[1] This appeal addresses third-party accountability for complying with language obligations imposed on their principal by the Canadian Charter of Rights and Freedoms (the Charter). Subsection 20(2) of the Charter, detailed in section 31 of New Brunswick's Official Languages Act (the Act), imposes on the province of New Brunswick the duty to provide its police services in the official language of the citizen's choice, everywhere in the province.
[2] In its judgment dated August 26, 2005 (2005 FC 1172), the trial judge equated the RCMP to a provincial institution for the purposes of subsection 20(2) of the Charter. This comparison is wrong. The province of New Brunswick owes the relevant obligations imposed by the Charter and by the Act, even when the province assigns to the RCMP the responsibility to act in its name.
The parties to the dispute
[3] The Société des Acadiens et des Acadiennes du New Brunswick Inc. is a body corporate incorporated under New Brunswick's Companies Act. It is a not-for-profit corporation without share capital. It acts in the furtherance of its role as spokesperson for the Acadian community of New Brunswick and to protect and promote the rights and interests of that community.
[4] Marie-Claire Paulin is a citizen of New Brunswick, whose residence is located in the City of Moncton.
[5] As the trial judge observed, the parties have agreed on a number of admissions on the facts and have jointly filed 23 documents.
[6] Marie-Claire Paulin was stopped for speeding on April 26, 2000, by an RCMP officer on the Trans Canada Highway in the area of Woodstock, specifically in Debec, in the province of New Brunswick. The RCMP officer in question could not address Ms. Paulin in French and did not actively offer to do anything about that. The ticket was issued in French.
[7] Marie-Claire Paulin paid the fine imposed on her on April 26, 2000.
[8] In the mid-1990s, the RCMP combined its four Atlantic divisions - "H" Division in Nova Scotia, "B" Division in Newfoundland and Labrador, "L" Division in Prince Edward Island and "J" Division in New Brunswick. The purpose of the reorganization was to allocate administrative offices among the divisions.
[9] The issue of official languages was the subject of discussion at the meetings of the transition team for the Atlantic Region. It was decided that a subcommittee would be created for an in-depth review of the issue of official languages in the context of regionalization.
[10] The subcommittee made certain recommendations to the Atlantic Region Steering Committee. The chief recommendation was to proceed directly with a review of all the positions, administrative as well as in operations, to determine the needs for designated bilingual positions
[11] The management of the Atlantic RCMP called on an independent consultant to carry out a review of the interpretation, the application and the implementation of Canada's OLA and its Regulations in the Atlantic Region.
[12] Upon completing his investigation, the consultant recommended an overall reduction in the RCMP's language obligations in the area of oral communications.
[13] The Société des Acadiens et Acadiennes du New Brunswick Inc. submits that any review of positions at RCMP offices in New Brunswick for the purpose of determining language requirements at those offices, including the review done by the consultant in this case, must consider New Brunswick's distinctiveness in matters of language and, more specifically, section 16.1 and subsections 16(2) and 20(2) of the Charter.
[14] Canada's position is that section 16.1 and subsections 16(2) and 20(2) do not apply in this case, and that in any event the findings stated in the Wilson report have not been implemented.
[15] The Attorney General of New Brunswick did not appear, even though a notice of constitutional question was served on him.
Issues before the Federal Court
[16] The parties limited the issues to be decided by the Federal Court to the following:
A) Does the RCMP have a duty to comply with the special constitutional obligations of New Brunswick as set out in section 16.1 and subsections 16(2) and 20(2) of the Charter?
B) Is the RCMP required to have regard to and comply with section 16.1 and subsections 16(2) and 20(2) in interpreting and implementing subsection 20(1) of the Charter and the OLA of Canada and the Regulations in New Brunswick?
C) Does the RCMP have a duty under paragraph 6(1)(d) of the Regulations to offer its services in both official languages, throughout the area served by the Woodstock detachment?
By joint agreement, the last question was withdrawn before the trial judge made her order.
