AJEFO Conference 2019 Panel 1: Language Rights

Posted: 07/10/2019

– Geneviève Proulx

Divorce Act: an update

The annual conference on language rights began with good news for members of Canada’s official language communities who are involved in divorce proceedings. On June 20, 2019, the Senate unanimously approved Bill C-78 which now provides for the addition of provisions to the Divorce Act that guarantee the language rights of Francophones and Anglophones living in minority communities in Canada. As a result, individuals will now have the right to use the official language of their choice throughout the country before trial courts.

This announcement reinforces the history of language rights in Canada, which the panel discussed. In several provinces, the use of French in civil matters is restricted, as is the case in British Columbia where French is prohibited in this type of proceeding by the British Parliament’s 1731 Act. Newfoundland, Prince Edward Island and Nova Scotia do not have language legislation before the courts in civil matters. There are only two provinces where French and English can be used with state responsibility: Ontario and New Brunswick. The new provisions will enter into force gradually, supported by a budget of $20 million over five years which may not seem significant at first glance, but is encouraging, considering that there was no funding before. It should be noted that this amount covers all the provisions of the Act, not just those related to French.

Just as section 530 of the Criminal Code has opened doors for language rights lawyers, this measure will create opportunities for divorce law. In addition, the fact that the law is being amended to allow divorce in French sends a strong message about the importance of the culture and language of Francophone minorities.

However, some provinces still do not have resources for French. It is necessary to allow the appropriate amount of time, depending on the number of Francophones who will try to make use of the new legislation, to hire and train bilingual staff. This will determine the effective date of these new rights from one province to another.

Maazrani and Bessette

Bessette v. British Columbia (Attorney General), 2019 SCC 31: In this decision where the Commissioner of Official Languages of Canada and the Fédération des associations de juristes d’expression française de common law appeared as interveners, the defendant, Joseph Roy Éric Bessette, was charged with a provincial offence related to driving in British Columbia. He requested to be tried in his language (French) on the basis of section 530 of the Criminal Code which grants the right to be tried by a provincial court judge who speaks the official language of the accused. The Crown challenged the defendant’s request, arguing that English is the only language used in the prosecution of provincial offences in British Columbia. The judge rejected this argument; an appeal was then dismissed by the Court of Appeal. Finally, the Supreme Court of Canada agreed with Mr. Bessette, explaining that section 530 requires the judge to “order” that the defendant be tried in French per the defendant’ request, provided that the request is made within the prescribed time limit. The Supreme Court upheld the fundamental right to French established in R. v. Beaulac. The Court said that the violation of this right caused “significant harm” and created a demand for service. The Crown eventually dropped the charges against Mr. Bessette.

Mazraani v. Industrial Alliance Insurance and Financial Services Inc., 2018 SCC 50: This tax court case was the subject of a Continuing Professional Development (CPD) session at the Law Society in March 2019. It dealt with, among other things, the judge’s responsibility to ensure that language rights are respected. It also addressed the lawyer’s responsibility to advise clients on the use of the language of their choice and also highlighted the language used in the testimony of witnesses. They have a duty to communicate clearly with the court, but they must also defend the interests of their clients. Finally, the decision dealt with remedy for violations. The basis of effectiveness on which the trial proceeded in English without an interpreter, even though the parties, including the lawyer did not communicate well in that language, hindered the quest for justice.

Five discussion forums

In March 2019, Mélanie Joly, the Minister of Tourism, Official Languages and Francophonie, announced consultations on the modernization of the 30-year old Official Languages Act through five discussion forums. The first forum was held in Moncton, Ontario, and focused on the promotion of culture and bilingualism. The discussions focused on the importance of culture for official language minority communities in order to encourage all Canadians to learn their second official language. To promote Canada’s bilingualism internationally, the Act must clearly indicate to new immigrants that they can integrate in French. The implementation of a five-year plan was recommended by the Commissioner of Official Languages to modernize the Official Languages Act. The consultations in Ottawa focused on the responsibility for enforcement which should be centralized at the Treasury Board, given its binding powers, and that the obligation should be extended to all of Canada. It was suggested that the obligation of judges to be fluent in both languages be introduced by eliminating the exemption from section 16 of the Official Languages Act. In Lennoxville, Quebec, the consultations focused on the possibility of increasing the capacity of federal international offices to ensure full bilingualism. There was discussion about adding language qualifications for ambassadors, and improving the retention of Francophone immigrants. In Edmonton, Alberta, there were discussions about strengthening the Minister’s powers under Part 7 of the Act; creating language clauses in each federal transfer for health, education and justice; adapting the law to the realities of the various official communities, including Aboriginal communities; and imposing fines on offending corporations. In Vancouver, B.C., there was talk of making digital services bilingual by using videoconferencing, for example; policies to support the linguistic security of official language minorities; and the creation of an advisory committee made up of minority youth.

Francophonie Act, 2019

In June 2019 in Ontario, Ottawa-Vanier MPP Nathalie Des Rosiers, who is retiring from politics, introduced Private Member’s Bill 126 to modernize the French Language Services Act, in which she proposed active offer, the designation of the entire province for bilingual services, the restoration of the Office of the French Language Services Commissioner and other important points. To be continued.

Geneviève Proulx is the French Language Service Advisor at the Law Society of Ontario. Geneviève is responsible for the provision of French translation and communications within the External Relations and Communication Department.