Section 20 – Right for the public to communicate with and to receive services from federal institutions and New Brunswick institutions

Provision

Communications by public with federal institutions

20. (1) Any member of the public in Canada has the right to communicate with, and to receive available services from, any head or central office of an institution of the Parliament of Canada in English or French, and has the same right with respect to any other office of any such institution where

  1. there is a significant demand for communications with and services from that office in such language; or
  2. due to the nature of the office, it is reasonable that communications with and services from that office be available in both English and French.

Communications by public with New Brunswick institutions

(2) Any member of the public in New Brunswick has the right to communicate with, and to receive available services from, any office of an institution of the legislature or government of New Brunswick in English or French.

Similar provisions

Similar provisions are found in Part IV of the Official Languages Act of 1988. This Part, entitled “Communications with and services to the public”, sets out the duties of federal institutions in order to give full effect to the right of the public prescribed by subsection 20(1) of the Charter, and in certain circumstances, to complete and extend the scope of such right. Sections 27 to 41 of the 2002 Official Languages Act of New Brunswick also provide the public with rights to services and communications in both official languages.

Purpose

The purpose of subsection 20(1) of the Charter is to provide the public in Canada with the right to use English or French in communications with the head or central office of federal institutions or to receive services from them. The same rights apply to offices of federal institutions where there is a significant demand for communications with and services from that office in the minority language, or where it is reasonable that such services and communications be available due to the nature of the office.

Subsection 20(2) of the Charter provides that any member of the public in New Brunswick has the right to communicate with, and to receive available services from, any office of an institution of the legislature or government of New Brunswick in English or French, and, unlike the services provided by federal institutions under subsection 20(1) of the Charter, this right does not depend on the demand in the minority language or the nature of the office in question. This is complete institutional bilingualism, as citizens have the right to use the language of their choice at all times when requesting a service from or communicating with the provincial government (SAANB SCC 2008:(Société des Acadiens et Acadiennes du Nouveau-Brunswick v. Canada, 2005 FC 1172 [SAANB FC 2005];reversed by 2006 FCA 196; FCA decision reversed by 2008 SCC 15 [SAANB SCC 2008]) at paragraph 1).

Section 20, like other provisions that guarantee language rights, is not subject to the notwithstanding clause entrenched in section 33 of the Charter. This means that neither Parliament nor the legislature of New Brunswick can exclude itself from their application (Gaudet 2010 (R. v. Gaudet, 2010 NBQB 27) at paragraph 31).

Analysis

1. Scope of the right

(i) “Any member of the public in Canada has...” / “Any member of the public in New Brunswick has …”

Subsection 20(1) of the Charter delineates the geographic scope of the right set out therein: the provision states that the right is granted to members of the public in Canada. Accordingly, members of the public located elsewhere (without distinguishing nationality) are, it seems, not covered by these rights.

While section 21 of Part IV of the Official Languages Act reiterates the geographical limit in subsection 20(1) of the Charter, sections 22, 23, 24 and 25 of the Official Languages Act complete the constitutional provisions on this point and expand them by conferring expressly an extra-territorial dimension on the public’s right to communicate with and receive services from federal institutions in either official language. The other provisions of part IV of the Official Languages Act remain silent on the territorial dimension of the rights they provide.

Similarly, subsection 20(2) specifies the scope of the right created in the province of New Brunswick: “Any member of the public in New Brunswick has . . . / Le public a, au Nouveau-Brunswick . . .”. However, this territorial limitation does not appear in sections 27 and 28 of the 2002 Official Languages Act of New Brunswick.

(ii) “Institution of the Parliament or government of Canada” / “Institution of the legislature or government of New Brunswick”

Subsection 20(1) of the Charter applies to an “institution of the Parliament or government of Canada”. The same wording is used at subsection 16(1) of the Charter.

Subsection 20(2) of the Charter applies to an “Institution of the legislature or government of New Brunswick.” The same wording is used at subsection 16(2) of the Charter.

Specific reference to the institutions of New Brunswick in subsection 16(2) of the Charter confirms that provincial institutions are not an institution of Parliament or government of Canada within the meaning of subsection 16(1). Provincial courts are not institutions under subsection 16(1) (MacKenzie (R. v. MacKenzie, 2004 NSCA 10) at paragraphs 46 and 48).

The expression “institution of the Parliament or government” includes judicial bodies and courts (Société des Acadiens (Société des Acadiens du Nouveau-Brunswick Inc. v. Association of Parents for Fairness in Education, [1986] 1 S.C.R. 549) at paragraph 21).

