Katz, Leslie

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York University, Osgoode Hall Law School

Osgoode Hall Law JournalVolume 11, Number 3 (December 1973) Article 10Are There Constitutionally Guaranteed LanguageRights in Criminal Code Proceedings?Leslie KatzFollow this and additional works at: http://digitalcommons.osgoode.yorku.ca/ohljArticleThis Article is brought to you for free and open access by the Journals at Osgoode Digital Commons. It has been accepted for inclusion in Osgoode HallLaw Journal by an authorized editor of Osgoode Digital Commons.Citation InformationKatz, Leslie. "Are There Constitutionally Guaranteed Language Rights in Criminal Code Proceedings?." Osgoode Hall Law Journal 11.3(1973) : 545-550.http://digitalcommons.osgoode.yorku.ca/ohlj/vol11/iss3/10ARE THERE CONSTITUTIONALLYGUARANTEED LANGUAGE RIGHTS INCRIMINAL CODE PROCEEDINGS?By LESLIE KATZ*The courts of the province of Quebec conduct most of their business inthe French language. Section 133 of the British North America Act,1 how-ever, provides in part,Either the English or the French language ... may be used by any Person ... in... any of the Courts of Quebec.The courts of the provinces other than Quebec conduct most of theirbusiness in the English language. In the prairie provinces, however, it appearsthat there remain in force legislative provisions enacted by Parliament shortlyafter Confederation which form part of the constitutions of those provincesand which confer the same right on witnesses in their courts as does theportion of s.133 quoted regarding witnesses in Quebec courts.2What is the nature of this right? It cannot be merely the right to answerquestions as a witness in either English or French, which answers will thenbe translated into the language which the court normally uses. It must bethe right to have the court before which the witness is testifying understandhim directly, without the intervention of an interpreter. Thus the provisionsmust implicitly require courts capable of understanding both English andFrench.3Let us assume that this constitutional right were repealed by the fourprovinces concerned as an exercise of their legislative authority to amendtheir own constitutions 4 or that the other six provinces amended their con-stitutions so as to include a provision restricting the right of witnesses before* Member of the Manitoba Bar, Lecturer, Faculty of Law, University of Sydney,Sydney, Australia.1 1867, 30 & 31 Vict., c.3(U.K.).2 As to the constitutions of Alberta and Saskatchewan, see the Report of the RoyalCommission on Bilingualism and Biculturalism, Vol. I, at 52, which refers to a federalstatute of 1877 incorporated by reference into the constitutions of these two provinceswhen they were created in 1905. As to the constitution of Manitoba, a comparison ofthe wording of the Manitoba Act, S.C. 1870, c.3, s.23, and the Official Language Act,R.S.M. 1970, c.0-10, indicates that the latter statutes ancestor of 1890 did not attemptto remove the right of witnesses to use French orally in proceedings in provincial courts.3 See Miller & Kyling v. The Queen (1970), 10 D.L.R. (3d) 785 (S.C.C.). Quare,whether this requirement also implicitly includes juries or merely refers to judges.4 Section 92(1) of the B.N.A. Act, 1867, 30 & 31 Vict., c.3 (U.K.), would pre-sumably allow this. As to Quebec's legislative authority in this matter, see the viewsof the Gendron Commission as reported in Le Devoir, February 14, 1973 at 18. In1890, the Manitoba legislature repealed the constitutional right to use French in docu-ments in provincial courts. See the Official Language Act, R.S.M. 1970, c.0-10.OSGOODE HALL LAW JOURNALtheir courts to the use of one language only.5 Could Parliament impose or,in some cases, reimpose on those courts the duty to allow witnesses to testifyin either English or French?It might be possible for Parliament to do so as an exercise of its generalpower, if it were held that the matter of the language rights of witnesses inprovincial courts, though traditionally a matter for the provinces, had achievednational importance.6In the absence of this holding, it might be argued that Parliament hadthe authority to deal with the matter, at least insofar as it concerned federalproceedings in provincial courts, as an exercise of its power to legislate inrespect of procedure in federal matters heard in provincial courts.7 But wouldfederal legislation of this sort be procedural in essence or would it rather belegislation in relation to the constitutions of the provinces or in relation tothe constitution of their courts?8 Since the conferring of language rights onwitnesses in court proceedings necessarily imposes duties on those courtswhich may require a change in the nature of the people presiding in them,the question is a difficult one.9Furthermore, Parliament is confronted by the prohibition against itsamending "the Constitution of Canada... as regards the use of the Englishor French language . . .".1 This