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Société des Acadiens v. Association of Parents, [1986] 1 S.C.R. 549

 

Société des Acadiens du Nouveau‑Brunswick Inc. and the Association des conseillers scolaires francophones du Nouveau‑Brunswick    Appellants;

 

and

 

Association of Parents for Fairness in Education, Grand Falls District 50 Branch                                                                  Respondent;

 

and

 

Minority Language School Board No. 50                                         Mis en cause;

 

and

 

Attorney General of Canada and Attorney General for New Brunswick   Interveners.

 

File No.: 18781.

 

1984: December 4, 5; 1986: May 1.

 

Present: Dickson C.J. and Beetz, Estey, Chouinard, Lamer, Wilson and Le Dain JJ.

 

on appeal from the court of appeal for new brunswick

 


                   Courts ‑‑ Jurisdiction ‑‑ Inherent jurisdiction of the Court of Appeal of New Brunswick ‑‑ Court of Appeal granting applications for leave to appeal and for an extension of time to appeal ‑‑ Applications made by a person not a party to the original action ‑‑ Whether Court of Appeal had jurisdiction to grant the applications ‑‑ Whether the Court of Appeal exercised its discretion in a judicial manner ‑‑ Judicature Act, R.S.N.B. 1973, c. J‑2 as amended, ss. 8(2), 21.

 

                   Courts ‑‑ Judges ‑‑ Language requirements ‑‑ New Brunswick Court of Appeal ‑‑ French language competence of appeal judge challenged ‑‑ Level of understanding required of the Bench ‑‑ Judges to determine their own linguistic competence ‑‑ Canadian Charter of Rights and Freedoms , s. 19(2)  ‑‑ Official Languages of New Brunswick Act, R.S.N.B. 1973, c. O‑1, s. 13(1).

 

                   Constitutional law ‑‑ Charter of Rights  ‑‑ Official languages of Canada ‑‑ Proceedings in courts ‑‑ Content of litigant's right to use either English or French in any court of New Brunswick ‑‑ Whether this right comprises the right to be heard and understood by the court regardless of the official language used ‑‑ Canadian Charter of Rights and Freedoms , ss. 14 , 16 , 19 , 20 , 27  ‑‑ Official Languages of New Brunswick Act, R.S.N.B. 1973, c. O‑1, s. 13(1).

 

                   Appellants brought an action seeking declaratory and injunctive relief against the mis en cause to prevent it from offering immersion programs to French‑speaking students in its English schools. The New Brunswick Court of Queen's Bench delivered a judgment‑‑later clarified in two subsequent decisions‑‑in favour of the appellants but refused to issue the injunction. The mis en cause, despite pressure from parents of the students who would have enrolled in the program, decided not to appeal the judgment as clarified. The parents created the respondent Association and made applications for leave to appeal the judgment and for an extension of the appeal period. Prior to the hearing before Stratton J.A. in the Court of Appeal, the appellants requested that the matter be heard by a bilingual judge as some of the presentations were to be made in French. Stratton J.A. acceded to the request and referred the matter to another judge who decided that the matter had to be dealt with by a panel of the Court. A panel of three, Stratton J.A. presiding, granted respondent's applications. Hence this appeal to determine (1) whether the New Brunswick Court of Appeal had inherent jurisdiction to grant leave to appeal when the person seeking leave was not a party to the original action and was applying out of time, and if so, whether it exercised its discretion properly; and (2) whether s. 19(2)  of the Canadian Charter of Rights and Freedoms  entitles a party in a court of New Brunswick to be heard by a court, the member or members of which are capable of understanding the proceedings, the evidence and the arguments, written and oral, regardless of the official language used by the parties.

 

                   Held: The appeal should be dismissed.

 

                                                (1) The Jurisdictional Issue

 

                   Per curiam: There is no basis for this Court to interfere with the Court of Appeal's decision to grant respondent's applications for leave to appeal and for an extension of time for appealing. The New Brunswick Court of Appeal had inherent jurisdiction under s. 8(2) of the Judicature Act to grant leave to appeal to a non‑party. The jurisdiction of the Court of Appeal with respect to practice and procedure is, except as modified by legislation, essentially that exercised by the High Court of Chancery in England. A review of the cases of that Court indicates that in a proper case the practice of the Court was to permit a grant of leave to appeal to a person not a party to an action. The Court of Appeal, under its Rules of Court, also had jurisdiction to grant the application for an extension of time. Such jurisdiction was also present in the early chancery practice in the case of an application for leave to appeal brought by a non‑party and the present rules did not affect that jurisdiction. No one factor or group of factors was determinative of how the Chancery Court would exercise its discretion in a given situation; rather, it was a combination of the relevant factors. In the present case, the Court of Appeal, acting within its jurisdiction, took into consideration all the relevant factors and granted the applications. It exercised its discretion in a judicial manner and its decision is not subject to appeal for error.