The Royal Canadian Mounted Police remains a federal institution subject to subsection 20(1) of the Charter while providing services on behalf of a province (Doucet 2003 at paragraphs 32; SAANB CSC 2008 at paragraph 14; Evenson (Evenson v. Saskatchewan (Ministry of Justice), 2013 SKQB 296) at paragraph 31). However, since each RCMP member is authorized by the New Brunswick legislature to administer justice in the province, he or she performs the role of an “institution of the legislature or government” of New Brunswick and must comply with subsection 20(2) of the Charter (SAANB SCC 2008 at paragraphs 16 and 19).

The same holds true for police forces governed directly by the province or municipalities of New Brunswick (Gautreau (R. v. Gautreau, 101 N.B.R. (2d) 1 (Q.B.)) at paragraphs 47-49; Bastarache (R. v. Bastarache, 128 N.B.R. (2d) 217 (N.B.Q.B)) at paragraph 20; Haché (R. v. Haché, 139 N.B.R. (2d) 81 (C.A)) at paragraphs 15 and 57; SAANB FC 2005 at paragraph 38; Moncton (Charlebois v. Mowat and the City of Moncton, 2001 NBCA 117) at paragraphs 104-105).

(iii) Rights holders

Section 20 of the Charter guarantees the right of the public in Canada and New Brunswick. The right applies to both individuals and corporations (Brewer at paragraph 26). Although section 20 circumscribes its geographic scope (see above), it makes no distinction based on nationality.

(iv) Nature of the right

Section 20 of the Charter identifies two rights: (1) the right to communicate with, and (2) the right to receive services from certain institutions in English or French (Gaudet 2010 at paragraph 23). In Norton, the Federal Court held that the concept of public “services”, which is also guaranteed by section 20 of the Charter, is broader than the term “communications” (Norton, (Norton v. Via Rail Canada, 2009 FC 704) at paragraph 76).

The Supreme Court of Canada states that the right to communicate in either official language as prescribed by section 20 of the Charter also implies the right to be heard or understood in either language, which is not the case for the rights provided by section 133 of the Constitution Act 1867 and subsection 19(2) of the Charter (Société des Acadiens at paragraph 54, see also Norton at paragraph 76). In Knopf, the Federal Court of Appeal concludes that the term “to communicate” presupposes interactions, bilateral actions between the parties (the term “to use” at section 133 of the Constitution Act 1867 and at section 17 of the Charter do not encompass such interaction) (Knopf (Knopf v. Canada (House of Commons) 2007 FCA 308) at paragraphs 38-40).

Section 20 does not allow a service to be demanded that the government does not provide, whether in English or French (Tucker at paragraph 8, Tucker v. Supreme Court of Canada [1992] F.C.J. No. 1116 (F.C.)).

Subsection 20(1) and Part IV of the Official Languages Act include the constitutional obligation to make services “of equal quality in both official languages” available to the public. (Caldech-Desrochers, (Desrochers v. Canada (Industry), 2009 SCC 8) at paragraph 3) Even though subsection 20(1) of the Charter and Part IV of the Official Languages Act involve a guarantee in relation to the services provided, it is not entirely accurate to say that linguistic equality in the provision of services cannot include access to services with distinct content. Depending on the nature of the service in question, it is possible that substantive equality will not result from the development and implementation of identical services for each language community. The content of the principle of linguistic equality in government services is not necessarily uniform. It must be defined in light of the nature and purpose of the service in question. What matters is that the services provided be of equal quality in both languages. The analysis is necessarily comparative (Caldech-Desrochers at paragraphs 51 and 53).

Where a significant demand is established under subsection 20(1) of the Charter, it is clear that the government has a duty to act (Doucet 2004 (Doucet v. Canada (Her Majesty the Queen and the Royal Canadian Mounted Police), [2005] F.C.R. 671, 2004 FC 1444 (F.C.)) at paragraph 25).

In the context of communication by an Royal Canadian Mounted Police officer during a roadside check stop, the Federal Court held that the fact that a unilingual English-speaking officer made arrangements for a member of the public to communicate via radio to a member who is capable of speaking French is by no means sufficient for the Royal Canadian Mounted Police to fulfill its obligations under the Charter and the Official Languages Act so that any member of the public can communicate with a federal institution in the official language of his or her choice. Motorists should not have to go out of their way or use a telephone or radio when they want to address a member of the RCMP in French (Doucet 2004 at paragraphs 43 and 79).

In Tailleur, the federal court concludes that the fact that members of one official language community might wait more than the other official language community in order to obtain a service from a federal institution through a telephone line does not comply with the constitutional obligation to make services of equal quality in both official languages available to the public (Tailleur (Tailleur v. Attorney General of Canada, 2015 CF 1230) at paragraph 106).

See also, in the context of Via Rail employees communicating with travellers, Norton that stated that simultaneous or consecutive translation is impractical in the case of oral communication, and diminishes the quality of service. Therefore, the opportunity to be served in the official language of one’s choice in the cases contemplated by the law can only be assured by the presence of bilingual personnel (Norton, (Norton v. Via Rail Canada, 2009 FC 704) at paragraph 76).

