The Infamous $54 Traffic Ticket

Gilles Caron, the Francophone truck driver who has [been] pleading his cause in Alberta courts since 2006, received a favourable ruling from Provincial Court Judge Leo Wenden recently. In 2003, Caron received a $54 traffic ticket for making an unsafe left turn. He proceeded to ask for a French hearing, but was denied under the Languages Act [1] that revoked these rights in Alberta.[2]Judge Wenden found the law unconstitutional, and Caron was cleared of the traffic offence. According to defence lawyer Rupert Beaudais, “the case was never about a minor traffic offence. This case was about challenging the constitutional validity of Alberta’s language laws, which abolished all French language rights.” [3]Lise Routhier Boudreau, the President of the Fédération des communautés francophones et acadienne du Canada, believes that the Caron decision is a step in the right direction for minority language rights in the country, adding to the recent victories of Justin Bell in Saskatchewan and Marie-Claire Paulin of New Brunswick against the RCMP.[4]

Edmund Aunger, a University of Alberta political science professor, was a key witness in the trial. He paid particular attention to new records showing that, in 1870, Rupert’s Land as the western region was then known, only agreed to join the confederation if protection of French language rights was guaranteed.[5]Relations between the province of Alberta and its French-speaking citizens have historically been complicated, leading former premier Don Getty to famously announce that “Albertans believed in bilingualism by choice, not by law.” [6]

Crown Prosecutor Teresa Haykowsky won a three-month stay, which gives the government the option of either appealing the case, or taking action. It is possible that if Caron is successful in higher levels of court, including the Supreme Court of Canada, Alberta could be forced to translate all the laws of the province into French, and make every service available in both official languages.[7] Many language rights advocates in the province are asking that serious consideration be given to renegotiating the Act, including Léo Piquette, the former MLA who is most remembered for the event in 1987 where he was told to stop speaking French in the legislature by the Speaker. [8] Greg Clarke, the Executive Director of the Centre for Constitutional Studies, sums up the decision that the government of Alberta is now faced with: “if the government chooses to appeal the case it will be years before we have a clear decision about what this means. If the government accepts the decision and decides to do what they have to do, presumably that means: start translating.” [9]

Of note this may have been the longest trial in Alberta Court history.
[1] Languages Act, R.S.A. 2000, c. L-6 [Act].
[2] Karen Kleiss, Edmonton Case Tests Language Law, Edmonton Journal, 3 July 2008.
[3] Ibid.
[4] Radio-Canada, “Décision saluée par la FCFA” (3 July 2008).
[5] Karen Kleiss, English-Only Laws Violate Historical Commitments, Expert Says, Edmonton Journal, 3 July 2008.
[6] Supra note 2.
[7] Ibid.
[8] Karen Kleiss, Ruling Reopens Language Act Debate, Edmonton Journal, 4 July 2008.
[9] Ibid.


Expression v. Defamation - The Latest from the Supreme Court

Rafe Mair is known for being an outspoken, and sometimes courageously critical radio talk show host in Vancouver. This outspokenness resulted in an eight year legal battle with Kari Simpson, a religious activist with whom Mair engaged in a debate about the purpose and usefulness of introducing homosexual education into schools. Mair submitted an editorial comparing Simpson to Hitler, members of the KKK and Skinheads. She proceeded to bring an action in defamation against Mair and WIC Radio Ltd.

At trial, the judge held that although Mair's comments were defamatory, the "fair comment" defense provided a full defense and dismissed Simpson's action. The Court of Appeal reversed the trial judge's decision on the basis that Mair's comment that implied that Simpson condoned violence were unfounded, so the fair comment defense could not be used. The case was further appealed to the Supreme Court. On June 27th, 2008, the majority of the Supreme Court held that the trial judge's decision should be restored, ending the eight year battle successfully for Mair.

In their reasons, the Supreme Court expressed that there is a public interest in limiting the availability of defamation actions in favour of freedom of expression: The availability of the claim of defamation should not act as a deterrent for people expressing themselves, particularly in the media. Whether the defamation action succeeds or not, the prospect of having to partake in a lengthy legal struggle after the defamation claim has been made acts as such a deterrent, and unduly infringes on the freedom of expression. At the same time, the tort of defamation which protects peoples' dignity and worth is also important, bearing in mind that being offensive may be insensitive, but it is not illegal. The court therefore sought the correct balance to ensure that both freedom of expression and the tort of defamation remain intact.

