Société des Acadiens et Acadiennes du Nouveau-Brunswick Inc. v. Canada

Bastarache J. — Section 20(2) of the Canadian Charter of Rights and Freedoms 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 in the case of services provided by federal institutions under s. 20(1) of the Charter , this right does not depend on the territorial concentration of the language group 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. Section 20 reads as follows:

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 or government of Canada in English or French, and has the same right with respect to any other office of any such institution where

(a) there is a significant demand for communications with and services from that office in such language; or

(b) 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.

(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.

The question before the Court in this case is whether, by agreeing in a contract to provide police services in the province, the Royal Canadian Mounted Police (“RCMP”), a federal institution, is bound by the more generous rules respecting language in New Brunswick or is required to meet only the federal official languages standards.

When Marie‑Claire Paulin, a New Brunswick resident, was stopped for speeding by an RCMP officer while driving on the Trans‑Canada Highway near Woodstock, New Brunswick, the officer did not communicate orally with her in French. Ms. Paulin paid the fine but later brought a declaratory action against the federal Crown to have her right to receive police services in the official language of her choice affirmed under s. 20(2) of the Charter .

As for the Société des Acadiens et Acadiennes du Nouveau‑Brunswick (“SAANB”), a non‑profit corporation without share capital, it filed an application in the Federal Court under s. 24 of the Charter after taking cognizance of a report recommending to the RCMP’s Atlantic Regional Executive Committee that the RCMP’s obligations in the area of oral communications in French be reduced in that region. In its application, the SAANB sought clarification of the obligations the RCMP must meet when its members provide provincial police services under the agreement entered into with the New Brunswick government on April 1, 1992. The Committee had commissioned the report after the RCMP’s four Atlantic divisions were combined in the mid‑1990s. The SAANB submitted that any review of RCMP positions in New Brunswick for the purpose of determining their language requirements had to have regard to ss. 16.1 , 16(2) and 20(2) of the Charter , which is an obligation that would stand in the way of implementing the report.

The actions of Ms. Paulin and the SAANB (the “appellants”) were joined in the Federal Court. The appellants argued that when the RCMP serves as a provincial police force in New Brunswick, it is subject to the language obligations imposed on that province by s. 20(2) of the Charter . The RCMP submitted that this provision of the Charter is not applicable, because the RCMP is a federal institution and s. 20(2) can apply only to New Brunswick institutions.

The Federal Court held that serving as a provincial police force makes the RCMP an institution of the New Brunswick government for the purposes of s. 20(2) and that the RCMP is therefore required to provide police services in accordance with the provincial language standards: [2006] 1 F.C.R. 490, 2005 FC 1172. The Federal Court of Appeal set aside the trial judgment, rejecting the argument that the RCMP must be equated with an institution of the New Brunswick government. According to Richard C.J., writing for the court, the RCMP cannot assume the province’s constitutional language obligations: [2007] 2 F.C.R. 177, 2006 FCA 196. He held that only the province is responsible for discharging language obligations under s. 20(2) and that the proceedings should have been brought only against the province, and in the New Brunswick Court of Queen’s Bench.

This Court must therefore decide whether RCMP members designated as provincial peace officers under an agreement between Canada and the province of New Brunswick (“Agreement”) are required, when performing their duties as provincial police officers, to fulfil the language obligations imposed on institutions of the New Brunswick government by s. 20(2) of the Charter . It is common ground that the RCMP is at all times subject to the minimum obligations imposed on it by s. 20(1) of the Charter and by the federal official languages legislation, regardless of whether it is acting as the federal police force or as a provincial or municipal force under an agreement.

The appellants assert that s. 20(1) of the Charter applies to the RCMP when it serves as a provincial police force, as was indicated in Doucet v. Canada, [2005] 1 F.C.R. 671, 2004 FC 1444, but they add that it should not be concluded that s. 20(1) establishes a language threshold that cannot be raised when the province in question has greater obligations. If the RCMP takes responsibility for a function of the New Brunswick government, it must be equated with and must assume the same obligations as a provincial institution.

The appellants also point out that the powers exercised by the RCMP as a provincial police force derive from provincial statutes and that, pursuant to those statutes, RCMP members are peace officers for New Brunswick (Police Act, S.N.B. 1977, c. P‑9.2; Motor Vehicle Act, R.S.N.B. 1973, c. M‑17). As a result, they argue, the RCMP members are part of the provincial government. And all officers of the provincial government are required to comply with provincial statutes and with s. 20(2) of the Charter .

