The Alberta Languages Act recognizes a right to use French in certain courts, including courts of criminal jurisdiction. Subsection 4(1) of the Act provides: “Any person may use English or French in oral communication in proceedings before the following courts: the Court of Appeal of Alberta; the Court of Queen’s Bench of Alberta; The Surrogate Court of Alberta; The Provincial Court of Alberta”. However, that right is limited to oral communication.
In British Columbia, there are no statutory provisions recognizing the right to use French in the courts. There is a general provision in the province’s Rules of Procedure establishing that all documents shall be prepared in the English language. That provision would not apply to the courts of criminal jurisdiction, since it is contrary to the provisions of the Criminal Code.
Section 23 of the Manitoba Act, 1870, which is the source of language rights in the courts, is a specific manifestation of the general right that Franco-Manitobans have to speak their own language. In order to meet its obligations, the Government of Manitoba has adopted a French Language Services Policy which provides that “the services provided by the Government of Manitoba are offered, to the extent possible, in both official languages in areas where the French-speaking population is concentrated”. A similar approach has been proposed in respect of the judicial system.
New Brunswick is one of the three provinces that have constitutional language obligations. In addition, the Canadian Charter of Rights and Freedoms contains the following provisions:
16(2) English and French are the official languages of New Brunswick and have equality of status and equal rights and privileges as to their use in all institutions of the legislature and government of New Brunswick. 16.1(1) The English linguistic community and the French linguistic community in New Brunswick have equality of status and equal rights and privileges, including the right to distinct educational institutions and such distinct cultural institutions as are necessary for the preservation and promotion of those communities. 16.1(2) The role of the legislature and government of New Brunswick to preserve and promote the status, rights and privileges referred to in subsection (1) is affirmed. 19(2) Either English or French may be used by any person in, or any pleading in or process issuing from, any court of New Brunswick
New Brunswick has not made regulations under section 533 of the Criminal CodeHowever, because of its constitutional and statutory obligations, judges and court staff who speak the official language of the accused should normally be available for all preliminary inquiries and all trials. In addition, the provision for active offer in section 530 should be the norm.
Newfoundland and Labrador
With the exception of section 530 of the Criminal Code, there are no specific statutory provisions that apply to language in the province of Newfoundland and Labrador.
In 1994, a Special Committee of the Canadian Bar Association – Nova Scotia Branch made a number of recommendations regarding access to justice in the language of the francophone minority of Nova Scotia. It noted that legal services in French were available in the Small Claims Court, the Family Court and the Probate Court, and at the Residential Tenancies Board. The Committee also learned that instruments could be registered in French and wills written in French could be probated (although in those cases a translation of the documents had to be included for registering on title and for probating wills), and that a number of bilingual employees were available to individuals seeking information at the courthouses.
Nova Scotia has not yet made regulations under section 533 of the Criminal CodeHowever, the right to a trial in the official language of the accused’s choice has been raised, in R. v. Deveaux. In that case, the Supreme Court of Nova Scotia had to consider the question of whether a judge of the Provincial Court had an obligation to inform an accused who was unrepresented by counsel of his right to have his trial proceed in the official language of his choice. Edwards J. considered the decision of the Supreme Court in Beaulac and concluded that the judge of the Provincial Court had no choice but to inform the accused of his rights under section 530. The failure of the judge to provide that information at trial was therefore a violation of the rights of the accused. In that case, the Court ordered a new trial.
The first version of section 110 was enacted in 1877. It provided that every person could use French or English in the courts. The later version of that section was enacted in 1886. In addition to the fact that it reiterated the free choice of language in the courts, it allowed the Territorial Assembly to “regulate its proceedings, and the manner of recording and publishing the same”.
Section 19 of the Northwest Territories Official Languages Act provides that either English or French may be used by any person in, or in any pleading in or process issuing from, any court established by the Legislature.
The first version of section 110 of the North-West Territories Act was enacted in 1877. Under that section, every person could use French or English in the courts. The version of section 110 as it was subsequently known was enacted in 1886. In addition to the fact that it reiterated the free choice as to language in the courts, it allowed the Territorial Assembly to “regulate its proceedings, and the manner of recording and publishing the same”.
Section 19 of the Northwest Territories Official Languages Act provides that either English or French may be used by any person in, or in any pleading in or process issuing from, any court established by the Territorial Legislature.
Under section 29 of the Nunavut Act, section 110 of the North-West Territories Act (1886), which provides that French and English may be used in the courts, and section 43.1 of Part II.1 of the Northwest Territories Act (1985), which provides that French and English are the official languages, are incorporated into the law of Nunavut.
The Courts of Justice Act provides that the official languages of the courts of Ontario are English and French and that hearings shall be conducted in English or as a bilingual proceeding. This essentially means that a party to a proceeding has the right to have a bilingual judge, and the right to present testimony and make submissions in French. In addition, a party has a right to a bilingual jury and the right to file documents written in French in the following regions:
– The following counties: – Essex – Kent – Middlesex – Prescott and Russell – Renfrew – Simcoe – Stormont, Dundas and Glengarry – The following territorial districts: – Algoma – Cochrane – Kenora – Nipissing – Sudbury – Thunder Bay – Timiskaming – The area of the County of Welland as it existed on December 31, 1969. – The Regional Municipality of Hamilton-Wentworth. – The Regional Municipality of Ottawa-Carleton. – The Regional Municipality of Peel. – The Regional Municipality of Sudbury. – The City of Toronto.
Ontario Regulation 53/01, which was made under the Courts of Justice Act and has been in force since June 1, 2001, protects the right to bilingual proceedings in four ways:
– filing a requisition – making an oral statement to the court – filing a written statement with the court – filing the first document in a proceeding in French
In addition, the French Language Services Act guarantees services in French and protects the right to use French in the Legislature, any head or central office of a government agency, and regional government offices in certain designated areas. However, those obligations are subject to such limits as circumstances make reasonable and necessary. The Franco-Ontarian Emblem Act, 2001 recognizes the Franco-Ontarian Flag as the emblem of the Ontario French-speaking community.
Prince Edward Island
The Prince Edward Island French Language Services Act refers to the Canadian Constitution, and specifically to the Canadian Charter of Rights and Freedoms, and states that the Government of Prince Edward Island recognizes that French is one of the two official languages of Canada.
The purpose of the French Language Services Act is stated in section 2. It defines the parameters for the use of French in the Legislative Assembly; it specifies the scope of the services provided in French by the government institutions defined in section 1 of the Act; and it circumscribes the scope of the services to be provided in French in the administration of justice. The purpose of the Act is to contribute to the development and enhancement of the Acadian and Francophone community.
With respect to the administration of justice in the province, section 11 provides that French may be used in any proceeding in the Provincial Court and Supreme Court of Prince Edward Island. Under section 12, the decisions of the Provincial Court and Supreme Court must be rendered simultaneously in French and English in cases in which French was used in the proceedings.
The Provincial Court and Supreme Court must ensure that everyone has the right to be heard in French or English, according to his or her choice, and the Act provides for the use of simultaneous interpretation where a party so requests. However, most of these provisions have not been proclaimed.
Section 133 of the Constitution Act, 1867 provides that English and French may be used “in any Pleading or Process in or issuing from any Court of Quebec”.
The Government of Saskatchewan enacted the Act respecting the Use of the English and French Languages in Saskatchewan. That Act grants limited language rights that apply to the judicial system. Subsection 11(1) of that Act allows the use of French and English in the designated courts.
Yukon Section 5 of the Yukon Languages Act provides that “either English or French may be used by any person in, or in any pleading in or process issuing from, any court established by the Legislative Assembly”.