prohibition's meaning is obscure, though, ifit could divined, it might be found to prevent legislation of the sort suggestedabove. The B.N.A. Act, in s.133, now provides for the use of either Englishor French by witnesses in federal courts and it could be argued that to extendthis right to witnesses in federal matters before provincial courts wouldamount to an amendment of "the Constitution of Canada."5See The Judicature Act, R.S.O. 1970, c.228, s. 127. Quare, whether this provisionis a part of the province's "Constitution".6 This view of the matter was taken by Limerick, J.A., in Reference re OfficialLanguages Acts of Canada and New Brunswick (1973), 5 N.B.R. (2d) 653 at 674(N.B.S.C., App. Div.).7 See Reference re Official Languages Acts, id., upholding, on this basis, the OfficialLanguages Act, R.S.C. 1970, c.0-2, s.11. An appeal from this decision win be heardby the Supreme Court of Canada, sub nom. Jones v. A.-G. Canada and A.-G. NewBrunswick. See Supreme Court of Canada Bulletin, January 12, 1973, at 3.8 This latter matter is assigned to the provincial legislatures by s.92(14) of theB.N.A. Act, 1867, 30 & 31 Vict, c.3 (U.K.).0 If the argument against federal legislative authority is accepted, ss. 555-56 of theCriminal Code, R.S.C. 1970, c. C-34, regarding the linguistic abilities of jurors in Cri-minal Code trials in Quebec and Manitoba may be ultra vires. But see R. v. Preusantanz,[1936] 2 D.L.R. 421 (Man. C.A.). If the argument is rejected, the following argumentin this note will have been unnecessary unless the federal Official Languages Act wererepealed.10 Section 91(1) of the B.N.A. Act, 1867, 30 & 31 Vict., c. 3(U.K.).[VOL. 11, No. 3Language Rights in Criminal Code ProceedingsIn the face of these obstacles to Parliament's legislating on languagefights of witnesses in provincial courts, obstacles which may ultimately befound by the courts to be insurmountable, is there any way the result desiredby Parliament can be obtained, assuming uncooperative provincial legisla-tures? It is submitted that, at least in respect of Criminal Code proceedingsin the provincial courts,"1 there is an argument that can be made whichwould lead to the desired result. The argument does not depend on federallanguage legislation, but on a willingness on the part of the courts to makeinferences from legislation of long standing, inferences of the sort they havepreviously been prepared to make.12The argument has three parts: first, that Parliament can create federal,criminal courts; secondly, that as was mentioned above, s.133 of the B.N.A.Act provides,Either the English or the French language ... may be used by any Person... in... any Court of Canada established under this Act...The third part is that Parliament, in conferring jurisdiction to hear trialsof charges under the Criminal Code on provincial courts, has transformedthem for the purpose of exercising that jurisdiction into federal criminal courtsso that the portion of s.133 just quoted is applicable in them.First, can Parliament create federal criminal courts? Section 92(14) ofthe B.N.A. Act enables the provincial legislatures "exclusively" to make lawsin relation to "the Constitution ... of Provincial Courts, both of Civil and ofCriminal Jurisdiction, and including Procedure in Civil Matters in thoseCourts." Does this provision looked at in isolation indicate an intention torepose in the provinces the exclusive power to create criminal courts? I sub-mit that it does not. It only confers on the provinces the exclusive authorityto create provincial courts, which courts are to be capable of exercising bothcivil and criminal jurisdiction. This in no way detracts from any potentialParliamentary power to create federal courts of criminal jurisdiction. Theexercise of such an authority would in no way render the provincial authoritynugatory, since the provinces would still be the only level capable of creatingprovincial courts.What is the source of the Parliamentary authority to create federalcriminal courts? It is s.101, which enables Parliament to provide "for theEstablishment of any additional Courts for the better administration of the11 The Code, R.S.C. 1970, c. C-34, confers jurisdiction on provincial courts. See s.2.12 The numbers of people of French mother tongue outside Quebec and of Englishmother tongue inside Quebec are almost equal. There are just less than 800,000 in eachgroup. Statistics Canada, News Release on Census '71, April 24, 1972, at 3. All of thesepersons, those most likely to require the right for which I argue, would be aided by myargument if the provincial position ultimately prevails.1973]OSGOODE HALL LAW JOURNALLaws of Canada.' 