Societe des acadiens et acadiennes du Nouveau-Brunswick Inc v Canada: An Unequivocal Holding on Charter Bilingualism

In October of 2007, Matthew Shogilev and Jakki Warkentin of TheCourt.ca engaged in a compelling debate over the Federal Court of Appeal’s [“FCA”] holding in Societe des acadiens et acadiennes du Nouveau-Brunswick Inc v Canada, 2006 FCA 196. The case arose as a result of the April 26, 2000 issuance of a speeding ticket to Marie-Claire Paulin, a French-speaking citizen of New Brunswick. The attending RCMP officer was unable to communicate with Ms. Paulin in French, and made no attempts to do so. Ms. Paulin paid the imposed fine that day, but later brought a declaratory action against the federal Crown to have her right to police services in the official language of her choice affirmed under section 20(2) of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982 [“Charter“]. This section reads:

20. (2) Any member of the public in New Brunswick has the right to communicate with, and to receive available services from, any office of an institution of the legislature or government of New Brunswick in English or French.

The Societe des Acadiens et Acadiennes du Nouveau-Brunswick were joined in Ms. Paulin’s action at the Federal Court, where they argued that the New Brunswick Royal Canadian Mounted Police (“RCMP”) were subject to the language obligations imposed on the province in this Charter section. The RCMP responded that s. 20(2) was not applicable because it is a federal institution, and the section at issue only applied to New Brunswick institutions.

The Federal Court agreed with the appellants, holding that the RCMP was an institution of the New Brunswick government for the purposes of s. 20(2), as it functioned as a provincial police force. However, the Federal Court of Appeal set aside this judgment on the basis that the RCMP could not assume the province’s constitutional language obligations. Richard C.J. of the FCA held that only the province is responsible for discharging the language obligations under this section; as such, the proceedings should have been brought against the province alone, at the New Brunswick Court of Queen’s Bench.

When this case was about to be heard by the Supreme Court of Canada (“SCC”), Matthew and Jakki took the opportunity to voice their divergent opinions on the FCA’s holding. Matthew argued against the FCA’s findings [(1 October 2007) online: <www.thecourt.ca>]. He thought that the decision effectively permitted the federal government to contract with provinces, perform services that fell short of Charter requirements, and then escape liability due to the provincial source of its jurisdiction. Conversely, Jakki advocated for the holding at the FCA, arguing that the party owing to the contractual obligation was the province, as principal, rather than the RCMP as agent [(17 October 2007) online: <www.thecourt.ca>]. In her view, and in the opinion of the FCA, it was the responsibility of the principal to ensure that its constitutional obligations were addressed. On Friday, the SCC weighed in, and allowed the appeal on grounds that echo Matthew’s critique.

The question before the SCC in Societe des acadiens et acadiennes du Nouveau-Brunswick Inc v Canada, [2008] 1 SCR 383 was whether, by contracting with the province to provide police services, the federal RCMP was bound by the rules respecting language in New Brunswick, or was required to meet only the federal official languages standards. The appellants’ position was that since the RCMP had taken the responsibility for a function of the New Brunswick government, it must have assumed the same obligations as the province. These obligations include those elaborated under s. 20(2) of the Charter. Conversely, the respondent relied on the principle of constitutional accountability, arguing that New Brunswick was constitutionally responsible for the administration of justice. The province cannot evade its constitutional obligations by alleging that its delegate, the RCMP, has assumed them; this would essentially render the RCMP both a federal and provincial institution. Rather, the respondent argued that the constitutional obligations of the RCMP are federal. Additional obligations can only be contractual, and the agreement with New Brunswick in this regard included no specific language obligations for the RCMP to uphold.

The SCC’s decision, delivered by the soon-to-be-retired Bastarache J., first inquired into the institutional obligations of the RCMP. Section 20(1) of the Royal Canadian Mounted Police Act, RSC 1985, c R-10, authorizes the RCMP to enter into agreements with the provinces and enforce their laws. Bastarache J. noted that provincial laws should also be enforced in a manner consistent with the Constitution, and that this does not complicate the fact that the RCMP is a federal institution.

Correlatively, section 2(2) of the Police Act, SNB 1977, c P-9.2, provides that each RCMP member is authorized by the New Brunswick legislature to administer justice in that province. Bastarache J. clarified that each member must also comply with s. 20(2) of the Charter, since the RCMP’s administration of justice performs the role of an enumerated “institution of the legislature or government” of New Brunswick. This means that while New Brunswick remains responsible for administering justice in accordance with its s. 20(2) language obligations, the RCMP may still have its own language requirements to meet in fulfilling its New Brunswick mandate.

These language requirements were not extinguished by the agreement between the province and the RCMP. The SCC examined the content of the agreement and noted that the question on appeal was actually tied to the provincial government’s Minister of Justice. In article 3.3 of the agreement, this Minister was responsible for setting “the objectives, priorities and goals of the Provincial Police Service.” Accordingly, Bastarache J. found that the institution in question on the appeal was an institution of the New Brunswick government, as the Minister of Justice discharged the province’s constitutional obligations through the RCMP members being designated as New Brunswick peace officers. Due to this arrangement, Bastarache J. concluded that the provision of police services by the RCMP must be consistent with the obligations of the province arising under s. 20(2) of the Charter.

The SCC then cast their net more broadly, examining the RCMP’s general government functions that are subject to constitutional obligations, and how these functions operate in the context of this appeal. According to Lamer J. (as he then was) in Slaight Communications Inc v Davidson, [1989] 1 SCR 1038, and Peter Hogg in The Constitutional Law in Canada, (Toronto: Carswell, 2007) , a legislature that delegates a power of compulsion to a body or person then transfers its Charter duties to the delegate as well. As the trial judge found that the ticketing RCMP officer, acting under the Motor Vehicle Act, RSNB 1973, c M-17, was performing a government function of the province, it became clear to the SCC that the RCMP adopted the Charter duties of the province in its functions. In New Brunswick, these duties include the provision of services in either English or French, under s. 20(2). Again, the SCC’s analysis belied a Charter obligation on behalf of the RCMP.

Finally, the SCC addressed the Federal Court of Appeal’s analysis that the RCMP’s obligations were contractual, not constitutional. These obligations, according to Bastarache J., are not mutually exclusive. Article 2.2 of the agreement specified that the RCMP, as the provincial police service, shall perform the duties of police officers and render services that are necessary to perform all duties and services in relation thereto, under the laws of Canada or the province. Similarly, article 4.1 was explicit in requiring that the Commanding Officer act under the direction of the Minister in aiding the administration of justice in the province, carrying into effect the laws in force therein. From the language of these articles, the SCC concluded that the parties intended that the RCMP’s mandate in the province include the language duties in relation to s. 20(2), providing citizens with bilingual service. As bilingualism is a constitutional requirement, the SCC saw no need to expressly provide for the duty in the agreement, countering the respondent’s argument that such obligations would have to be set out in the contract.

Ultimately, the SCC allowed the appeal and declared that s. 20(2) of the Charter required the RCMP to provide services in both official languages when acting as a provincial police force, pursuant to their agreement with the New Brunswick government. Matthew’s concern that the federal government could appeal to provincial jurisdiction when breaching Charter language rights was clearly shared by the SCC. In thwarting this possibility, the SCC has made a definitive statement on the role of federal institutions in provincial capacities, as well as solidifying the Charter’s protection of New Brunswick bilingualism.