The respondent relies on the principle of constitutional accountability of governments and argues that New Brunswick remains constitutionally responsible for the administration of justice and for the actions of its delegates in this regard, be they from the private sector or members of another government. Relying on Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624, the respondent submits that New Brunswick cannot evade its constitutional obligations by alleging that its delegate, the RCMP, has assumed them in its stead. The RCMP cannot be both a federal institution and a provincial institution. Its constitutional obligations are therefore limited to those applicable to the federal government, and any additional obligations can only be contractual, which means that an action might lie only for breach of contract. But the Agreement with New Brunswick includes no specific language obligations.

The interveners have proposed a different solution. In their opinion, s. 20(1) of the Charter does apply, but a contextual interpretation of that section allows its scope to be extended in this case because of New Brunswick’s constitutional specificity. According to this approach, the words “significant demand” and “nature of the office” in s. 20(1) of the Charter should be interpreted broadly as requiring the RCMP to provide bilingual services everywhere in New Brunswick.

Before considering all these arguments in greater detail, I will briefly describe the existing legislative scheme.

The Agreement between New Brunswick and Canada is authorized by a provincial statute (s. 2 of the Police Act) and a federal statute (s. 20 of the Royal Canadian Mounted Police Act , R.S.C. 1985, c. R‑10 (“RCMPA ”)). The RCMPA authorizes the RCMP to enter into contracts to perform provincial policing duties. The counterpart of that federal statute in New Brunswick is the Police Act, s. 2(1) of which provides that the New Brunswick government may enter into such agreements with the RCMP. Section 2(2) of the Police Act gives an RCMP member all the attributes of a New Brunswick peace officer.

The RCMP, which is constituted under s. 3 of the RCMPA , is responsible for enforcing federal laws throughout Canada. There is no doubt that the RCMP remains a federal institution at all times. This principle was confirmed in R. v. Doucet (2003), 222 N.S.R. (2d) 1, 2003 NSSCF 256, and in Doucet v. Canada, in which it was held that the RCMP retains its status as a federal institution when it acts under a contract with a province. This means that the RCMP cannot avoid the language responsibilities flowing from s. 20(1) of the Charter when it acts as a provincial police force. The Federal Court and the Federal Court of Appeal recognized this in the instant case. But s. 20 of the RCMP’s enabling statute provides that it may also be given responsibility for the administration of justice and law enforcement in provincial or municipal jurisdictions. As a result, the fact that, in light of its nature and by virtue of its constitution, the RCMP is and remains a federal institution does not answer the question before this Court.

Section 20(1) of the RCMPA authorizes the RCMP to enter into agreements with the provinces and enforce the laws in force therein. This is not in dispute. Provincial laws must, of course, be enforced in a manner consistent with the Constitution; there is no reason to think that the legislature might have intended anything else in this case. Does this pose a problem because the RCMP is a federal institution? I do not think so.

Section 2(2) of the Police Act provides that “[e]very member of the Royal Canadian Mounted Police . . . has all the powers, authority, privileges, rights and immunities of a peace officer and constable in and for the Province of New Brunswick”. 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 s. 20(2) of the Charter . Although New Brunswick continues to be responsible for administering justice in accordance with its constitutional language obligations despite the Agreement, this in no way changes the fact that the RCMP may have its own language obligations to meet in fulfilling its mandate in New Brunswick.

In Canada (Commissioner of Official Languages) v. Canada (Department of Justice) (2001), 194 F.T.R. 181, 2001 FCT 239, the Federal Court—Trial Division held that a government may not adopt policies that would, as a result of agreements entered into, hinder the protection of guaranteed rights. In that case, the federal government had, by contract, effectively transferred the administration of certain criminal prosecutions to the province of Ontario. Under the agreement, the provincial language rights scheme, which provided less protection to francophones, became applicable to a federal matter. The court held that the federal government could not jettison its constitutional obligations in this way. However, it did not rule on the obligations of Ontario officers performing duties under the agreement with the federal government.

In the instant case, there is no transfer of responsibility for the administration of justice in the province. Under the Agreement between the RCMP and New Brunswick, the New Brunswick Minister of Justice is responsible for setting “the objectives, priorities and goals of the Provincial Police Service” (art. 3.3). The Minister determines the level of service to be provided. The respondent acknowledges, at para. 62 of her factum, that — as the Federal Court observed (para. 39) — New Brunswick retains control over the RCMP’s policing activities. The RCMP remains responsible for internal management only (art. 3.1(a)). What must be concluded from this situation is that the institution in question is an institution of the New Brunswick government, that is, its Minister of Justice, and that the Minister discharges his or her constitutional obligations through the RCMP members designated as New Brunswick peace officers by the provincial legislation. The provision of services by the RCMP must therefore be consistent with the obligations arising under s. 20(2) of the Charter .