 

Cases Cited

 

                   Re Securities Insurance Co., [1894] 2 Ch. 410; Re Padstow Total Loss and Collision Assurance Association (1882), 20 Ch. D. 137; Gwynne v. Edwards (1845), 9 Beav. 22; Re Madras Irrigation and Canal Co.; Wood v. Madras Irrigation and Canal Co. (1883), 23 Ch. D. 248; Re Markham (1880), 16 Ch. D. 1; DuMoulin v. Langtry (1886), 13 S.C.R. 258; DuMoulin v. Langtry (1885), 11 O.A.R. 544; Re Henderson and Township of West Nissouri (1911), 23 O.L.R. 651; Fussel v. Dowding (1884), 27 Ch. D. 237; Curtis v. Sheffield (1882), 21 Ch. D. 1; Re Manchester Economic Building Society (1883), 24 Ch. D. 488; Cairns v. Cairns, [1931] 4 D.L.R. 819; Re Wigfull & Sons', Lim. Trade Mark (1918), 88 L.J. Ch. 30; The Queen v. E. & A. Leduc Ltée, [1955] Ex. C.R. 286; Bank of Nova Scotia v. Brown (1967), 40 N.B.R. (2d) 245; Lane v. Esdaile, [1891] A.C. 210; Ernewein v. Minister of Employment and Immigration, [1980] 1 S.C.R. 639; MacDonald v. City of Montréal, [1986] 1 S.C.R. 460, referred to.

 

                                               (2) The Constitutional Issue

 

                   Per Beetz, Estey, Chouinard, Lamer and Le Dain JJ.: The principles of natural justice as well as s. 13(1) of the Official Languages of New Brunswick Act entitle a party pleading in a court of New Brunswick to be heard by a court, the member or members of which are capable by any reasonable means of understanding the proceedings, the evidence and the arguments, written and oral, regardless of the official language used by the parties. But no such entitlement can be derived from s. 19(2)  of the Canadian Charter of Rights and Freedoms . The rights guaranteed by s. 19(2)  with respect to the courts of New Brunswick are of the same nature and scope as those guaranteed by s. 133  of the Constitution Act, 1867  with respect to the courts of Canada and the courts of Quebec. The language of s. 19  was clearly and deliberately borrowed from s. 133  and should be similarly construed. These rights are essentially language rights unrelated to and not to be confused with the requirements of natural justice. They vest in the speaker or in the writer or issuer of court processes and give the speaker or the writer the constitutionally protected power to speak or to write in the official language of his choice. But there is no language guarantee, either under s. 133  of the Constitution Act, 1867  or s. 19  of the Charter , that the speaker will be heard or understood, or that he has the right to be heard or understood in the language of his choice.

 

                   This interpretation of s. 19(2)  does not offend s. 16  of the Charter  which contains a principle of advancement in the equality of status or use of the two official languages. The principle of advancement is linked with the legislative process referred to in s. 16(3)  and the legislative process, unlike the judicial one, is a political process particularly suited to the advancement of rights founded on political compromise.

 

                   The common law right of the parties to be heard and understood by a court and the right to understand what is going on in court is not a language right but an aspect of the right to a fair hearing. This right belongs to the category of rights which in the Charter  are designated as legal rights and protected at least in part by provisions such as those of ss. 7  and 14 . It would constitute an error to import the requirements of natural justice into language rights, or to relate one type of right to the other. Unlike language rights which are based on political compromise, legal rights tend to be seminal in nature because they are rooted in principle. Some of them, such as the one expressed in s. 7  of the Charter , are so broad as to call for frequent judicial determination. Language rights, on the other hand, although some of them have been enlarged and incorporated into the Charter , remain nonetheless founded on political compromise. This essential difference between the two types of rights dictates a distinct judicial approach with respect to each. More particularly, the courts should pause before they decide to act as instruments of change with respect to language rights. This is not to say that language rights provisions are cast in stone and should remain immune altogether from judicial interpretation. But the courts should approach them with more restraint than they would in construing legal rights.

 

                   Finally, it is not possible to conclude that Stratton J.A. was disqualified. In the absence of any system of testing, it is for the judge to assess in good faith and in as objective a manner as possible, his level of understanding of the language of the proceedings. Here, it cannot be inferred, from Stratton J.A.'s accession to counsel's request that he refer the applications to a bilingual judge, that he necessarily agreed with the appellants that his degree of understanding of the French language was inadequate. From his conduct it may be inferred that he considered that he had an adequate understanding of the French language to sit on the case in accordance with the requirements of natural justice and of s. 13(1) of the Official Languages of New Brunswick Act. The fact that counsel did not raise the issue of Stratton J.A.'s competence to sit on the merits of the applications is very significant.