In doing so, they outline the four elements of the fair comment test:

            (a) the comment must be on a matter of public interest
            (b) the comment must be based on fact
            (c) the comment, though it can include inferences of fact, must be recognizable as a comment
            (d) the comment must satisfy the following objective test: could any person honestly express that opinion on the proved facts.

The onus is on the defendant to prove these elements. If proven, the plaintiff can still succeed if he or she can show that the comment was made out of a subjectively malicious motive. If this cannot be made out, then the tort of defamation cannot succeed.

In this case, the Supreme Court found that the elements of the fair comment test were made out, and there was no evidence to show that Mair was maliciously motivated in making his comment.

Sources:


Transformations in Funding for Sexual Reassignment Services

In 1998, Ontario’s previous Progressive Conservative government removed sexual reassignment surgery (SRS) from the list of covered procedures by the province. [1]Complaints were made to the Ontario Human Rights Commission, but in recent history, the Commission has largely deferred to the government. Presently, a motion is being made to amend the Ontario Human Rights Code [2] to explicitly support the rights of transsexuals and to guarantee that the cost of surgeries will be covered.[3]

Since 2008, the Ontario government has been set to re-instate funding for SRS. Approximately 8-10 surgeries will be funded per year.[4] While that number may be an accurate reflection of the number of surgeries that would be necessary per year, one advocate for transsexuals points out that there is a backlog of approximately 100-200 people who were unable to get surgery while the previous government was in power. It is uncertain whether these surgeries will also be covered.[5]

An Ontario Human Rights Tribunal hearing was held in 2005 in order to assess whether denying funding for surgery to transsexuals, who had already begun their transition when delisting occurred, was discriminatory.[6] This was the first case involving transsexual issues to be heard by the Ontario Tribunal. In 2006, the Tribunal decided that stopping a surgery mid-way through was discriminatory. However, the majority ruled that denying surgery to those who were not already under-going surgery does not amount to discrimination.[7] While the majority dealt only with the three cases of incomplete operations, Mary Ross Hendriks, Vice-Chair of the Ontario Human Rights Tribunal, found that denying funding to anyone seeking the surgery was contrary to the Ontario Human Rights Code and, therefore, discriminatory. She argued that delisting was done without a valid medical reason and went against legislation and advice from the government’s Regulations Committee.[8] She also found that SRS is a “legitimate, international, medically recognized non-cosmetic treatment.”[9]

Kathleen Lahey points out, in Are We Persons Yet?: Law and Sexuality in Canada, that transgendered and trans[s]exual persons still exist in a legal vacuum:

The fact that transgendered and transsexual persons have not yet been able to bring their cases within the rubric of human rights or Charter rights suggests that they are particularly disadvantaged by the reliance on mutually exclusive concepts of ‘sex’ and ‘sexual orientation.’ Instead of being able to occupy legal space within either of these two terms or at their convergence, they have been excluded from both.[10]

In a similar vein, scholar Dean Spade suggests that discourse around transgender has been over-medicalized, with too great a focus on physical evidence in the determination of legal status and other social markers.[11] While Spade does not intend to deny the physical realities of this group, his view suggests that the examination of transgender and transsexual issues should begin with a look at institutional and social barriers faced by transgender and transsexual people, rather than the individual’s anatomy.[12]

Another perspective is that transsexuality or transgender is defined by the sense that one’s essential self is trapped in the wrong body, a feeling that can result in depression and suicide. This view treats SRS as a medical imperative.[13] On the other hand, some have suggested that a desire for a sex-change comes from the same impulse as any cosmetic surgery—a desire that is superficially motivated.[14] Other times, however, the belief that the surgery is a matter of choice stems from the notion that social pressures, rather than natural impulses, will determine what gender one may want to live in.[15] While this view acknowledges that social pressures are deep-seated and not to be taken lightly, SRS is seen as only one treatment option amongst many. How far the latest Ontario government’s decision will go to promote reflection on the myriad of perspectives on the significance of sexual reassignment surgery for the transsexual/transgender community remains unclear.

