Doucet v Canada

Year: 
2004
Categories: 
Language rights and services to the public
Court: 
Federal Court
Citation: 
2004 FC 1444
Province or Territory: 
Nova Scotia

In his action before the Federal CourtFootnote 1, Mr. Doucet was no longer asking that his conviction for speeding be quashed owing to the circumstances of his arrest, which allegedly infringed his language rights, but he alleged a breach of those rights, involving inconsistency of a provision of the Official Language Regulations (Regulations) with section 20 of the Charter, and sought a remedy pursuant to section 24 of the Charter. He asked the Court to rule that subparagraph 5(1)(h)(i) of the Regulations was inconsistent with section 20 of the Canadian Charter of Rights and Freedoms (The Charter), in that it did not recognize the special mission of Royal Canadian Mounted Police (RCMP) officers patrolling the Trans-Canada Highway. Alternatively, he asked the Court to rule that at the Fort Lawrence point of entry near Amherst, the Trans-Canada Highway is a region of significant demand for the use of French. By establishing a duty of service in that region based on the percentage of the local Francophone population rather than in terms of the volume of Francophones using the Trans-Canada Highway at that location, the Regulations are inconsistent with section 20 of the Charter. The decision accordingly raised the question of the consistency of the Regulations with section 20 of the Charter.

It will be recalled that section 20 of the Charter and Part IV of the Official Languages Act (OLA) set out the right to communicate with and receive services from federal institutions, in particular where there is a "significant demand" or "due to the nature of the office." The Regulations are intended to determine the circumstances in which a "significant demand" exists within the meaning of the OLA and to determine the offices that must offer bilingual services because of their special mission. It will be recalled that the RCMP offices are not on this list, where the mission justifies services in both languages within the meaning of the Regulations. It will also be recalled that under subparagraph 5(1)(h)(i) of the Regulations, "significant demand" exists for services in the minority official language in rural areas if the minority population attains the threshold of 500 persons, or 5 percent of the total population. Applying this rule, no "significant demand" existed in the Amherst region. In his pleadings, Mr. Doucet maintained that significant demand existed in that region within the meaning of section 20 of the Charter and that, by not covering the special situation at Amherst, the Regulations were infringing his language rights. In his submission, while it is true that the demographic weight of Francophones in Amherst does not justify the RCMP offering bilingual service, it is clear that the number of Francophones using Highway 104 justifies it. This factor should have been taken into account in the Regulations.

In his judgment, Blanchard J. of the Federal Court first noted that it was not for the Court to question the government’s political decisions in drafting the Regulations when they set the figures for "significant demand" or applied the national mandate to certain offices. Those decisions, he noted, "reflect both the desire to comply with the provisions of the Charter and the OLA and the need to apply some rationality to offering bilingual services in a country where the two languages do not always co-exist in the same areaFootnote 2." For this reason, it appears that the judge preferred to leave it to the legislator to decide which institutions should be covered by the concept of "nature of the office" since he chose not to rule on this question even though it was raised by the applicant. He agreed to consider the question of "significant demand" however, noting that the Court had a duty to intervene if the application of these decisions, even though political, had the effect of infringing the right guaranteed by the Charter. Accordingly, in the case at bar, the Court had to determine whether the rules applicable to the notion of "significant demand" in the Regulations, as written, infringed the rights guaranteed by the Charter and the OLA.

The Federal Court judge went on to confirm, as the Nova Scotia Supreme Court and Court of Appeal had, that when it is patrolling Nova Scotia highways or responding to a call from an individual, the RCMP is a federal institution offering services to the public, and as such, is bound by the provisions of the OLA and the Charter regarding the provision of services in the official language of choice. He also confirmed that although the RCMP performs policing duties in Nova Scotia under a contract with the province, this does not in any way alter its status as a federal institution. Finally, he indicated that it had to be determined in the case at bar whether a "significant demand" existed on the Trans-Canada Highway in the Amherst region within the meaning of the Charter.

Whether the concept of "significant demand" defined in the Regulations should take into account public travelling on the Trans-Canada Highway

Analysing the facts of the case, the judge concluded that Amherst had a limited Francophone population, but was located near New Brunswick, where 32 percent of the population was Francophone (2001 Census), and more importantly, near a region where, according to the evidence, 38 percent of the population was Francophone. He also noted that the evidence showed a large amount of traffic from New Brunswick in the Amherst region. The applicant’s expert witness had persuasively established the probability that a significant number of Francophones from New Brunswick would be travelling on highways in the Amherst region, especially on the principal artery that was part of the Trans-Canada Highway.

In view of these facts, the judge concluded that the Regulations did not deal with the "situation of a busy highway, patrolled by the RCMP, on which a large number of members of the minority language group are likely to be travellingFootnote 3." In his view, the evidence showed, on a balance of probabilities, "that there is a ‘significant demand’ for minority language services in French on the section of Highway 104 crossing the service area of the RCMP, Amherst detachmentFootnote 3."

Justice Blanchard added that the demographic data for the town of Amherst (the only data used by the Regulations) bore no relation to the actual situation of a large population travelling on the highway, which according to the evidence came from outside the province—essentially from New Brunswick—and consisted of a large proportion of Francophones. The judge also considered section 23 of the OLA, concerning the provision of services to "the travelling public," and the provision in the Regulations which stated that in the case of airports and ferry terminals, significant demand was deemed to have been established once a certain level is reached in the number of travellers. He held that similar criteria had been applied in the case of highways. In his view, the significant number of vehicles annually crossing the border at Fort Lawrence constituted a "powerful counter-argument to the idea that demand should only be based on the demographics of the areaFootnote 4."