 

                   Per Dickson C.J.: The constitutional question must be answered in the affirmative. Section 19(2)  of the Charter  provides to litigants the right to use the official language of their choice in proceedings before any court of New Brunswick. This right includes not only the right to make oral and written submissions in the language chosen by the individual but also, to make this right meaningful, the right to be understood by the judge or judges hearing the case, whether directly or through other means. To decide otherwise would be to give a narrow reading to the constitutional and fundamental right to use the official language of one's choice in the court. Such a result would be inconsistent with this Court's liberal construction of language rights and would frustrate the broad remedial purpose of the language guarantees provided in the Charter . Section 16 , which provides specific modalities to achieve the equality of status of the two official languages, is a strong indicator of that purpose. By adopting ss. 16  to 22 , the federal government of Canada and New Brunswick have demonstrated their commitment to official bilingualism within their respective jurisdictions. Although language rights in the courts are conceptually distinct from fair hearing rights, there is a certain degree of overlap between them. Both are concerned in part with effective communication between adjudicator and litigant.

 

                   On the facts of the present case, s. 19(2)  of the Charter  was not violated. It cannot be inferred from Stratton J.A.'s decision to refer the case to a bilingual judge that he was incompetent to hear submissions in French. Moreover, where there is no clear evidentiary basis to support the allegations of incompetence ‑‑ in this case, two conflicting affidavits ‑‑ good faith must be presumed on the part of judges. Therefore, in the absence of any objection at the time of the hearing to the presence of Stratton J.A. on the panel and in the absence of convincing evidence, it must be assumed that Stratton J.A. had sufficient knowledge of French to understand the submissions made by the appellants.

 

                   Per Wilson J.: There is no doubt that the constitutional question must be answered in the affirmative. Judges who sit on a case must be able to understand the proceedings, the evidence and the arguments regardless of whether the case was being heard in English or in French. This, indeed, is a requirement of due process. The protection afforded by s. 19(2) , however, was intended to do more than duplicate the pre‑ and post‑Charter  entitlement to rudimentary fairness. The legislative context of s. 19 , in particular s. 16 , and the existing jurisprudence on linguistic rights developed under s. 133  of the Constitution Act, 1867  support that view. In fact, given Canada's fundamental commitment to the equal status of the two official languages contained in s. 16  of the Charter  and the principle of gradual progression towards the ultimate goal of bilingualism implied by that commitment, the content of a litigant's right under s. 19  cannot be perceived as static but as gradually expanding over the years to meet increasing social expectations. The courts cannot define in futuro what is going to be required from time to time to satisfy the litigant's language right but they can determine ex post facto whether or not it was satisfied in a particular case. At the present time, to make the litigant's linguistic right meaningful in the context of the court's process, the judge's level of comprehension must go beyond a mere literal understanding of the language used by counsel. It must be such that the full flavour of the argument can be appreciated. The judge is the sole arbiter of his level of comprehension and he must determine that level in good faith and in as objective a manner as possible. Such determination can be challenged but only on the basis of proof.

 

                   In the case at bar, in the absence of evidence to the contrary, it must be assumed that Stratton J.A. applied this standard to himself and concluded that he met it. The inference that he considered his level of understanding of the French language inadequate cannot be drawn from the fact that he acceded to counsel's request to refer the applications for leave to appeal and for an extension of time to appeal to a bilingual judge. Rather he responded with sensitivity to the concern expressed by counsel, a concern not repeated before the panel of three.

 

                   Section 13(1) of the Official Languages of New Brunswick Act does not formulate a standard higher than the one found in s. 19(2) . Section 13(1) provides that a litigant shall not be disadvantaged by his language choice. In order to take advantage of the protection afforded by that section, a litigant must not only assert the disadvantage, he must establish it. This has not been done in this case.

 

Cases Cited

 

By Beetz J.

 

                   MacDonald v. City of Montréal, [1986] 1 S.C.R. 460, applied; Jones v. Attorney General of New Brunswick, [1975] 2 S.C.R. 182, referred to.

 

By Dickson C.J.

 

                   Jones v. Attorney General of New Brunswick, [1975] 2 S.C.R. 182; Attorney General of Quebec v. Blaikie, [1979] 2 S.C.R. 1016; Attorney General of Quebec v. Blaikie, [1981] 1 S.C.R. 312; Reference re Manitoba Language Rights, [1985] 1 S.C.R. 721; Mercure v. Attorney General of Saskatchewan, [1986] 2 W.W.R. 1; R. v. Tremblay (1985), 20 C.C.C. (3d) 454; Paquette v. R. in Right of Canada, [1985] 6 W.W.R. 594; Robin v. Collège de Saint‑Boniface (1984), 30 Man. R. (2d) 50; MacDonald v. City of Montréal, [1986] 1 S.C.R. 460; Law Society of Upper Canada v. Skapinker, [1984] 1 S.C.R. 357; Hunter v. Southam Inc., [1984] 2 S.C.R. 145; R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486; Bilodeau v. Attorney General of Manitoba, [1986] 1 S.C.R. 449, referred to.

