Date: 20071105
Docket: A-402-06
Citation: 2007 FCA 308
CORAM: DÉCARY
J.A.
LINDEN J.A.
TRUDEL
J.A.
BETWEEN:
HOWARD P. KNOPF
Appellant
and
SPEAKER OF THE HOUSE OF COMMONS
and ATTORNEY GENERAL OF CANADA
Respondents
REASONS FOR JUDGMENT
TRUDEL J.A.
[1]
This
is an appeal of the decision of Layden-Stevenson J. of the Federal Court (2006
FC 808) dismissing the appellant’s application brought under Part X of the Official
Languages Act, R.S.C. 1985, c. 31 (4th supp.) (“Act”).
The Facts
[2]
On
April 20, 2004, the appellant appeared before the House of Commons Standing
Committee on Canadian Heritage to testify as a specialized lawyer on matters
relating to copyright reform, World Intellectual Property Organization treaty
ratification, and private copying.
[3]
Prior
to his appearance, he sent four documents to the Committee’s clerk requesting
their distribution to its members. The clerk accepted the documents and made copies of them.
However, the Committee members decided not to allow for their distribution
because the documents were in English only.
[4]
This
decision gave effect to a rule of procedure previously adopted by the
Committee, which provides for the distribution of documents to its members only
when they are available in both official languages (minutes of proceedings of
the Committee, February 24, 2004). The Committee reaffirmed the same rule at its organizational
meeting for the First Session of the 38th Parliament on October 18,
2004.
[5]
The
appellant opines that a witness before a parliamentary committee has the right
to submit documents in either official language for contemporaneous distribution
to committee members as part of his or her testimony. When appearing in front
of the Committee, the appellant states:
… I think
it’s more important that the committee be informed than that everything be
bilingual… .
[6]
November
11, 2004, the appellant filed a complaint with the Commissioner of Official
Languages pursuant to section 58 of the Act. He repeated his previous
statement: “I have a right to ask the members to read my material in the
language of my choice. I would rather that it not be read by one or more
members than it be inadequately or inaccurately translated”. By letter dated
March 1, 2005, the Commissioner dismissed his complaint.
[7]
Therefore,
the appellant brought an Application pursuant to the provisions of Part X of
the Act and claimed a violation of his language rights under the Act, the Charter
of Rights and Freedoms (“Charter”), and the Constitution Act, 1867.
[8]
Justice
Layden-Stevenson dismissed the Application without costs. The applications
judge reviewed the facts and the position of the parties thoroughly. She
resolved the case at bar through determination of the following issues:
(a) whether Mr. Knopf’s language
rights were violated; and
(b)
whether parliamentary privilege applied to the proceedings of the Committee.
[9]
The
Committee adequately respected Mr. Knopf’s right to address himself to its
members in the language of his choice. The first judge was right in concluding
that the Committee, through its decision not to distribute the documents sent
by the appellant, did not infringe on Mr. Knopf’s language rights, as provided
for in section 4 of the Act.
[10]
As
a result, addressing the question of parliamentary privilege becomes
unnecessary. Consequently,
my summary of the first judgment and of the parties’ submissions, as well as my
analysis of the applicable law are limited to this specific issue.
[11]
It
is useful, at this moment, to set out the relevant statutory provisions:
Constitution Act, 1867 (U.K.), 30
& 31 Vict., c.3, reprinted in R.S.C. 1985, App. II, No.5, section 133:
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133. Either the
English or the French Language may be used by any Person in the Debates of
the Houses of the Parliament of Canada and of the Houses of the Legislature
of Quebec; and both those Languages shall be used in the respective Records
and Journals of those Houses; and either of those Languages may be used by
any Person or in any Pleading or Process in or issuing from any Court of
Canada established under this Act, and in or from all or any of the Courts of
Quebec.
The Acts of the
Parliament of Canada and of the Legislature of Quebec shall be printed and
published in both those Languages.
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133. Dans les chambres
du parlement du Canada et les chambres de la législature de Québec, l'usage
de la langue française ou de la langue anglaise, dans les débats, sera
facultatif; mais dans la rédaction des archives, procès-verbaux et journaux
respectifs de ces chambres, l'usage de ces deux langues sera obligatoire; et
dans toute plaidoirie ou pièce de procédure par-devant les tribunaux ou
émanant des tribunaux du Canada qui seront établis sous l'autorité de la
présente loi, et par-devant tous les tribunaux ou émanant des tribunaux de
Québec, il pourra être fait également usage, à faculté, de l'une ou de
l'autre de ces langues.
Les lois du parlement
du Canada et de la législature de Québec devront être imprimées et publiées
dans ces deux langues.