However, in Thompson, the Federal Court interpreted the scope of section 20 in the context of the disclosure to an individual of already existing notes (inserted by the immigration officer in the individual’s file). The Court found that it is implied in section 20 that where applicable, government institutions must provide communications within a “reasonable” time of the request for the provision of the communication in a particular official language or, put another way, within a time that results in no prejudice to the individual seeking the communication in a specific language (Thompson (Thompson v. Canada (Citizenship and Immigration), 2009 FC 867) at paragraph 8; in that case, the notes had been translated from French to English, to respect the individual’s choice of language; see also Musa (Musa v. Canada (Citizenship and Immigration), 2012 FC 298) at paragraphs 13-15).

Section 20 of the Charter does not inhibit federal institutions to offer services in languages other than English or French if the members of the public involved do not wish to exercise their right under subsection 20(1) of the Charter, and, indeed, wish to conduct business in any other language in which the institution’s officials are capable of reliably communicating without an interpreter (Abbasi, (Abbasi v. Canada (Department of Citizenship and Immigration), 2010 FC 288) at paragraph 16. In addition, subsection 83(2) of the Official Languages Act provides that nothing in the Official Languages Act shall be interpreted in a manner that is inconsistent with the preservation and enhancement of languages other than English or French.

(v) The concept of active offer

Section 28 of the Official Languages Act and section 28.1 of the 2002 Official Languages Act of New Brunswick state that institutions must ensure that there is an active offer in both official languages, when applicable. In addition, subsection 31(1) of the 2002 Official Languages Act of New Brunswick states that members of the public have the right, when communicating with a peace officer, to receive service in the official language of their choice and must be informed of that right.” Subsection 31(2) of the 2002 Official Languages Act of New Brunswick is to the effect that if a peace officer is unable to provide service in the language chosen by the member of the public, the peace officer shall take whatever measures are necessary, within a reasonable time, to ensure compliance with the choice made by the member of the public.

The question of whether active offer under section 28 of the Official Languages Act is the expression of a constitutional obligation arising out of subsection 20(1) (for the federal government) of the Charter has not yet been completely resolved. In Doucet 2003, the Supreme Court of Nova-Scotia concluded that subsection 20(1) of the Charter does not require that Royal Canadian Mounted Police officers patrolling in the province actively inquire whether defendants wish to be served in one or the other official language (Doucet 2003 at paragraph 36).

That question, however, has been discussed by the New Brunswick courts in relation to subsection 20(2) of the Charter and section 31 of the 2002 Official Languages Act of New Brunswick. At first, the decisions were quite a contrast (see in particular: Gaudet 2009 at paragraph 23, Robichaud, at paragraphs 19 and 25-32; Robinson at paragraphs 21-22; Haché at paragraphs 46 and 58; McGraw 2007 at paragraph 22; Gaudet 2010 at paragraph 41; Losier 2010, Losier 2011, Furlotte, Robichaud 2011 at paragraphs 22, 31, 39-41).

The question has now been resolved at the provincial level by the New Brunswick Court of Appeal in 2011 in the Losier decision. In that decision, the Court found that the police officer who stopped the respondent while conducting a spot check program was under a duty to comply with the obligations under subsection 20(2) of the Charter (Losier CA 2011 at paragraph 9). The Court adopted the findings of the Provincial Court (Losier 2010) and the Court of Queen’s Bench (Losier 2011), which had both determined that the absence of an active offer of service in both official languages on the part of the peace officer and the violation of these language rights amounted not only to a violation of subsection 31(1) of the 2002 Official Languages Act of New Brunswick but also to a violation of subsection 20(2) of the Charter, which opened the way to remedial action under subsection 24(2) of the Charter (Losier CA 2011 at paragraph 8, Losier 2011 at paragraphs 21, 28, 29). The Court of Appeal also validated the lower courts’ decision to exclude the evidence gathered following the Charter violation, which led to the acquittal of Mr. Losier (Losier CA 2011 at paragraph 12).

In subsequent decisions, the Court of Appeal’s conclusions on active offer were applied, but, contrary to Losier, the exclusion of evidence was refused in the circumstances (see Savoie at paragraph 71; Landry at paragraph 38; Thériault at paragraph 36; Robichaud 2012 at paragraph 29; Robinson 2014 at paragraphs 57, 67; Soh at paragraph 81; Lavoie at paragraph 39).

An active offer is a greeting that informs the member of the public that they may communicate in either French or English. Its purpose is to ensure that an individual feels comfortable requesting a service. It is a sign of respect. An active offer can take the form of a sign, a personal greeting or a message (FFT, (Fédération franco-ténoise v. Canada (Attorney General), 2008 NWTCA 6) at paragraph 139).