 

[1] Nicole Visschedyk, “Questions remain about sex-change coverage” (20 May 2008), Guelph Mercury,online: GuelphMercury.com <http://news.guelphmercury.com/News/article/330083>.
[2] R.S.O. 1990, c. H19.
[3] Antonella Artuso, “Backlog for sex-change surgeries greater: advocate; provincial government numbers contradicted” The Standard (22 May 2008), online: Canoe.ca <http://www.stcatharinesstandard.ca/ArticleDisplay.aspx?e=1036196&auth=Antonella+Artuso>.
[4] Ibid.
[5] Ibid.
[6] Erica Predko, “Ontario law needs trans-formation: A struggle for the affirmation of human rights” Cité Libre (18 June 2008), online: Cité Libre <http://www.trudeausociety.com/home/Frontpage/2008/05/18/02213.html>.
[7] Ibid.
[8] Ibid.
[9] Ibid.
[10] Katherine A. Lahey, Are We ‘Persons’ Yet?: Law and Sexuality in Canada (Toronto: University of Toronto Press 1999) at 23.
[11] Dean Spade, “Resisting Medicine, Re/Modelling Gender” (2003) 18 Berkeley Women’s Law Journal 15 at 25-26.
[12] Ibid.
[13] Nina Arsenault, “Pay for my sex reassignment” National Post (17 June 2008), online: <http://www.nationalpost.com/news/canada/story.html?id=592289>.
[14] Ibid.
[15] Supra note 11.


New trial ordered for Alberta blogger who threatened Prime Minister

The Alberta Court of Queen’s Bench has ordered a new trial for a Canmore man acquitted of uttering death threats towards Prime Minister Stephen Harper on his blog.[1] Patrick David Fenton wrote the threats on his Windows Live Spaces blog, titled the “Drunken Soldier,” in 2006. When arrested, Fenton admitted he was the author of the blog. He argued that he wrote the threats through the alter ego of the “Drunken Soldier” as a joke and that the content of the blog, paired with an image of a ski-masked man holding a knife, were meant to convey its absurdity.

The trial judge acquitted Fenton of knowingly uttering a threat to cause death against Mr. Harper contrary to s. 264.1 of the Criminal Code.[2] Several constitutional issues were examined. The judge decided that the defendant possessed a “literary license” to publish his remarks that was protected under the right of freedom of expression s. 2(b) of the Charter of Rights. Additionally, the judge acquitted Fenton on the basis that his comments were protected by the right to “freedom of the press,” stating that “in our country we value freedom of the press more than the moral content of what people write.”[3]

The Court of Queen’s Bench overturned the acquittal on April 18, 2008. The Court rejected both constitutional grounds on a technicality. Notably, however, the Court did not necessarily reject the substantive content of the trial judge’s arguments of the protection that should be afforded bloggers. The Court ordered a new trial for Fenton on the basis that the judge granted the acquittal on Charter grounds that were not argued by the defendant. A party is required to give notice to the other side when arguing a Charter issue. None was given here. Nor did the defence raise the Charterissues relating to freedom of press or freedom of expression during arguments. Accordingly, the judge examined the Charter issues without any submissions from counsel on either side. The Court also ordered a new trial on the basis that the trial judge failed to apply the proper test in deciding whether or not Fenton possessed the required intent for uttering the threats.

 

[1] R. v. Fenton, 2008 ABQB 251 [Fenton].
[2]R.S.C. 1985, c. C-46.
[3] Fenton, supra note 1 at para. 111.


Insurance rates set to rise after minor injuries cap struck down (Update)

The Alberta insurance industry is seeking a 37 percent increase in automobile insurance premiums after a judge struck down a monetary cap for minor injury claims earlier this year. In February, a judge ruled that the Minor Injury Regulation[1]violated the Charter of Rights.[2] Now, insurers are seeking a steep increase in the mandatory portion of automobile insurance. Hearings by the insurance rate board in Calgary will end June 18. If accepted, changes will go into effect in November.