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Canadian Charter of
Rights and Freedoms, Part I of the Constitution Act, 1982,
being Schedule B to the Canada Act 1982 (U.K.), 1982, c.11,
subsections 17(1) and 20(1):
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17. (1)
Everyone has the right to use English or French in any debates and other
proceedings of Parliament.
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17. (1) Chacun
a le droit d'employer le français ou l'anglais dans les débats et travaux du
Parlement.
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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.
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20. (1) Le public a,
au Canada, droit à l'emploi du français ou de l'anglais pour communiquer avec
le siège ou l'administration centrale des institutions du Parlement ou du
gouvernement du Canada ou pour en recevoir les services; il a le même droit à
l'égard de tout autre bureau de ces institutions là où, selon le cas :
a) l'emploi
du français ou de l'anglais fait l'objet d'une demande importante;
b) l'emploi
du français et de l'anglais se justifie par la vocation du bureau.
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Official Languages Act, R.S.C. 1985, c. 31 (4th
supp.), subsection 4(1) and section 25:
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4. (1) English
and French are the official languages of Parliament, and everyone has the
right to use either of those languages in any debates and other proceedings
of Parliament.
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4. (1) Le
français et l’anglais sont les langues officielles du Parlement; chacun a le
droit d’employer l’une ou l’autre dans les débats et travaux du Parlement.
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25. Every
federal institution has the duty to ensure that, where services are provided
or made available by another person or organization on its behalf, any member
of the public in Canada or elsewhere can communicate with and obtain those
services from that person or organization in either official language in any
case where those services, if provided by the institution, would be required
under this Part to be provided in either official language.
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25. Il incombe aux institutions fédérales de
veiller à ce que, tant au Canada qu’à l’étranger, les services offerts au
public par des tiers pour leur compte le soient, et à ce qu’il puisse
communiquer avec ceux-ci, dans l’une ou l’autre des langues officielles dans
le cas où, offrant elles-mêmes les services, elles seraient tenues, au titre
de la présente partie, à une telle obligation.
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Judgment of the Federal
Court
[12]
The
applications judge is of the opinion that subsection 4(1) of the Act protects
an individual’s right to use the official language of his or her choice. It does
not dictate the form of the individual’s interaction with the Committee:
[39] Mr.
Knopf was entitled to speak to the Committee in the official language of his
choice. That right was respected. Mr. Knopf’s request that his documents be circulated did not fall within the parameters of
the right enshrined in subsection 4(1) of the OLA. Rather, it was a challenge
to the manner in which the Committee conducts its business. It was a challenge
to the procedure adopted by the Committee regarding the distribution of
documents. This is not, in my view, a language rights issue.
[13]
Citing
section 133 of the Constitution Act, 1867, she further states that «In
the context of proceedings before Parliament, the word “use” provides Mr. Knopf
with the right to speak in the official language of his choice», thus
concluding that Mr. Knopf’s choice of addressing the House Committee in either
English or French was respected.
Position of the Parties
in Appeal Regarding the Language Rights Issue
[14]
The
appellant argues that the first judge erred in law in failing to declare a
violation of his rights under the Act, the Charter, and the Constitution Act,
1867. Contrary to a finding of the Federal Court, he states that his
application is not the result of his disappointment because the Committee did
not consider his submission sufficiently. He declares that it involves a
language right, not a political right.
[15]
In
his opinion, it is an error to limit the meaning of the word “use’’ in
subsection 4(1) of the Act to oral speech excluding the right, for a witness,
to make written submissions or present written material in either official
language as an integral part of his or her testimony.
[16]
Finally,
the appellant is unsatisfied with the conclusions of the first judge on costs
under subsection 81(2) of the Act. He believes that “there is an important and
untested principle at stake here, which goes to the root of parliamentary
democracy in a bilingual society.”
[17]
Accordingly,
he seeks (a) a reversal of
the first decision; (b) a declaration that his language rights, as provided by
sections 16 and 17 of the Charter, and section 4 of the Act were violated by
the Committee; (c)
a
declaration that members of the public have the right, when appearing in front
of a Committee of the House of Commons, to submit relevant documents in either
official language for contemporaneous distribution to Members of the Committee
and (d) a declaration
that all parliamentary committees shall comply with the provisions of the Act
and the Charter in allowing distribution of relevant documents in either
official language, without the need to translate the documentation prior to
distribution to Committee Members.
[18]
As
for costs, the appellant seeks
(a) that
there be no order as to costs between him and the Speaker of the House of
Commons and (b) that there be
an order against the Attorney General of Canada pursuant to subsection 81(2) of
the Act, or alternatively that there be no costs in this matter.
