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It is useful at the beginning to present an overview of the federal statutory provisions and pertinent regulations that apply to the use of our two official languages in court processes involving the federal Department of Justice.

2.1 Language obligations applicable to criminal proceedings under Part XVII of the Criminal Code

As alluded to above, accused persons have the right under Part XVII of the Criminal Code of Canada to be tried before a judge, or judge and jury, who speak their official language, as well as the right to have a prosecutor who speaks their official language assigned to the case. In essence, the guarantees under Part XVII are designed to ensure that accused persons anywhere in Canada may, at their option, be tried in their preferred official language4. Respect for the rights under Part XVII clearly obliges the federal Department of Justice, when conducting prosecutions to which Part XVII applies, to choose full-time Crown counsel or Crown agents (to act as prosecutors) willing and able to speak the language of accused persons. To fulfil this obligation, the pool of available counsel must include a sufficient number of individuals possessed of the requisite language capabilities, although the proportion of prosecutors able to speak the minority official language will obviously vary as a function of the demand for minority language trials in any given area.

The types of prosecution undertaken by federal Crown agents vary considerably. While matters falling under the Food and Drugs Act or the Narcotics Control Act come quickly to mind, other areas include the Customs Act, the Excise Act, the Fisheries Act, the Income Tax Act, the Employment Insurance Act and the Immigration Act, to name but a few. Regulations adopted under various federal statutes may also constitute the basis upon which prosecutions are commenced.

The ability of a federal prosecutor to speak the official language of the accused obviously facilitates the use of that language in communications which take place outside the formalities of the courtroom itself. Requests for information by the accused or counsel prior to trial are not unusual occurrences, a fact that makes it important that the federal Crown be able to respond in the official language in which such requests are transmitted. The use of an accused’s official language is also important with respect to communications initiated by the federal Crown relevant to pending court proceedings.

2.2 Language obligations applicable to civil proceedings in federal courts under Part III of the Official Languages Act (OLA)

Part III of the OLA also contains provisions relevant to the use of official languages in legal proceedings conducted before all federal courts5. Of particular importance is section 18, which imposes the duty on the federal Crown (where it is a party to civil proceedings before federal courts) to use the official language of the other parties in any oral or written pleadings. In choosing Crown agents to act in civil proceedings before federal courts, the Department of Justice must therefore be sensitive to the linguistic requirements of any given case. An agent’s ability to use the official language of other parties in oral and written pleadings also facilitates the use of that language in all communications between parties and their counsel which take place outside the courtroom itself. Indeed, arguments advanced above suggest that requirements under Part IV of the OLA oblige federal Crown agents to respect the right of other parties to civil proceedings before federal courts to communicate with them and receive information from them in their preferred official language.

2.3 Language obligations applicable to communications with the public and the provision of services under Part IV of the OLA

As a federal institution, the Department of Justice is subject to the requirements of Part IV of the OLA. In this regard, the right of any member of public to communicate with and receive available services from such institutions is clearly set out in section 21 of the Act. This right applies with respect to all head or central offices of federal institutions, to all offices or facilities within the National Capital Region, and to all other offices and facilities situated in regions where a significant demand exists for services and communications in either official language (section 22).

Regulations adopted in December 1991, pursuant to section 23 of the OLA, establish parameters for determining significant demand6. In general terms, the regulations distinguish between large urban centres of 100,000 people or more (census metropolitan areas – CMAs) and smaller cities, towns and rural regions (census subdivisions – CSDs), establishing different threshold levels for the minority population in each category necessary to warrant the obligation to provide federal services in both official languages. Where the minority population in a CMA is at least 5,000, federal institutions located therein are obliged to provide services in both official languages in a least one of their offices. The same rule applies if the minority population within the CMA falls below 5,000 but the minority population of the service area of the federal office is equal to or above that figure. When these regulatory standards7 are applied, we find that federal institutions operating in the following cities are required to provide services in both official languages in accordance with the rules just mentioned: Saint John’s, Halifax, Quebec, Sherbrooke, Montreal, Sudbury, Toronto, Hamilton, St. Catharines-Niagara, London, Windsor, Winnipeg, Calgary, Edmonton and Vancouver.

