Section 19 – Proceedings in courts established by Parliament and in New Brunswick courts

Provision

Proceedings in courts established by Parliament

19.(1) Either English or French may be used by any person in, or in any pleading in or process issuing from, any court established by Parliament.

Proceedings in New Brunswick courts

(2) Either English or French may be used by any person in, or in any pleading in or process issuing from, any court of New Brunswick.

Similar provisions

Almost identical provisions apply to the courts of Canada and Quebec and those of Manitoba under section 133 of the Constitution Act, 1867 and section 23 of the Manitoba Act, 1870 respectively. See also section 14 of the federal Official Languages Act (1988).

Purpose

According to the Supreme Court of Canada, the purpose of s. 19 of the Charter is to the same effect as section 23 of the Manitoba Act, 1870 and section 133 of the Constitution Act, 1867 (Société des Acadiens, (Société des Acadiens v. Association of Parents for Fairness in Education, [1986] 1 S.C.R. 549) at paragraph 53). These provisions share the same purpose, which is to ensure full and equal access to courts to Anglophones and Francophones alike (Reference re Manitoba Language Rights, (Reference re: Manitoba Lanugage Rights, [1985] 1 S.C.R. 721) at page 739).

Analysis

1. The scope of the right

Section 19 of the Charter provides for the right of every person to use English or French before the courts established by Parliament (subsection 19(1)), the courts of New Brunswick (subsection 19(2)) and in any pleading or process issuing from those courts.

The right to use the official language of his or her choice before a court does not imply the right to be heard or understood in that language (Société des Acadiens, at paragraph 53; Mercure, (R. v.  Mercure, [1988] 1 S.C.R. 234) at page 298; Cross, (R. v. Cross, [1998] A.Q. no 2629(Qué. C.A.)) at paragraph 31; Kilrich, (Kilrich Industrie Ltd. v. Halotier, 2007 YKCA 12) at paragraph 74)).

2. Scope of the term “courts”

Subsection 19(1) applies to proceedings in courts established by or under an Act of Parliament (MacKenzie, (R. v. MacKenzie, 2004 NSCA 10) at paragraphs 36 to 39).

The expression “courts” includes quasi-judicial organizations. The test to be applied in determining whether a quasi-judicial body is to be considered a "court" is stated as follows: it includes any federal institution whose organizing statute confers the power to decide matters affecting the rights or interests of the individual, by applying principles of law and not considerations of convenience or administrative policy (Blaikie No. 1, (Blaikie v. Quebec (Attorney General), [1979] 2 S.C.R. 1016) at pages 1017-18 and Société des Acadiens, at paragraph 53).

The rights guaranteed by subsection 19(2) of the Charter are of the same nature and scope as those guaranteed by section 133 of the Constitution Act, 1867 with respect to the courts of Canada and the courts of Quebec (Société des Acadiens, at pages 574-75). As a result, subsection 19(2) includes not only so-called section 96 Courts but also Courts administered by the Province and administered by provincially-appointed Judges (Blaikie No. 1).

3. Rights holders

The language rights protected by section 19 of the Charter are those of litigants, counsel, witnesses, judges and other judicial officers who actually speak, not those of parties or others who are spoken to; as well as those of the writers or issuers of written pleadings and processes, not those of their recipients or readers (Société des Acadiens, at paragraph 51).

A person’s ability to express him or herself in both official languages does not impose such person’s constitutional right to choose either French or English in the context of court proceedings. One’s ability to speak both official languages is irrelevant (Mazraani, (Industrielle Alliance, Assurance et services financiers inc. v. Mazraani, 2017 FCA 80) at paragraph 10).

Finally, although it is true that subsection 19(2) of the Charter recognizes that any person has the right to use either official language in any matter before courts in New Brunswick, Crown counsel waives this right when he or she accepts to act on behalf of the Attorney General in any proceeding with respect to which an order under section 530 of the Criminal Code has been made (Bujold, (Bujold v. R., 2011 NBCA 24) at paragraph 8).

4. Distinctions between language rights and right to a fair trial

Language rights are distinct from the right to a fair trial. The right to full answer and defence is linked with linguistic abilities only in the sense that the accused must be able to understand and be understood at trial. This is already guaranteed by section 14 of the Charter, which provides for the right to an interpreter. The right to a fair trial is universal and cannot be greater for members of official language communities than for persons speaking other languages. Language rights have a completely distinct origin and role. They are meant to protect official language minorities in this country and to ensure the equality of status of French and English (Société des Acadiens, at paragraphs 27-28; Beaulac, (R. v. Beaulac, [1999] 1 S.C.R. 768) at paragraphs 36-44).

5. Legislative advancement

The rights provided for in section 19 of the Charter constitute a minimum (MacDonald, (MacDonald v.  Montreal (City), [1986] 1 S.C.R. 460) at paragraph 104). Their scope can be expanded (subsection 16(3) of the Charter). In the federal sphere, legislative advancement has been made in Part III of the Official Languages Act and Part XVII of the Criminal Code.

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