[19]
The
Speaker of the House of Commons submits that this Court lacks the jurisdiction
to determine the appellant’s Charter rights or to make any ruling regarding the
decisions, reports, or proceedings of the Committee. His Memorandum of Facts
and Law deals mostly with parliamentary privilege which I indicated it is not
necessary to deal with.
[20]
In
any event, he agrees with, and supports the position of the Commissioner of
Official Languages and the Attorney General that the rights of the applicant
under the Act and the Charter were not violated. The Speaker of the House of
Commons seeks dismissal of the appeal without costs.
[21]
The
Attorney General suggests that the teleological construction of the Act
confirms the first judgment. He seeks dismissal of the appeal with costs in
this Court.
Analysis
[22]
Part
X of the Act provides that any person who has made a complaint to the
Commissioner in respect of a right or duty under section 4 may apply to the
Federal Court for a remedy under that Part (subsection 77(1)).
[23]
Subsection
77(4) specifies that:
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77. (4) Where, in
proceedings under subsection (1), the Court concludes that a federal
institution has failed to comply with this Act, the Court may grant such
remedy as it considers appropriate and just in the circumstances
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77. 4) Le tribunal
peut, s’il estime qu’une institution fédérale ne s’est pas conformée à la
présente loi, accorder la réparation qu’il estime convenable et juste eut
égard aux circonstances.
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[24]
The
House of Commons being defined as a federal institution (section 3 of the Act),
I entertain no doubt that the Federal Court has the jurisdiction to hear Mr.
Knopf’s appeal regarding the alleged violation of his language rights.
[25]
Turning
now to the appellant’s arguments, I find that he failed to show that the applications
judge erred in her appreciation of the evidence. The Agreed Statement of Facts
essentially lists all the facts of this case. Any additional facts ensue from
the uncontradicted affidavits of the appellant and the Speaker.
[26]
The
appellant disagrees with Justice Layden-Stevenson’s finding that the essence of
his complaint is that the Committee did not sufficiently consider his
submission and that his application involves a political issue, rather than a
language right.
[27]
There
is some evidence on record upon which she could rely to reach that conclusion.
The appellant unequivocally shows his disappointment that the Committee did not
accept his submissions both in his letter of complaint to the Commissioner of
Official Languages and his affidavit.
[28]
During
his oral argument, the appellant insisted that the Court consider his case with
a prospective view so that future witnesses appearing before a Parliamentary
committee will be authorized to require the distribution of documents written
or published in one of the official languages.
[29]
I
do not propose to widen the debate to consider theoretical situations that is
cases where documents were refused by a committee’s clerk, or where a witness
expressed himself or herself using means other than oral speech. This is not
the case to do so, nor is it the case to discuss parliamentary privileges
enjoyed by a committee of the House of Commons.
[30]
In
the case at bar, the appellant testified in front the Committee in English, the
language of his choice, and referred to his written documents as shown by the
partial transcript filed in support of his affidavit. He had sent those
documents prior to his testimony and they were received by the Committee’s
clerk and copied. They simply were not distributed. The Chair of the
Committee explained the procedure to the appellant as follows:
I understand
that you may not be aware of our policy. This committee educates itself in
both official languages. So it’s not that we will not see the document. We
will see it in both official languages. We don’t preclude ourselves from
reading it because it’s only in one language. We educate ourselves in both.
[31]
As
mentioned earlier, the appellant submits that by referring to the verb “to
speak”, Justice Layden-Stevenson limited the meaning of the word “use” in
section 4(1) of the Act and the relevant legislation to oral speech. He
suggests that it includes also the right to make written submissions, or
present written material in either official language as an integral part of
one’s testimony.
[32]
A
careful reading of the first judgment does not warrant the appellant’s
interpretation. The first judgment and the authorities cited by the applications
judge do not suggest such a restriction.
[33]
In
all fairness, one has to read Justice Layden-Stevenson’s finding entirely. She
writes:
[36] … In
short, an individual has the choice of addressing the House in either
English of French. In the context of proceedings before Parliament, the word
“use” provides Mr. Knopf with the right to speak in the official language of
his choice. [emphasis added]
[34]
The
verb “to speak” refers to more than the faculty of speech. The Canadian
Oxford Dictionary, 2d ed., also defines it as:
… 2. transitive
a utter (words). b make known or communicate (one’s opinion,
the truth, etc.) in this way (never speaks sense). 3 intransitive
a […] hold a conversation (spoke to him for an hour, spoke
with them about their work). b mention in writing etc. (speaks of
it in his novel). c […] articulate the feelings of (another person
etc.) in speech or writing (speak for our generation). 4 intransive
a address; converse with (a person etc.) … .
