310 NBR (2d) 131 [Noble Securities].

[17] Ibid. para 3. Who should assess the language proficiency of judges in either language is a key question, which at present seems to be left to the judge's discretion. The case of R v. Chagnon provided an opportunity to examine the issue. In his appeal, Mr. Chagnon's counsel argued that he was unable to receive a trial in his language because of the judge's limited French language skills. Unfortunately, the Court of Appeal did not have to rule on this issue, as the Attorney General conceded the appeal: Chagnon v. R, 2016 NBCA 28.

[18] Beaulac, supra para 39.

[19] Charlebois v Saint John (City), 2005 SCC 74, [2005] 3 SCR 563 [Charlebois v. Saint John]. For a critique of this decision, see Michel Doucet and Mark Power, «Charlebois c Saint John (Ville): phare d’une régression en matière de droits linguistiques?» (2006) 8 RCLF 383 [Doucet et Power, «phare d’une régression»].

[20] Charlebois v. Saint John, supra note 82 para 16.

[21] Ibid. para 17.

[22] Ibid. para 19.

[23] Section 35 states: 35(1) A municipality whose official language minority population represents at least 20% of its total population is required to adopt and publish its by-laws in both official languages.

35(2) A city is required to adopt and publish its by-laws in both official languages irrespective of the percentage required under subsection (1).

[24] Karine McLaren, «La langue des décisions judiciaires Canada» (2015) 2 RDL 1, p 1 [McLaren].

[25] MacDonald, supra para 61.

[26] McLaren, supra p 6.

[27] Ibid. page 13.

[28] Official Languages Act (R.S.C., 1985, c. 31 (4th Supp.)).

[29] McLaren, supra note 123 p 19.

[30] Gérard Snow, «La publication des décisions de justice Nouveau-Brunswick et Canada» in Lynne Castonguay and Nicholas Kasirer, ed, Étudier et enseigner le droit: hier, aujourd’hui et demain – Études offertes à Jacques Vanderlinden, Cowansville (Qc), Yvon Blais, 2006 p 367 [Snow].

[31] Town of Caraquet et al v Minister of Health and Wellness, 2005 NBCA 34, 282 NBR (2d) 112 para 1.

[32] See Office of the Commissioner of Official Languages for New Brunswick, Investigation Report, File no. 2003-0103, Langue de publication des jugements – simultanéité – allégations de contravention à la Loi sur les langues officielles du Nouveau-Brunswick (June 2006), online : Association des juristes d’expression française du Nouveau-Brunswick <http://test.ajefnb.nb.ca/wp-content/uploads/2013/04/RapportCommissaireLanguesOfficiellesJuin2006.pdf>.

[33] Ibid.

[34] Ibid. p 23. According to the Report, the Department of Justice explained the absence of a policy or directive by saying that it had not received any statement from the Chief Justices regarding the publication of decisions, and that judges were free to render their decisions in both official languages, if they deemed it desirable to do so.

[35] Ibid. p 31.

[36] Ibid. pp 31-32.

[37] Ibid.

[38] Office of the Commissioner of Official Languages for New Brunswick, Annual Report 2007-2008 p 55.

[39] Ibid. p 56.

[40] Ibid.

[41] McLaren, supra p 33.

[42] Ibid.

[43] Snow, supra p 369.

[44] Ibid.

[45] Ibid.

[46] Ibid.

[47] By comparison, the federal Act uses the term "décision" alone in French and "decision, order or judgment" in English. Snow points out that, by expressing itself in this way, the federal legislator clearly implies that there is no need to distinguish between decisions, orders and judgments. Snow, supra p 371.

[48] Snow, Ibid. p 372.

[49] Ibid.

[50] M. Bastarache et al, Le droit de l’interprétation bilingue, Montréal, Lexis-Nexis, 2009 pp 119-20.

[51] Doré v Verdun (City), [1997] 2 SCR 862 para 25, 150 DLR (4th) 385.