Order by the Federal Court
[17] The Court declared that the provincial police service offered by the Royal Canadian Mounted Police pursuant to its agreement with the province of New Brunswick is subject to subsection 20(2) of the Charter. However, the Royal Canadian Mounted Police has one year from the date of that order to meet the language obligations resulting from that declaration.
[18] This is an appeal of that declaration.
Background to the events
[19] New Brunswick's Police Act requires the province and the municipalities to establish a police force to ensure order and maintain the peace.
[20] As a federal police force, the RCMP is responsible for enforcing federal law throughout Canada.
[21] By intergovernmental agreement, the RCMP can acquire additional responsibilities. The Royal Canadian Mounted Police Act authorizes the Minister of Public Safety and Emergency Preparedness of Canada to enter into arrangements with the provinces or the municipalities in order to aid those levels of government in the "administration of justice" in their jurisdiction. The RCMP can then assume more responsibility in the enforcement of the Criminal Code, as well as other tasks that the parties can mutually agree on, falling within the purview of provincial legislation or municipal by-laws.
[22] This is the basis for the RCMP's acting as provincial police in eight provinces, the exceptions being Quebec and Ontario, as well as a municipal police force on behalf of approximately 200 municipalities.
[23] This is the case in New Brunswick. New Brunswick's Police Act enables the province to retain the services of the RCMP to act on its behalf as a provincial police force.
[24] According to the terms of an agreement dated April 1, 1992, the RCMP acts as provincial police force on behalf of the province. According to that agreement, the province decides the extent of the service to be provided by that police service, beyond a minimum threshold set by the RCMP. It is also the province that sets the objectives, priorities and goals of the Provincial Police Service; the RCMP's Officer in Charge must implement these objectives, goals and priorities and is accountable to the province for its implementation.
[25] According to the terms of the contract, it is the responsibility of the province responsible for the task to establish the level of service in both official languages required from the RCMP, beyond the language obligations that the RCMP must already observe as a federal institution.
[26] The agreement between Canada and the government of New Brunswick is silent regarding language obligations.
[27] On August 5, 2002, a new Official Languages Act came into effect in New Brunswick. This Act specifically addresses the official language obligations of police services.
Issue before the Federal Court of Appeal
[28] Must the appellant and her institutions fulfill the obligations that the Constitution and the provincial legislation impose on a province?
[29] Is the Federal Court the forum conveniens for this dispute?
Standard of Review
[30] The facts giving rise to the dispute are not contested. In these circumstances, the standard is that of correctness.
Analysis
[31] The appellant does not dispute that the citizens of New Brunswick have the right to communicate and receive services from the police force in the official language of their choice or that the province of New Brunswick has the obligation to ensure that those rights are respected. The contract recognizes that the province has the power to set a level of service for its provincial police force that is higher than the level of service the RCMP provides elsewhere. The appellant is only asking that a distinction be made between the language regime governing the RCMP as a federal institution and the additional language obligations that the province can ask the RCMP to assume under the terms of a contract.
[32] The Charter contains the undertaking that any member of the public may communicate with an "institution of the legislature or government" of New Brunswick and receive services in the official language of their choice. The Charter clearly establishes that the province and its institutions are responsible for respecting that undertaking.
[33] Even though it came into force after the events that gave rise to this dispute, New Brunswick's Official Languages Act makes this undertaking more explicit. It imposes on New Brunswick police forces specific official language obligations. Its subsection 31(2) recognizes the institutional nature of the obligation by authorizing a step-by-step approach: a peace officer who is unable to provide service in the language chosen by the member of the public may take alternative measures to ensure that communication.
[34] The Constitution clearly establishes, at subsection 91(14) of the Constitution Act, 1867, provincial jurisdiction over the "Administration of Justice". This jurisdiction includes the responsibility to create and organize police forces.
[35] The RCMP's ability to acquire an additional role does not at all compromise its designation as a federal institution. As such, Parliament continues to enjoy the exclusive jurisdiction to regulate the "discipline, organization and management" of the RCMP and its members, even when they are acting as provincial police officers.