[35]
Justice
Layden-Stevenson does not restrict the word “speak” to oral speech. Rather, she
states that subsection 4(1) of the Act provides the appellant with a right to
address the House in the language of his choice. She is of the opinion that the
appellant’s request that his documents be circulated does not fall within the
parameters of subsection 4(1) of the Act. For the following reasons, I agree
with her finding.
[36]
It
is trite law that language rights have to be interpreted purposively and liberally
(Doucet-Boudreau v. Nova Scotia (Minister of Education), [2003] 3
S.C.R. 3; Arsenault-Cameron v. Prince Edward Island,
[2000] 1 S.C.R. 3; R. v. Beaulac, [1999] 1 S.C.R. 768).
[37]
This
purpose is to be sought by reference to the character and the larger objects of
the Charter and the Act, the historical origins of the concepts enshrined, the manner
in which the right is expressed and the implications to be drawn from the
context in which the right is to be found, including other parts of the Charter
or the Act. (R. v. Big M Drug Mart Ltd, [1985] 1 S.C.R. 295 at
344; Reference Re Motor Vehicle Act (British Columbia), [1985] 2 S.C.R.
486 at 499-500; Peter W. Hogg, Constitutional Law of Canada, 2006
Student ed. (Toronto, Carswell, 2006) at 770; Henry Brun & Guy Tremblay, Droit
Constitutionnel, 4th ed. (Cowansville, Qc: Yvons Blais, 2002) at 929).
[38]
Subsection
4(1) of the Act reiterates the right first recognized by section 133 of the Constitution
Act and reaffirmed by subsection 17(1) of the Charter. These three sections
recognize the right of any person participating in parliamentary proceedings
“to use” (“d’employer”) English or French. Subsection 4(1) of the Act, as well
as subsection 17(1) of the Charter create a scheme of unilinguism at the option
of the speaker or writer, who cannot be compelled by Parliament to express
himself or herself in another language than the one he or she chooses (See MacDonald
v. City of Montreal, [1986] 1 S.C.R. 460 at para.60).
[39]
However,
in some other language rights provisions, such as subsection 20(1) of the
Charter and section 25 of the Act, the legislator chose the term “to
communicate” (“communiquer”). In my opinion, this is not accidental.
[40]
To
“communicate” presupposes interactions, bilateral actions between the parties.
The verb “to use” does not encompass such interaction. The right is unilateral:
one has the right to address the House of Commons in the official language of
his choice. In
the case at bar, Mr. Knopf made his opinion known on particular topics of
interest to the Committee and filed his documents. There stops his right under
subsection 4(1) of the Act.
[41]
I
do not read into subsection 4(1) of the Act any requirement for a Committee to
distribute documents to its members in one official language. Subsection 4(1)
of the Act provides the appellant with a right to address the Committee in the
language of his choice only. Once this right has been exercised, subsection
4(1) of the Act does not compel the Committee to act in a certain way with the
oral or written information provided to it.
[42]
Justice
Layden-Stevenson was right in finding that the distribution of documents does
not fall within the scope of subsection 4(1) of the Act. The right to use an
official language of choice does not include the right to impose upon the
Committee the immediate distribution and reading of documents filed to support
one’s testimony. The decision on how and when to treat the information
received from a witness clearly belongs to the Committee. I find, therefore,
that the appellant’s language rights were not infringed upon.
[43]
As
prescribed by section 81 of the Act, the Federal Court, as the «Court» defined
in section 76 of the same Part of the Act may, at its discretion, award costs
to the applicant. The Federal Court may exercise its discretion even when the
applicant has not been successful in the result if it finds that the
application under section 77 raised an important new principle in relation to
the Act (See Canada (Information Commissioner) v. Canada (Minister of
National Defence), [1999] F.C.J. No. 522 (C.A.) at paragraph 36; Bellemarre
v. Canada (A.G.), 2004 FCA 31, at paragraph 11-15 – leave denied, [2004]
S.C.C.A. No. 379).
[44]
Layden-Stevenson
J. exercised her discretion and the appellant failed to show cause for this
Court to intervene.
[45]
The
Attorney General asks for his costs following this appeal in accordance to Rule
400, Federal Courts Rules, S.O.R./98-106.
[46]
I
propose to dismiss the appeal without costs as far as the Speaker is concerned
and with costs against the Attorney General.
“Johanne
Trudel”
“I
agree
Robert Décary J.A.”
“I
agree
A.M. Linden J.A.”
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