Accordingly, the judge concluded that the Regulations contained a deficiency in that "the Regulations do not provide for services to a linguistic minority travelling on a major highwayFootnote 4." Consequently, he concluded that, "the Regulations do not comply with subsection 20(1) of the Charter, because they infringe the right of individuals to communicate with a federal institution in the official language of their choice, although a ‘significant demand’ existsFootnote 5." He also concluded that the Regulations thereby did not meet the requirements of sections 22 and 23 of the OLA.

Whether the infringement of rights guaranteed by section 20 of the Charter is justified under section 1 of the Charter

Considering this point involving section 1 of the Charter, the judge concluded that it was reasonable and legitimate to limit the offer of bilingual services when demand did not justify it and the objective of rationalization was also legitimate. A logical connection existed between this objective and the infringement of rights, since limiting the offer of French services enabled the services to be rationalized. In the case at bar, the infringement of rights was not minimal. In the judge’s view, the defendant "did not demonstrate how the Regulations as drafted minimally impair the rights of the travelling public belonging to the minority official language groupFootnote 6." According to the evidence, the rights of a large number of persons had been infringed.

In his view, the beneficial effects of the Regulations depend solely on the savings that the Treasury Board is likely to make by not accepting the obligation of providing bilingual officers on Highway 104 in the Amherst service area. This economic advantage has to be weighed against the prejudicial effect of the infringement, in view of the values enshrined in the Charter. Consequently, the judge concluded that the infringement of the rights guaranteed by section 20 of the Charter was not justified under section 1 of the Charter.

Remedy that was appropriate and just in the circumstances

Referring to the Supreme Court of Canada’s judgment in Doucet-BoudreauFootnote 7, the judge first noted that the broad and liberal interpretation that should be given to the Charter should also be reflected in a broad and liberal approach to remedies. The "principal purpose of remedies is to provide an effective solution to the problem raised by the impairment of a right guaranteed by the CharterFootnote 8." In the case of the Regulations at issue, the judge observed that they contained a very serious defect and the Court had a duty to intervene when it found an infringement of the Constitution.

As the evidence in the record dealt solely with the Regulations in general and with the territory served by the Amherst RCMP detachment, the judge refused to make a specific ruling on the government’s obligations to provide bilingual police services along the entire length of the Trans-Canada Highway.

After being careful to note that it was not his function to decide what form amendments to the Regulations should take, the judge thought it proper to point out the defects that should be corrected to make the Regulations consistent with the OLA and the Charter:

An RCMP detachment is regarded as an "office" for the purposes of the Charter and the OLA. When an RCMP detachment provides policing services in Canada, it is important to consider the function it is charged with in the community in which it is located. In the case at bar, one of the RCMP’s important duties is to patrol a busy highway, where there is undoubtedly a demand for services in FrenchFootnote 9.

Consequently, the judge concluded that "the Regulations should, therefore, be amended to take into account circumstances such as those present in this case: a major highway, used significantly by people of a minority official language, and patrolled by a police force under the authority of the Canadian governmentFootnote 10." He noted that in such a case, defining "significant demand" in terms of the demography of the location where the detachment is situated was clearly inadequate, since "the RCMP is expected not only to deal with residents of the areaFootnote 10," but "to serve all non-residents who use the highwayFootnote 10."

The judge further concluded that it was the function of the Governor in Council to find suitable wording to resolve this problem. He indicated, however, that in his opinion the words "travelling public" in the meaning of section 23 of the OLA "must be defined more broadly than to include only travellers using airports, railway stations or ferry terminals, and that travellers using major highways must also be considered when they number in the millionsFootnote 11." Equal access to services in both official languages simply meant equal treatment. For this reason, he considered that, contrary to what had been indicated by the Nova Scotia Supreme Court judge and Court of Appeal, the procedure set up by the RCMP for using a bilingual colleague via radio was not very satisfactory. A service that left much to be desired absolutely did not meet the objectives set out in section 2 of the OLA and was contrary to section 16 of the Charter, which recognizes the equal status of both official languages.

Finally, Blanchard J. allowed Mr. Doucet’s application in part, finding subparagraph 5(1)(h)(i) of the Regulations inconsistent with paragraph 20(1)(a) of the Charter "in that the right to use French or English to communicate with an institution of the Government of Canada should not solely depend on the percentage of Francophones in the census district. Consideration must also be given to the number of Francophones who use or might use the services of the institution, as illustrated by the circumstances in this case, along Highway 104 near Amherst, Nova ScotiaFootnote 12." Consequently, he felt it was reasonable to give the Governor in Council 18 months (from October 19, 2004) to correct the problem identified in the Regulations. Mr. Doucet appealed this decision, primarily with respect to the question of "nature of the office."

Footnotes

Footnote 1

Doucet v Canada, 2004 F.C. 1444.

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Footnote 2

Doucet v Canada, 2004 F.C. 1444 at para. 21.

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Footnote 3

Doucet v Canada, 2004 F.C. 1444 at para. 46.

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Footnote 4

Doucet v Canada, 2004 F.C. 1444. at para. 48.

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Footnote 5

Doucet v Canada, 2004 F.C. 1444 at para. 49.

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Footnote 6

Doucet v Canada, 2004 F.C. 1444 at para. 56.

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Footnote 7

Doucet-Boudreau v Nova Scotia (Minister of Education), [2003] 3 S.C.R. 3.

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Footnote 8

Doucet v Canada, 2004 F.C. 1444 at para. 69.

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Footnote 9

Doucet v Canada, 2004 F.C. 1444 at para. 76.

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Footnote 10

Doucet v Canada, 2004 F.C 1444 at para. 77.

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Footnote 11

Doucet v Canada, 2004 F.C 1444 at para. 78.

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Footnote 12

Doucet v Canada, 2004 F.C 1444 at para. 80.

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Date modified:
2020-09-18