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 in Part III (Administration of Justice) of the federal Official Languages Act, paragraphs 530.1 (a), (b) and (c) of Part XVII (Language of Accused) of the Criminal Code and section 23.2 of the Divorce Act.

Purpose

According to the Supreme Court of Canada, the purpose of section 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, at paragraph 53; Tompouba, at paragraphs 30 and 31).Footnote 10 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, at page 739).

Caselaw

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 (subs. 19(1)), the courts of New Brunswick (subs. 19(2)) and in any pleading or process issuing from those courts.

The right to use the official language of one’s choice before a court does not imply the right to be heard or understood in that language (Tompouba, at paragraphs 29 and 32; Société des Acadiens at paragraph 53; Mercure at page 298; Cross at paragraph 31; Kilrich 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 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 at pages 1017-18 and Société des Acadiens at paragraph 53).

The rights guaranteed by subsection 19(2) of the Charter, with regard to New-Brunswick tribunals, 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 New-Brunswick Courts but also Courts administered by that province and those administered by judges appointed by that province (Blaikie No. 1 at page 1028).

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 (Tompouba at paragraphs 29 and 32; Société des Acadiens at paragraph 51). Consequently, litigants are not entitled to require, on the basis of this provision, that documentary evidence from the Crown or from another party be provided to them in the official language of their choice (Rodrigue at page 6) or that the handwritten parts of forms, such as indictments or denunciations, be in their chosen official language (Noiseux Parts III and IV).

A person’s ability to speak in both official languages does not affect such person’s constitutional right to choose either French or English in the context of court proceedings (Mazraani at paragraph 20). It must be a free and informed choice, which is not the case “if the person who made the choice wrongly believed that he or she had to speak in the language of the judge or of a party” (Mazraani at paragraphs 42 and 73). In addition, it is not up to the lawyer of the party who called a witness to decide the language in which that witness will testify (Mazraani at paragraph 33).

It is also possible to change one’s choice of language (Mazraani at paragraph 40), although this is not an unlimited option. As such, the history of a case, the numerous requests for change by an accused, in particular as to the language of the trial, the language of their lawyer and the type of trial (with or without a jury), as well as the various exchanges of a trial judge with an accused and the bad faith of the accused, may justify a trial judge’s decision to find that an accused failed to act diligently to retain the services of counsel who would be able to represent him in French during their trial, and that the accused was only seeking to delay the progress of the case (Arsenault).

Moreover, a judge cannot induce a witness or a party’s lawyer to use an official language, even if this would facilitate the understanding of one of the parties, including a self-represented party (Mazraani at paragraph 2). In fact, it is up to federal court judges to ensure that the language rights of witnesses, parties and any person appearing before them are respected (Mazraani at paragraph 32).

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 waive this right when they consent and are  able to act on behalf of the Attorney General in the official language of the accused in any proceeding with respect to which an order under section 530 of the Criminal Code (Part XVII (Language of Accused) of the Criminal Code) has been made (Bujold at paragraph 8; Cross at paragraphs 51-2)).

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 maintain and develop 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 at paragraphs 36-44).

5- Legislative advancement

The rights provided for in section 19 of the Charter constitute a minimum (Tompouba at paragraph 32; MacDonald 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 (Tompouba at paragraph 33; Beaulac at paragraph 22), Part XVII of the Criminal Code (Tompouba at paragraph 34; Beaulac at paragraph 22) and section 23.2 of the Divorce Act.

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