Question Period Note - Factum CSFTNO AGC

Minister of Official Languages and Minister responsible for the Atlantic Canada Opportunities Agency

Issue

Factum of the Attorney General of Canada: Commission scolaire francophone des Territoires du Nord-Ouest v. Minister of Education, Culture and Employment of the Northwest Territories

New

November 28, 2022

Source

Various

Synopsis

On November 28, 2022, the Attorney General of Canada filed a factum with the Supreme Court of Canada in Commission scolaire francophone des Territoires du Nord-Ouest v. Minister of Education, Culture and Employment of the Northwest Territories.

Recommended response

• This case is important for official language minority communities' access to justice. The Attorney General of Canada's factum intervenes on a constitutional issue related to the right to use English or French before the courts and reminds us that governments bear the primary responsibility for advancing the equality of official languages in the courts.
• Since 2016, the Government is committed to appointing bilingual judges to the Supreme Court of Canada. Bill C-13 proposes to extend to the Supreme Court the duty to understand the official languages that already applies to other federal courts.
• The Government of Canada supports access to justice in both official languages and works with the provinces and territories to support the provision of government services in the minority language.

Background

• The litigation between the Commission scolaire francophone des Territoires du Nord-Ouest (CSFTN-O), parents of students and the Minister of Education, Culture and Employment of the Northwest Territories began when the Minister denied admission to the Francophone school to children whose parents were not right holders under section 23 of the Canadian Charter of Rights and Freedoms.
• The CSFTN-O and the parents filed applications for judicial review of the Minister's decision to the Supreme Court of the Northwest Territories. In two separate judgments, the Supreme Court of the Northwest Territories quashed the Minister's decision.
• On June 13, 2022, the Attorney General of Canada filed a Notice of Intervention with the Supreme Court of Canada to argue the constitutional issue of the compatibility of section 9(1) of the Northwest Territories Official Languages Act with section 19(1) of the Canadian Charter of Rights and Freedoms.
  • Subsection 9(1) of the Official Languages Act of the Northwest Territories and subsection 19(1) of the Canadian Charter of Rights and Freedoms guarantee the right to use English or French before the courts.
  • The Attorney General of Canada submits that the right to use the official language of one's choice before the courts is distinct from the right to be understood in the official language of one's choice without the assistance of an interpreter. The current Act therefore does not impose a duty on the judge to directly understand the official language used.
  • The Attorney General of Canada considers that it is primarily up to Parliament to advance the equality of official languages before the courts. The federal, provincial and territorial governments can put in place measures such as language training for judges, the appointment of bilingual judges, and assistance with the development of an interpretation infrastructure.
• On April 14, 2022, the Supreme Court of Canada granted leave to appeal the judgment of the Northwest Territories Court of Appeal.
• On November 1, 2021, The CSFTN-O and the parents filed an application for leave to appeal to the Supreme Court of Canada. The appellants argued that the Minister should consider the threefold purpose of section 23 of the Charter in making her decision, including maintaining and enhancing the vitality of official language minority communities. They also argued that the Court of Appeal could have infringed the right to use French in court, which would confer the right to be understood directly by the court.
• These judgments have been appealed to the Northwest Territories Court of Appeal. On September 1, 2021, the Court of Appeal allowed the Minister's appeals and reinstated her decisions.
• Section 16 of the Official Languages Act provides that every federal court, other than the Supreme Court of Canada, has the duty to ensure that any person hearing a case understands the official language or languages chosen by the parties without the assistance of an interpreter.
  • In 1988, an exception was made for the Supreme Court of Canada to this section to allow for the development of a sufficient pool of jurists competent in both official languages.
  • In 2016, the Government of Canada introduced a process for appointing judges to the Supreme Court of Canada that assesses candidates' bilingualism. Since then, this process has been rigorously followed.
  • To reaffirm its commitment, the Government of Canada has proposed in Bill C-13 to amend subsection 16(1) and removing the exception that applies to the Supreme Court of Canada so that the requirement to understand the official languages applies to all federal courts.
• The Official Languages Act of the Northwest Territories recognizes 11 Official Languages. Its subsection 9(1) guarantees the right to use English or French before the courts, while its subsection 9(2) guarantees the right to use any of the nine Official Languages mentioned.
• Several constitutional or quasi-constitutional provisions guarantee the right to use English or French before the courts or parliamentary institutions, notably at the federal level, in Quebec, Manitoba, New Brunswick, Saskatchewan, Alberta, the Yukon and Nunavut, in terms similar to those of subsection 9(1) of the Northwest Territories Official Languages Act and subsection 19(1) of the Canadian Charter of Rights and Freedoms.