[36] The RCMP must therefore continue to fulfill the language obligations that the Charter imposes on federal institutions, even when it is acting as a police force for a province that is not subject to constitutional official language obligations.
[37] Both the Charter and New Brunswick's Official Languages Act expressly provide that the province, as principal, remains responsible for the acts of the RCMP, its agent. In both cases, the official language obligations are imposed on the institutions of the Legislative Assembly of New Brunswick or its government; in each case, these institutions remain accountable for respecting their respective obligations.
[38] The trial judge indeed recognizes this on several occasions: it is the province that is responsible for ensuring that the obligation at issue is respected.
[39] The issue therefore is not whether the Charter and the Act create an obligation for the province, since the province is expressly named as owing the applicable language rights.
[40] The language regime applicable to New Brunswick institutions is distinguishable, in many respects, from the regime applicable to "institutions of the Parliament and government of Canada". These distinctions are rooted in the wording of subsections (1) and (2) of section 20 of the Charter; they are enhanced by the federal and provincial legislation. Therefore:
a. In New Brunswick, the public enjoys an absolute right to use the official language of their choice to communicate or receive services from "any office of an institution of the legislature or government".
b. The federal equivalent to this right is more nuanced. The public exercises this right when dealing either with the head or central office of a federal institution, or with any office of that institution, where there is a significant demand or where the nature of the office so warrants.
c. Distinct accountability regimes ensure that this right is respected. The institutions of the province must answer to New Brunswick's Commissioner of Official Languages; then, through him, to the provincial executive; and ultimately, to the province's superior court, the Court of Queen's Bench, for breaching the obligations imposed by the New Brunswick legislation or by the Charter.
d. Parliament entrusted the task of hearing complaints relating to violations of federal official languages legislation to the Commissioner of Official Languages of Canada; through this language ombudsman, the federal institutions are accountable before the federal executive, then before Parliament. A legal remedy in the Federal Court supplements this administrative and parliamentary recourse, where the federal legislation so provides.
[41] The case law dealing with the issue of delegating certain obligations to third parties, such as Canada (Commissioner of Official Languages) v. Canada (Department of Justice), [2001] F.C.J. No. 431, simply recognizes that the one owing constitutional obligations cannot dispose of them by delegating them to others. It remains nonetheless responsible.
[42] The issue raised in this appeal is whether the agent fulfilling those obligations is also responsible for the constitutional obligations of the principal. In this case, the agent is a federal institution, but it could just as easily be a provincial institution (for example, the Sureté du Québec under contract with the province of New Brunswick) or even a business that is not governmental (a private police service). Since all are agents of the province, all are responsible in the same way, if they are responsible. When the issue of the agent's responsibility is raised in a context other than that of a federal institution, it is obvious that the source of the responsibility is contractual, and not constitutional.
[43] The failure to identify the party owing the obligation leads to the misidentification of the court able to hear the resulting dispute. Under subsection 24(1) of the Charter as well as subsection 43(18) of New Brunswick's Official Languages Act, the court that has the authority to decide a dispute regarding the language obligations of the province of New Brunswick is the Court of Queen's Bench of that province.
[44] I would add that the declaration issued in this case is based on the determination that the obligations imposed by the Act of 2002 were not respected. However, that text does not apply in this case since, as I noted earlier, the events giving rise to this dispute took place before the Act came into effect.
[45] The SAANB disputes the consultant's report filed in February 1998. The incident on which Ms. Paulin's complaint is based occurred on April 26, 2000. The Act came into effect on August 5, 2002, more than two years later. The Act does not apply to those complaints.
Disposition
[46] For these reasons, the appeal will be allowed and the declaration issued in the order by the Federal Court will be set aside.
Costs
[47] Considering the circumstances of this matter, it would be fair that each party assume their costs.
"J. Richard"
"I agree
M. Nadon J.A."
"I agree
J.D.Denis Pelletier"
Certified true translation
Kelley A. Harvey, BCL, LLB
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