Belair v. Canada (Solicitor General), docket T-1413-98

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docket T-1413-98

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Date: 20000215

Docket: T-1413-98

Before: The Honourable Mr. Justice Pelletier

IN VIEW OF: the Constitution Act, 1867, s. 133

AND IN VIEW OF: the Constitution Act, 1982, ss. 16 and 19

AND IN VIEW OF: the Official Languages Act, R.S.C. 1867, c. 31

AND IN VIEW OF: the Corrections and Conditional Release Act and related regulations.

Between:

STEPHEN GERMAINE BELAIR

Applicant

- and -

SOLICITOR GENERAL OF CANADA

Respondent

REASONS FOR ORDER

PELLETIER J.

[1] At the conclusion of the hearing I rendered judgment orally. The following are the reasons for my decision, which were reviewed to correct grammar and make them more readable.

[2] The applicant Belair was charged with two disciplinary offences within the meaning of s. 40 of the Corrections and Conditional Release Act, R.S.C. 1985, c. C-44.6.

[3] It appeared from the affidavits and the transcript that the applicant asked that the first hearing, held on May 20, 1998, be postponed so he could obtain the assistance of counsel. He also said that he asked that the proceeding go forward in French before a president who understood French without the assistance of an interpreter, as required by s. 16 of the Official Languages Act, R.S.C. 1985 (4th Supp.), c. 31 (hereinafter "the Act"). The particulars of the request he made were not disclosed, which creates some doubt on the point in view of the fact that Len Horisky's affidavit, filed in support of the respondent, indicates that the request for a president who understood French without the aid of an interpreter was made at the second hearing for the first time.

[4] In any event, it was admitted that the request was made at the second hearing of the tribunal, which was held on June 10, 1999, and was denied. The applicant was found guilty of one of the offences with which he was charged and was ordered to pay a fine of $25.

[5] The applicant asked the Court to quash the tribunal's decision on the ground that he was entitled to the hearing he sought under s. 16 of the Act.

[6] Section 16 provides that any federal tribunal that hears a case must understand "French without the aid of an interpreter" "if French is the language chosen by the parties for proceedings conducted . . . in any particular case".

[7] Section 3 of the Act states that a federal court is any "body that carries out adjudicative functions and is established by or pursuant an Act of Parliament". It was not in dispute that the inmate disciplinary tribunal was created pursuant to a federal statute, the Corrections and Conditional Release Act.

[8] The only question is whether this tribunal "carries out adjudicative functions", which is the phrase that appears in the English version of the Act.

[9] If this were the first time that the question had arisen, I would consider that the disciplinary tribunal carried out adjudicative functions because of the consequences which the decision of the tribunal entails for inmates, such as a fine, restrictive conditions and so on.

[10] However, the Supreme Court and the Federal Court of Appeal have held that this type of tribunal is an administrative tribunal and so is not a tribunal that carries out adjudicative functions. I refer to [1978] 1 S.C.R. 118">Martineau v. Matsqui Institution Disciplinary Board, [1978] 1 S.C.R. 118 ([1978] 1 S.C.R. 118">Martineau No. 1), [1980] 1 S.C.R. 602">[1980] 1 S.C.R. 602 ([1978] 1 S.C.R. 118">Martineau No. 2.) and Hanna v. Mission Establishment, [1995] F.C.J. No. 1370 (F.C.A.).

[11] Mr. Boudreau maintained that the result of Beaulac v. R., [1999] 1 S.C.R. 768, is that for the purposes of the Official Languages Act a disciplinary tribunal is to be regarded as a tribunal that carries out adjudicative functions so as to give effect to the constitutional guarantees of equality of the official languages.

[12] The problem that arises is that the Act states that the right claimed by the applicant is only available before certain tribunals, which puts in question the classification of the tribunals. This question has already been decided and I do not see how the application for hearing in one language or another could change the nature of the tribunal.

[13] Accordingly, a disciplinary tribunal is not a tribunal which carries out adjudicative functions within the Official Languages Act, and the application for judicial review must be dismissed.

J.D. Denis Pelletier

Judge

Winnipeg, Manitoba

February 15, 2000

Certified true translation

Martine Brunet, LL. B.

FEDERAL COURT OF CANADA

TRIAL DIVISION

NAMES OF COUNSEL AND SOLICITORS OF RECORD

COURT FILE No.: T-1413-98

STYLE OF CAUSE: STEPHEN GERMAINE BELAIR v. SOLICITOR GENERAL OF CANADA

PLACE OF HEARING: Winnipeg, Manitoba

DATE OF HEARING: February 14, 2000

REASONS FOR ORDER BY: PELLETIER J.

DATED: February 15, 2000

APPEARANCES:

Normand Boudreau for the applicant

Cynthia C. Myslicki for the respondent

Department of Justice Canada

310 Broadway, Room 301

Winnipeg, Manitoba R3C 0S6

SOLICITORS OF RECORD:

Booth, Dennehy, Ernst & Kelsch for the applicant

Attorneys and Notaries

387 Broadway

Winnipeg, Manitoba R3C 0V5

Morris Rosenberg for the respondent

Deputy Attorney General of Canada