Currently, the decision to strike down the cap is before the Alberta Court of Appeal. The Court recently denied a request by the Dominion of Canada General Insurance Company (Dominion) for leave to intervene in the appeal. The court held that Dominion could not demonstrate that they would bring a "fresh perspective" to the appeal that differed significantly from than appellant.[3]

There are conflicting opinions about how much the ruling might affect the profitability of insurance companies. On one extreme, the insurance industry claims a 37 percent increase is needed to offset losses caused by the cap removal. A report prepared by the rate board concluded that an 11 percent increase in premiums would be needed to offset such losses.[4] On the other extreme, a newly released Canadian Bar Association study found that the removal of the cap would not significantly hurt the profitability of insurance companies.[5]

Source:
Jim Macdonald, “Insurance industry seeking approval for hefty rate hike from Alberta drivers" CBC News (14 June 2008).
[1] Minor Injury Regulation, Alta. Reg. 123/2004.
[2] Morrow v. Zhang, 2008 ABQB 98.
[3] Pedersen v. Alberta, 2008 ABCA 192.
[4] Jim Macdonald, “Insurance industry seeking approval for hefty rate hike from Alberta drivers" CBC News (14 June 2008).
[5] CNW Newswire, “Canadian Bar Association releases report finding auto insurance industry would be healthy without insurance cap” (16 June 2008).


Olympics and Equality Rights: Is VANOC Above the Law?

The Olympic Charter is the governing document of the International Olympic Committees (IOC), setting out its responsibilities and obligations regarding a variety of things such as venues, trademarks and the values of the Olympics. One of the fundamental principles of olympism is that “any form of discrimination with regard to a country of a person on grounds of gender or otherwise is incompatible with belonging to the Olympic movement[1]. Nine female ski jumpers from Norway, Canada, Slovenia, Austria, Germany and the United States believe this principle was breached by the Vancouver Olympic Committee (VANOC) when they excluded women’s ski jumping from the official program. The plaintiffs are arguing the following:

The failure to include women’s jumping events in the Games is a violation of every woman’s right to equal benefit under the law guaranteed by section 15(1) of the Canadian Charter of Rights and Freedoms[2]  and, in particular, a violation of the section 15(1) rights of women denied the opportunity to qualify for and participate in ski jumping events at the Games.”[3]

In 2005, FIS President Gian Franco Kasper stated that ski jumping is “ like jumping down from, let’s say, about two meters on the ground about a thousand times a year, which seems not to be appropriate for ladies from a medical point a view.”[4] These nine women believe this prevailing stereotype is not helping sporting organizations to change their mind about a possible appearance in the Olympics. A few lawyers at the Vancouver office of Davis LLP have taken up this case, pro bono, for the jumpers.

This is not the first time Olympic ski jumping has made the news in Canada. Earlier in 2008, four mothers complained to the Canadian Human Rights Commission that women’s ski jumping should be added to the 2010 Vancouver Olympics.[5] The argument there was very similar: women’s ski jumping is not developed enough, is not practiced on three continents and has not staged at least two world championships. Nevertheless, this requirement was taken out of the Olympic Charter in 2007, so it should no longer be considered a justifying argument against the nine women in this case. Perhaps most striking is the group’s demand that if women’s ski jumping is not added to the Games, there be an injunction to prevent VANOC from staging a men’s event.[6] It is not expected that the situation will escalate to this point.

In their statement of defence, VANOC has denied all allegations against them, adding that they were even the wrong party to sue. The statement of claims has advanced that VANOC told the IOC that it did not want women’s ski jumping to be included because of budget constraints, and this declaration would have affected the subsequent vote by the IOC to allow the sport in 2010.[7] It is the IOC that merits the defendants crown in this instance, but the Charter cannot apply to them because they are not a government agent. In Eldridge v. British Columbia (Attorney General)[8], it was asserted that a non-government actor, implementing a government policy or program, is subject to theCharter. On the other hand, if dealing with a private activity, the Charter would not apply.[9]

VANOC is subject to a number of policies drafted by the Government of Canada, including the Sport Canada Policy for Hosting International Events, a policy governing the extent of the government’s involvement in the events, such as the Olympic Games.[10] The ski jumping facilities for the 2010 Games in Whistler (the Callaghan Jumps) were entirely funded by the government.[11] Some experts believe relying on a Charter defence will not be successful. Constitutional law professor William Black says the only way to argue is to assert that “VANOC is subject to the charter because it is so closely controlled by government and they’re just doing the bidding of the Olympic Committee.”[12]