3 Should the above interpretation of s.92(14) be incorrectand that provision be properly interpreted in isolation as intending to conferthe authority to create all criminal courts on the provinces alone, its forcewould be overcome by that of s.101, which not only appears later in thestatute, but, vastly more importantly, contains a non obstante clause.It has been argued that s.91(27) in some way resolves this questionon the side of the provinces, guaranteeing them exclusive authority to createcriminal courts.14 I would submit that this argument is misconceived. Section91(27) provides... ([Nlotwithstanding anything in this Act) the exclusive Legislative Authorityof... Parliament... extends to ... The Criminal Law, except the Constitutionof Courts of Criminal Jurisdiction...It is submitted that this provision merely amounts to a recognition thatParliament's authority to create criminal courts is not exclusive. It does notimply that Parliament has no such power at all.The view expressed above regarding Parliament's authority to createfederal criminal courts has commended itself to courts,15 commentators 6 and,indeed, to Parliament itself..7 As Taschereau, J., said in Valin v. Langlois,'8The constitution, maintenance and organization of Provincial Courts of criminaljurisdiction is given to the Provincial Legislatures ... yet, cannot Parliament, in13 It is interesting to speculate on the possibility that there is a difference in themeaning of the phrase "provide . . . for the Establishment of . . . Courts" in s.101 andthe phrase "make laws in relation to . . . The Constitution . . . of . . . Courts" ins.92(14). Section 101 itself may suggest this. It declares that, with respect to "a Gen-eral Court of Appeal for Canada," "Parliament... may... provide for... [its] ...Constitution," -but that with respect to "Courts for the better Administration of theLaws of Canada," "Parliament may provide for ... [their] ... Establishment." Thedifficulty with this suggestion of a difference in meaning is that if "establishment" isnot synonymous with "constitution", what can "establishment" mean? Presumably, thephrases are synonymous with each other and both connote the ability to create courts.See, e.g., the usage of "constitute" and "establish" in the Shorter Oxford EnglishDictionary (3d. ed. rev. with addenda). In any event, no court, so far as I know, hasever commented upon this curious difference in wording and, thus, s. 101 must be takento allow Parliament to create courts just as s. 92(14) permits the provincial legislaturesto create courts.14 See McDonald, Constitutional Aspects of Canadian Anti-Combines Law En-forcement (1969), 47 C.B.R. 161 at 220 ff.15 See Valin v. Langlois (1880), 3 S.C.R. 1 at 75; R. v. Wipper (1902), 5 C.C.C.17 (N.S.S.C.) and Ex p. Lebel (1910), 16 C.C.C. 363 (N.B.S.C.). There are contrarydicta in two of the judgments in the Supreme Court of Canada in the Board of Com-inerce case, but the point was not dealt with by the Judicial Committee on appeal.See (1920), 60 S.C.R. 456, af'd., E1922] 1 A.C. 191. These dicta did not refer to thecomment in the Valin case or to the Lebel case (in which the ratio was that Parliamentcould create federal criminal courts).16 See Laskin, Canadian Constitutional Law (3d ed..rev. Toronto: Carswell Co.,1969) at 818. Reference re Privy Council Appeals, [1947] A.C. 127 is relied on. Seeparticularly Lord Jowitt, L.C.'s comments in that case at 153.17 See the Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 65 (Item 9), inwhich the Federal Court is constituted a criminal court for the purpose of certainproceedings under the Combines Investigation Act, R.S.C. 1970, c. C-23.18 Valin v. Langlois, supra, note 15 at 75.[VOL. 11, NO. 3Language Rights in Criminal Code Proceedingsvirtue of s.101 of the Act, create new courts of criminal jurisdiction and enactthat all crimes, all offences shall be tried exclusively before these new courts? Itake this to be beyond controversy.To proceed with the more difficult part of the argument now, it is con-tended that any provincial court has been, when exercising jurisdiction underthe Criminal Code, thereby established as a court of Canada under s.101 ofthe B.N.A. Act so as to render s.133 applicable therein.19 Authority for thisproposition is to be found primarily in the case of Valin v. Langlois, a por-tion of which has just been quoted, a decision of the Supreme Court of Can-ada. In that case it was held that Parliament, in conferring on provincialcourts the jurisdiction to try actions with respect to controverted federal elec-tions, had thereby created, respecting the exercise of that jurisdiction, federalcourts.Leave to appeal from this decision was denied by the Judicial Commit-tee of the Privy Council.2 0 Lord Selborne, who delivered the opinion of theBoard on the application, stated2l that it had been suggested... that it has seemed fit to the Parliament of Canada to confer the jurisdictionnecessary for the trial of election petitions upon Courts of ordinary jurisdictionin the provinces, and it is said that although the Parliament of Canada might haveprovided in any other manner for those trials, and might have created any newCourts for this purpose, it could not commit the exercise of such a new jurisdic-tion to any existing Provincial Court. After all their Lordships