Interestingly, in the Thériault decision, the New Brunswick Court of Queen’s Bench affirmed the decision of the lower court, which had determined that a peace officer who stops a member of the public and says “Hello-Bonjour” without saying anything further is not complying with the active offer duty in subsection 31(1) of the 2002 Official Languages Act of New Brunswick or with subsection 20(2) of the Charter (Thériault, (R. v. Thériault, 2012 NBQB 184) at paragraph 13; see also McGraw, (McGraw v. R., 2012 NBQB 358) 2012 at paragraph 28).

(vi) The concepts of significant demand and nature of the office

The concepts of significant demand and nature of the office found at subsection 20(1) of the Charter are defined and implemented by part IV of the Official Languages Act and the Official Languages (Communications with and Services to the Public) Regulations, SOR/92-48 (the Regulations).

In Norton, the Federal Court stated that the Regulations provided greater certainty and uniformity in the application of the concepts found at subsection 20(1) of the Charter and Part IV of the Official Languages Act, but they are not exhaustive and should not be rigidly interpreted and applied. The Federal Court added that the Regulations cannot supersede or restrain the Official Languages Act or the Charter. They must always be interpreted and applied in a manner consistent with the general objectives of the preamble of the O Official Languages Act and a recognition of the fundamental values of the Charter and Canadian policy in the matter of bilingualism (Norton at paragraph 98, see also Doucet 2004 at paragraph 49).

(vii) Limits to the government’s choice of service delivery model

The power of the government to authorize the authorities of another jurisdiction to deliver services for which it is responsible appears to be subject to certain limits.

For example, the Federal Court examined the case of communications with the public and the delivery of extrajudicial services in relation to the administration of prosecutions for federal contraventions. These services had been previously provided by the Department of Justice in accordance with section 20 of the Charter and Part IV of the Official Languages Act. The Court stated that the definition of a new legislative framework providing for the application of provincial law must comply with the applicable language rights. More specifically, it determined that the successive and cumulative application of the Contravention Act, the French Language Services Act of Ontario and the agreements between the Attorney General of a province and municipalities does not make section 20 of the Charter or Part IV of the Official Languages Act inoperative. Those provisions must continue to apply and, in the event of conflict with the provincial statute, precedence must be given to the Official Languages Act and section 20 of the Charter (Commissioner of Official Languages, (Canada (Commissioner of Official Languages) v. Canada (Department of Justice) (2001), FCTD 239) at paragraphs 148-149).

A government may not adopt policies that would, as a result of agreements entered into, hinder the protection of guaranteed rights (SAANB SCC 2008 at paragraph 17).

(viii) Services provided by another person or organization on behalf of institutions

Section 25 of the Official Languages Act provides for cases in which communications and services provided by another person or organization on behalf of a federal institution must be made available in both official languages. This section states that where the federal institution responsible for the communications and services would be required to provide them in either official language if it provided them directly, that institution must ensure that the other person or organization “acting on its behalf” provides them under the same conditions. A similar provision is found at section 30 of the 2002 Official Languages Act of New Brunswick.

In SAANB CSC 2005, the Supreme Court of Canada cited with approbation the federal Court decision in Commissioner of Official Languages, to the effect that section 25 of the Official Languages Act confirms the constitutional principle that a government may not divest itself of the constitutional obligations imposed on it by the Charter by delegating certain of its responsibilities (Commissioner of Official Languages at paragraph 116, SAANB SCC 2008 at paragraph 17).

(ix) Distinction between section 19 and section 20 of the Charter

Disclosure of evidence and summonses to appear in court proceedings are not covered by subsection 20(1) of the Charter or Part IV of the Official Languages Act and the Regulations because the very structure of sections 16 to 20 of the Charter shows that each of these sections governs a separate and distinct area of Parliamentary, governmental and judicial activities. Everything suggests that Parliament was conscious of the distinction between language rights and the right to a fair trial, and between the use of one’s official language in pleadings, on the one hand, and communications with government offices under subsection 20(1) of the Charter, on the other. (Charlebois SCC 2005 at paragraph 54, Bastarache J. dissenting, but on another point, see also Société des Acadiens aux paragraphs 52, 53).

Subsection 20(1) of the Charter and Part IV of the Official Languages Act and its regulations do not require that the disclosure of evidence within a criminal trial be done in the official language of the accused. However, the oral and written communications of the Office of the Department of Justice outside judicial proceedings must take place in the official language of choice of the accused or his or her lawyer (Rodrigue, (R. v. Rodrigue, [1994] Y.J. No. 113 (QL) (Y.S.C.), 1994 CanLII 5249 (Y.S.C.)) at paragraph 28).

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