Is there hope that the IOC will change its mind in time for the 2010 Olympics? Unlike other news sports being introduced to the Olympic family, women’s ski jumping has neither sex appeal nor the “X-Games factor” that is currently all the rage in international sports.[13] It seems to be penalized for the fact that it is a sport that has been around for generations. While new sports are required to have equality between the sexes, this provision does not apply to old sports, and since women have been ski jumping for over a century, they have been grandfathered out.[14] The International Ski Federation (FIS) has also been sanctioning Junior World Championships since 2006, meaning there is a crop of young women currently competing at a high level. Will they ever get the chance to win a medal for their country? Since the Olympic Charter includes Bylaw 46.1.5, which includes an organizing committee to add events at any time, this could be a possibility.

[1] International Olympic Committee, “Olympic Charter”, online: <http://multimedia.olympic.org/pdf/en_report_122.pdf >
[2] 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. [Charter]
[3] Davis LLP, “Statement of Claims”, online: <http://www.davis.ca/publication/Statement-of-Claim-for-Womens-Ski-Jump-lawsuit-against-Vanoc.pdf> at P.5
[4] Ibid. at 19.
[5] Randy Starkman, Ski Jumpers Face an Uphill Battle, Toronto Star, 10 January 2008.
[6] Supra note 2 at 21.
[7] CBC Sports, “Women ski jumpers plead Olympic case” (23 May 2008)
[9] McKinney v. University of Guelph, [1990] 3 S.C.R. 229
[10] Sport Canada, “Federal Policy for Hosting International Sport Events”, online: Heritage Canada <http://www.pch.gc.ca/progs/sc/pol/accueil-host/2008/doc_e.cfm>
[11] Supra note 2 at 4.
[13] Supra note 4.
[14] Supra note 6.


Pre-employment Drug Testing Decision Affirmed (An Update)

On May 29, 2008, the Supreme Court of Canada dismissed an Alberta appeal involving pre-employment drug testing.[1] It confirmed an Alberta Court of Appeal decision that holds that pre-employment drug testing does not discriminate against casual drug users.[2] Chiasson was fired from KBR, a construction company, when he tested positive for marijuana in a pre-employment drug test. Chiasson filed a human rights complaint, claiming that KBR was discriminating against him based on a physical and mental disability - his recreational drug use.[3] While Chiasson was unsuccessful at his initial hearing at the Alberta Human Rights Commission, Chiasson won at the Alberta Court of Queen’s Bench.[4] The Court of Appeal decision reversed the decision, saying that KBR’s policy was legitimate as it was aimed at promoting safety.  The court was not prepared to find that human right protections extended to recreational cannabis use, an activity that could potentially harm others while on the job.

Further Reading:
[1] Supreme Court of Canada, Judgments in Appeals and Leave Applications.
[2] Alberta (Human Rights and Citizenship Commission) v. Kellogg Brown & Root (Canada) Company, 2007 ABCA 426.
[3] Human Rights, Citizenship and Multiculturalism Act, R.S.A. 2000, c. H-14, s. 7.


Papachase Land Claim Resolved

On April 3, 2008 in Canada (Attorney General) v. Lameman, the Supreme Court of Canada (S.C.C.) ruled on whether the descendants of the Papaschase Indian Band could continue to pursue a land claim that would have covered a significant portion of the south side of the City of Edmonton. [1] The S.C.C. decided that the descendants could not pursue the land claim.

In 2004 chambers judge Slatter J., of Alberta’s Court of Queen’s Bench, struck down the land claims portion of the lawsuit, but did allow the descendants of the band to pursue another matter arising out of the claim.[2]Here the Government of Canada argued that the whole lawsuit was invalid because it was filed after the limitations deadline had expired.[3] The chambers judge agreed, in part. The descendants had missed a deadline to start the lawsuit and so could not proceed on the main part of their claim.