The RCMP does not act as a separate federal institution in administering justice in New Brunswick; it assumes, by way of contract, obligations related to the policing function. The content of this function is set out in provincial legislation. Thus, in New Brunswick, the RCMP exercises a statutory power — which flows not only from federal legislation but also from New Brunswick legislation — through its members, who work under the authority of the New Brunswick government.

Regard must also be had to the fact that the functions for which the RCMP is responsible in the instant case are government functions that are subject to specific constitutional obligations. The RCMP may not take on such functions without assuming the obligations associated with them. This principle was articulated by Lamer J. (dissenting on other grounds) in Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038, at pp. 1077‑78:

The fact that the Charter applies to the order made by the adjudicator in the case at bar is not, in my opinion, open to question. The adjudicator is a statutory creature: he is appointed pursuant to a legislative provision and derives all his powers from the statute. As the Constitution is the supreme law of Canada and any law that is inconsistent with its provisions is, to the extent of the inconsistency, of no force or effect, it is impossible to interpret legislation conferring discretion as conferring a power to infringe the Charter , unless, of course, that power is expressly conferred or necessarily implied. . . . Legislation conferring an imprecise discretion must therefore be interpreted as not allowing the Charter rights to be infringed. Accordingly, an adjudicator exercising delegated powers does not have the power to make an order that would result in an infringement of the Charter , and he exceeds his jurisdiction if he does so. [Emphasis added; emphasis in original deleted.]

Professor Hogg added the following in Constitutional Law of Canada (5th ed. 2007), vol. 2, at pp. 86‑87:

Where the Parliament or a Legislature has delegated a power of compulsion to a body or person, then the Charter will apply to the delegate.

. . .

. . . it is the exercise of a power of compulsion that makes the Charter applicable to bodies exercising statutory authority. [Emphasis added.]

These comments correspond to the view of Gauthier J., the trial judge in the case at bar, who stated the following on this point at paras. 39‑40 of her reasons:

As Peter Hogg said in Constitutional Law of Canada, 4th edition, at page 514, the performance of provincial and municipal police services under a contract between the RCMP and a province is authorized by a statute of the province . . . and by a federal statute . . . and derives in part from the province’s power to administer justice under subsection 92(14) of the Constitution Act, 1867 . . . .

When the RCMP member arrested Mrs. Paulin and gave her a ticket under the Motor Vehicle Act . . . he was performing a government function, more particularly a function of the Government of New Brunswick.

Richard C.J. of the Federal Court of Appeal stressed the fact that the RCMP’s obligations are contractual and not constitutional. I do not think these two types of obligations are mutually exclusive. It is as a result of the Agreement that the RCMP, by participating in a function of the New Brunswick government, has constitutional obligations imposed on it under s. 20(2) of the Charter . As I explained above, the RCMP must fulfil that province’s obligations when acting on its behalf. This reasoning is echoed in the Agreement itself, art. 2.2 of which provides as follows:

Those Members who form part of the Provincial Police Service shall

a) perform the duties of peace officers; and

b) render such services as are necessary to

. . .

ii) execute all warrants and perform all duties and services in relation thereto that may, under the laws of Canada or the Province, be executed and performed by peace officers. [Emphasis added.]

Article 4.1 is also quite explicit:

For the purposes of this Agreement, the Commanding Officer shall act under the direction of the Minister in aiding the administration of justice in the Province and in carrying into effect the laws in force therein. [Emphasis added.]

The parties have used the word “services” in the second paragraph of art. 2.2, in contrast with the word “duties” used in the preceding paragraph. It can be inferred from this that the concept of “services” as understood by the parties is similar to that found in s. 20(2) of the Charter and that the parties intended that the RCMP, in performing its mandate, also assume the language “duties” in relation thereto and, therefore, provide citizens with bilingual services. This seems all the more true given that “necessary” services are, by definition, services that are consistent with the law, including the Constitution. I see no need to expressly provide for the duty of bilingualism in the Agreement, since bilingualism is at any rate a constitutional requirement.

In light of the foregoing analysis, it will not be necessary to consider the interveners’ argument that s. 20(1) of the Charter should be interpreted broadly.

For the reasons set out above, I would allow the appeal and declare that s. 20(2) of the Charter requires the RCMP to provide services in both official languages when acting as a provincial police force pursuant to the Agreement between the New Brunswick government and the Government of Canada dated April 1, 1992.

The appellants ask for $135,000 in costs. Since the respondent appears to have acknowledged the importance of the principles in issue in this case, as she has not asked for costs, the appellants are awarded the requested amount.