have heard ....they are at a loss to follow that argument, even supposing that this were not intruth and in substance the creation of a new Court.Thus the Judicial Committee agreed with the Supreme Court of Canadathat, in conferring jurisdiction in federal election matters on provincial courts,Parliament had created them federal courts for the purpose of exercisingsuch jurisdiction. It is submitted that, by using the method the SupremeCourt of Canada did in the Valin case, one could come to the conclusion thatin conferring jurisdiction in the Criminal Code on provincial courts, Par-liament had thereby established them as federal courts under s.101 for thepurpose of exercising that jurisdiction, in which case the language guaranteein s.133 would be applicable in them.After all, let us note that the Criminal Code contains, as did the Elec-tions Act in the view of Ritchie, C.J., in the Valin case, 22all necessary and suitable provisions to enable them [the courts], and the judgesthereof, effectually to exercise such jurisdiction, not only with reference to theprinciples, but also to the rules and practice by which they should be governed...19 An argument of this sort was apparently made and rejected in Ex p. Poulin(1968), 69 D.L.R. (2d) 526 (B.C.S.C.), affd. (1968), 1 D.L.R. (3d) 239 (B.C.C.A.).The judgments, however, make no reference to the authorities which follow and so thedecision may have been made per incuriam in any event.20 (1879), 5 App. Cas. 115.21Id., at 119, emphasis added.22 Valin v. Langlois, supra, note 15 at 30.1973]OSGOODE HALL LAW JOURNALIn the case of the election courts, the Chief Justice continued,23This is more especially noticable with reference to the enactments under theheadings "interpretation clauses," "procedure," "jurisdiction and rules of court,""reception and jurisdiction of the judge," "witnesses," and the provision as to whomay practice as agent or attorney, or as counsel in such courts in the case of suchpetitions, and all matters relating thereto before the court or judge.The Criminal Code as well contains parts or sections dealing wholly orpartly with all of the same matters.24 Therefore, the conclusion argued forcould reasonably be made.25There are obviously difficulties with this argument which attempts toresolve a conflict caused by the federal use of provincial courts merely byelevating these courts above the struggle. Among them may be offered thesuggestion that the wording of the Official Languages Act, Parliament's ownattempt to resolve the problem of the language rights of witnesses in federalproceedings in provincial courts, appears not to contemplate that the trans-formation for which I have argued took place. In response to this, one mightargue the impossibility of interpreting the intention of Parliament in 1892,when it first enacted the Code, by the use of legislation, perhaps ultra viresin any event, which it enacted in 1969. Yet this response, and others tofurther objections, do not in any way guarantee the acceptance of the argu-ment, should it become necessary to make it. All that can be said is that ifit were necessary to make it, its acceptance would not require the breakingof entirely new ground by the judiciary, that it would extend to all a right nowavailable only to some and that it would guarantee this rather meagre rightagainst provincial repeal.2 3 Id., at 31-32.24 See Criminal Code, R.S.C. 1970, c. C-34, especially Parts I, XII through Xand XXIV.25 See also R. v. Wipper, supra, note 15, in which, relying on Valin v. Langlois,supra, note 15, it was held that Parliament, in conferring jurisdiction on provinciallyappointed justices of the peace to hear prosecutions under the Canada Temperance Act,had thereby established them as federal courts under s. 101 of the B.N.A. Act for thepurpose of exercising that jurisdiction. See also a case comment by "B.L." (now Laskin,J., of the Supreme Court of Canada?), (1945), 23 C.B.R. 159. "In The British Tradi-tion in Canadian Law (London: Stevens and Sons, 1969) at 114, the author, Laskin,J. A. (as he then was), declared that "provincial courts . . . endowed with federaljurisdiction . . . may be considered, pro tanto, as federal courts in so far as theyadminister federal law." If the argument I have made regarding the transformationof courts were accepted and if it were accepted that s.133 of the B.N.A. contemplatesbilingual juries as well as courts, then the provisions of the Criminal Code referred to innote 9, supra, regarding the linguistic abilities of jurors are ultra vires, not for thereasons mentioned in the text accompanying note 9 but because they contravene s.91(I)of the B.N.A. Act by impairing the rights conferred by s.133.[VOL. 11I, NO. 3

Are There Constitutionally Guaranteed Language Rights in Criminal Code Proceedings?

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Are There Constitutionally Guaranteed Language Rights in Criminal Code Proceedings?

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