Between 1886 and 1889 the band had sold its reserve lands and surrendered their treaty rights, and rights connected to the reserve. In 1894 the surviving members of the band reached an agreement with the government whereby it paid monies from the sale of the Papaschase reserve to the members of the Enoch Band. It appeared that the surviving members of the Papaschase band had joined the Enoch Band, by then. In the 1970s alawyer representing a group of native persons wrote the federal government advising it that descendants of the Papaschase would pursue a land claim in the near future. That lawsuit was never started. Both the federal and provincial governments did not hear from other interested natives between the 1970s and 2001. The judge ruled that too many years had passed between the time the Papaschase descendants had first indicated their position that there was a legal problem in the 1970s, and the filing of the lawsuit in 2001. Accordingly, he dismissed the land claim.[4] He did, however, rule that the descendants could pursue a claim to see if the government had properly spent and accounted for the proceeds of the sale of the land pursuant to the 1894 agreement. The descendants then appealed the decision.

In 2006 the Alberta Court of Appeal ruled in favour of the descendants.[5] It disagreed with the chambers judge, stating that there were issues before the courts which might be proved at trial, and that the descendants should have the ability to conduct a full trial of the matter. Justice Côté disagreed. He thought that the claims for malice, fraud, and bad faith should be dismissed as the descendants had not established any evidence of the same.[6] Justice Paperny agreed with the majority, but would also have agreed to Justice Côté’s exception.

The S.C.C. overturned the Court of Appeal, stating: “We agree with the chambers judge that [the claim] must be struck out, except for the claim for an accounting of the proceeds of sale, which is a continuing claim and not caught by the Limitation of Actions Act.”[7] The S.C.C. noted that it had previously ruled that limitation periods apply to Aboriginal claims in Wewaykum Indian Band v. Canada.[8] It also noted that while the Alberta government had produced evidence that the descendants should have filed the lawsuit in the 1970’s, the descendants did not produce any evidence to contradict that claim.[9] Finally the S.C.C. chastised the majority of the Alberta Court of Appeal for allowing the appeal on the basis of what might be proved at trial. A chambers judge can only base his/her decision on the evidence that is before them, and cannot speculate on evidence that might be produced in the future.[10]

[1] Canada (Attorney General) v. Lameman, 2008 SCC 14;
[2] Papaschase Indian Band (Descendants of) v. Canada (Attorney General), 2004 ABQB 655 (CanLII);
<http://www.canlii.ca/en/ab/abqb/doc/2004/2004abqb655/2004abqb655.html>. A judge sitting in chambers rules on preliminary motions made before the trial is even scheduled
[3] Limitation of Actions Act, R.S.A. 1980, c. L-15
[4] Supra, Papaschase Indian Band, paras. 5-7 and 11-16.
[5] Lameman v. Canada (Attorney General), 2006 ABCA 392 (CanLII);
[6] Ibid, para. 166.
[7] Canada (Attorney General) v. Lameman, 2008 SCC 14;
[8] Wewaykum Indian Band v. Canada, 2002 SCC 79 (CanLII), [2002] 4 S.C.R. 245; (2002), 220 D.L.R. (4th) 1; (2002), [2003] 1 C.N.L.R. 34; (2002), 236 F.T.R. 147;
[9] Ibid, para. 18.
[10] Ibid, para. 19.


Je Ne Speak Pas French: RCMP Faces Tougher Language Obligations in New Brunswick

Marie-Claire Paulin was issued a speeding ticket in April 26, 2000 by a unilingual RCMP officer in the Woodstock, New Brunswick.[1] While she paid the fine that day, Paulin later started a lawsuit against the Crown stating her right to receive police services in her native tongue of French were denied, breaching section 20(2) of the Canadian Charter of Rights and Freedoms [2]. Her action was joined by the Société des Acadiens et Acadiennes du Nouveau Brunswick (SAANB) at the Federal Court level. The SAANB’s motive stems from a report recommending that the RCMP’s that the requirement to speak in French should be reduced in the region.[3] If sections16.1, 16(2) and 20(2) of the Charter apply in the case at hand, the report could not be implemented as is.

An earlier ruling by the Federal Court held that since the RCMP was serving as a provincial police in New Brunswick, making it a provincial institution for the purposes of section 20(2) of the Charter, the officers are required to provide police services in both French and English.[4] The government’s argument was that the RCMP is a federal institution, not a provincial body, and is therefore not subject to section 20 (2), which only applies to New Brunswick institutions. The debated section of the Charter reads as follows:

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 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.