With respect to the smaller CSDs, two language services from at least one office of a federal institution located therein are required if the minority population of its service area reaches at least 500 people and represents 5 percent of the CSD population. The same is required if the service area of an office located in a CSD has an official language minority population of at least 5,000. When the rules applicable to CSDs8 are applied, we find that federal institutions with offices in the following towns and small cities are required to offer services in both official languages: Charlottetown, Moncton, Fredericton, Kingston and Abbotsford, B.C.

The Department of Justice serves the New Brunswick public, for the purposes of Part IV of the OLA, from its office located in Halifax for criminal and civil matters, and from its office in Ottawa, in part, for civil matters. It also provides its services through Crown agents who act on behalf of these two offices, within the meaning of section 25 of the OLA. The Ottawa office, as a head or central office, is subject to section 22 of the OLA. The Halifax office is subject to section 22 of the OLA under the definition of “significant demand” found in paragraph 5(1)(a) and subparagraph 11(a)(i) of the Regulations referred to above. The list of offices of federal institutions subject to the language obligations set out in the OLA and its Regulations is prepared by the Treasury Board Secretariat of Canada, which publishes it on its Web site. This list, updated on March 11, 1998, states that, in Ontario, the offices of the Department of Justice located in Ottawa and, in Nova Scotia, the offices located in Halifax are both subject to section 22 of the OLA (see ss. 5(1)(a) and 11(a)(i) of the Regulations). It is thus clear that communications and services provided to the public by the Department of Justice in its Ottawa and Halifax offices that serve New Brunswick satisfy significant demand requirements and must be provided in both official languages.

The OLA also stipulates that federal institutions required to offer two-language services must take positive measures to ensure that members of the public are adequately informed of their availability. Such measures include “the provision of signs, notices and other information” making it known that services are available in either English or French at the option of the individual9. Treasury Board has also adopted an official policy regarding an active offer of service, which states that “in designated offices or service points, federal institutions or third parties acting on their behalf must:

  • make it clear to all members of the public that they can communicate with and be served in the official language of their choice; and

  • provide services of comparable quality in either official language.”

In other words, a passive response to the requirements of the OLA is not sufficient, and federal institutions subject to section 22 must reach out with an active offer of service in both official languages.

While all these provisions apply to the Department of Justice, a further requirement of the OLA of particular relevance concerns the delegation of institutional responsibilities to nongovernmental organizations and individuals. As already mentioned in the Background to this study, the OLA (section 25) imposes the duty upon federal institutions to ensure that, where third parties are authorized to provide services on their behalf, members of the public can communicate with and receive such services from them in either official language, at least to the same extent as would have been the case had the institutions themselves directly provided the services in question. Since Crown agents appointed by the Department of Justice fall within the scope of section 25, it is important that the Department apply administrative rules that ensure adequate protection of the rights of members of the public under Part IV of the OLA.

The right to services in either official language under Part IV does not require, of course, that all public servants be bilingual. Neither does it impose any such obligation on all third parties engaged by federal institutions within the meaning of section 25 of the OLA. However, it does create an institutional obligation to ensure that adequate human resources are in place to allow for services to be offered, and communications made, in either English or French wherever reasonable demand exists or within the National Capital Region or at head offices of federal institutions. This would naturally affect the over-all composition of Crown agents appointed by the Department of Justice in any given province and their regional distribution.

Accordingly, the Department has a statutory duty to ensure that third parties acting on its behalf (i.e., federal Crown agents) are in a position to respect the right to service provisions found in the OLA.  

4 For a more detailed and complete description of the provisions of Part XVII of the Criminal Code, see the study of the Office of the Commissioner, The Equitable Use of English and French Before the Courts in CanadaGovernment site, pp. 16-23, op. cit., Note 1.

5 For further details, see the study of the Office of the Commissioner, The Equitable Use of English and French Before Federal Courts and Administrative Tribunals Exercising Quasi-judicial Powers, pp. 21-23, op. cit., Note 1.

6 Official Languages (Communications with and Services to the PublicGovernment site) Regulations; op. cit., Note 3.

7 For more detail on the rules applicable to CMAs see subsection 5 (1) (a) through (g)Government site of the Official Languages Regulations, op. cit., Note 3.

8 For more detail on the rules applicable to CSDs see subsection 5 (1) (h) through (r)Government site of the Official Languages Regulations, op. cit., Note 3.

9 See section 28 of the OLAGovernment site.

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