(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.[5]

The decision was set aside by the Federal Court of Appeal, rejecting the argument that the RCMP is akin to a New Brunswick institution for the purposes of section 20 (2).[6]Chief Justice Richard was clear in his statement that the RCMP cannot assume New Brunswick’s constitutional language obligations, that only the province was responsible to discharge this obligation. Both the Federal Court and the Federal Court of Appeal were in agreement that the RCMP is “at all times subject to the minimum obligations imposed on it by section 20 (1) of the Charter and by federal official languages legislation, regardless of whether it is acting as the federal police force or as a provincial or municipal force under an agreement.”[7]

The legal issue was whether RCMP officers are required to follow the language obligations of section 20(2) of the Charter imposed on provincial institutions, or simply the federal language obligations in the first subsection.[8] While the RCMP is a federal institution, created by section 20 of the Royal Canadian Mounted Police Act[9], it has been in a contract with the province 1992, to act as its police force. Under section 2 (2) of the New Brunswick Police Act[10], each RCMP member has the “attributes of a provincial peace officer and is authorized by that province to administer justice there, he or she performs the role of an ‘institution of the legislature or government’.”[11]

The province’s argument concentrated on the principle of constitutional accountability of governments- New Brunswick is constitutionally responsible for administering justice and is also accountable for the action of its enforcement.[12] Eldridge v. British Columbia (Attorney General)[13]was relied on to try and prove that the RCMP cannot be both a federal and provincial institution at the same time. The province was saying that the only legal recourse in this case for Ms. Paulin was a lawsuit for breach of contract where she would have to prove that she had suffered economic damages (as opposed to hurt feelings), and not the type of lawsuit she had started - which would require that the Province provide bilingual police officers if she won the case.[14]

The unanimous verdict, penned by Justice Bastarache allowed the appeal and declared that RCMP members, acting as police officers in New Brunswick, are bound by section 20(2) of the Charter. He relied on a rule from Slaight Communications Inc. v. Davidson[15], where imprecise discretions could not be seen as a carte blanche to make an order that would infringe the Charter. The court clearly stated that the Charterwould apply to people enforcing the law. The SCC agreed with Gauthier J’s reasoning that when the RCMP officer handed Marie-Claire Paulin a ticket that day, he was performing a function of the Government of New Brunswick.[16] As a resident of Canada’s only officially bilingual province, Mrs. Paulin had a constitutional right to receive police services in French.

[2]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.
[3] Supra note 1 at para.4.
[5] Supra note 3.
[7] Supra note 1 at para.7.
[8] Ibid.
[9] Royal Canadian Mounted Police Act, R.S.C. 1985, c. R-10.
[10] Police Act, S.N.B. 1977, c. P-9.2, s.2.
[11] Supra note 1.
[12] Ibid. at para.10.
[13] Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624 (CanLII)
[14] Supra note 13.
[15] Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038 at para.87 (CanLII)
[16] Supra note 1 at para.22.


Federal Human Rights Legislation Now Applies to Reserves

Native reserves have been exempted from the Canadian Human Rights Act (the “Act”)[1] for 31 years. This week, final negotiations in the House of Commons have resulted in the passing of Bill C-21, which will do away with the exemption provided in section 67 of the Act.[2]

In 1977, when the Act was passed, Native reserves were only going to be excluded from the Act temporarily while the federal government made significant changes to the Indian Act[3], which regulates reserve activities. The legislation, however, remains relatively untouched, leaving natives vulnerable to potential abuses by the federal government or their chiefs and council.[4]

Indian and Northern Affairs Minister Chuck Strahl was opposed to an amendment which required that collective and treaty rights of aboriginals be balanced against the individual rights engrained in the Canadian human rights legislation. He was concerned that this kind of balancing would give chiefs, and other leaders in the communities, an opportunity to refer to cultural traditions in evading accusations of abuse.[5] The Minister also wanted the bill to be passed expediently, but has agreed to the opposition’s insistence on amendments that will take up to three years. He has since conceded on both points. [6]

[1] Canadian Human Rights Act, R.S.C. 1985, c. H-6 [the Act].
[2] Bill Curry, “Native law loophole to be closed” The Globe and Mail (26 May 2008), online.
[3] Indian Act, R.S.C. 1985, c. I-5.
[4] Supra note 2.
[5] Simon Doyle, “Strahl gets change of heart on C-21” First Perspective (26 May 2008), online.
[6] Supra note 2.