 

By Wilson J.

 

                   Air Canada v. Joyal, [1982] C.A. 39, 134 D.L.R. (3d) 410, rev'g [1976] C.S. 1211; Association des Gens de l'Air du Québec Inc. v. Lang, [1977] 2 F.C. 22, aff'd [1978] 2 F.C. 371; Jones v. Attorney General of New Brunswick, [1975] 2 S.C.R. 182; Attorney General of Ontario v. Reale, [1975] 2 S.C.R. 624; Unterreiner v. The Queen (1980), 51 C.C.C. (2d) 373; Attorney General of Quebec v. Blaikie, [1979] 2 S.C.R. 1016; Attorney General of Quebec v. Blaikie, [1981] 1 S.C.R. 312; Reference re Manitoba Language Rights, [1985] 1 S.C.R. 721; Miller v. The Queen, [1970] S.C.R. 214; Veuillette v. The King (1919), 58 S.C.R. 414; Rural Municipality of De Salaberry v. Robidoux, Man. Prov. Ct., June 8, 1981; R. v. Mercure, [1981] 4 W.W.R. 435 (Sask. Prov. Ct.), aff'd [1986] 2 W.W.R. 1 (Sask. C.A.); R. v. Tremblay (1985), 20 C.C.C. (3d) 454; Paquette v. R. in Right of Canada, [1985] 6 W.W.R. 594; Robin v. Collège de Saint‑Boniface (1984), 30 Man. R. (2d) 50 (C.A.), aff'g (1984), 28 Man. R. (2d) 301 (Q.B.), referred to.

 

Statutes and Regulations Cited

 

Act for the Improvement of the Practice in the Court of Chancery, 1839 (N.B.), 2 Vict., c. 35, s. XIII.

 

Act relating to the administration of Justice in Equity, 1854 (N.B.), 17 Vict., c. 18, ss. 1, 2.

 

Act Respecting Practice and Proceedings in Supreme Court in Equity, 1890 (N.B.), c. 4, s. 131.

 

Canadian Charter of Rights and Freedoms , ss. 1 , 2 , 7 , 14 , 15 , 16 , 17 , 18 , 19 , 20 , 21 , 22 , 24 , 27 .

 

Constitution Act, 1867 , s. 133 .

 

Constitution Act, 1982 , ss. 41 , 43 , 52 , 55 .

 

Judicature Act, R.S.N.B. 1927, c. 113, ss. 8(1), 23.

 

Judicature Act, R.S.N.B. 1952, c. 120, ss. 8(2), 23.

 

Judicature Act, R.S.N.B. 1973, c. J‑2, ss. 1 [am. 1978 (N.B.), c. 32, s. 1(b)], 2(1) [rep. & subs. 1978 (N.B.), c. 32, s. 2 ; am. 1979 (N.B.), c. 36, s. 1], 8(2) [rep. & subs. 1978 (N.B.), c. 32, s. 8; am. 1979 (N.B.), c. 36, s. 1], 21.

 

Judicature Act, 1906, 1906 (N.B.), c. 37, ss. 3, 6 , 19 , 20 .

 

Judicature Act, 1909, 1909 (N.B.), c. 5, ss. 3 , 15 .

 

Official Languages Act, R.S.C. 1970, c. O‑2, s. 2 .

 

Official Languages (Documents) Regulation, (N.B.) Reg. 76‑47.

 

Official Languages of New Brunswick Act, R.S.N.B. 1973, c. O‑1, ss. 2, 13(1), 13(1.1) [added 1982 (N.B.), c. 47, s. 1], 15 [rep. & subs. 1975 (N.B.), c. 42, s. 2].

 

Rules of Court of New Brunswick (1982), Rules 1.04 "Court", 3.02, 9, 15, 62.03, 62.21.

 

Schools Act, R.S.N.B. 1973, c. S‑5.

 

Authors Cited

 

Barristers' Society of New Brunswick, Final Report. Committee on Integration of the Two Official Languages in the Practice of Law, 1981.

 

Canada, Royal Commission on Bilingualism and Biculturalism. Report of the Royal Commission on Bilingualism and Biculturalism, Book I, The Official Languages, Ottawa, Queen's Printer, 1967.

 

Daniell's Chancery Practice, vols. I & II, 8th ed. by S. E. Williams and F. Guthrie‑Smith, London, Stevens & Sons Ltd., 1914.

 

Gautron, A. "French/English Discrepancies in the Canadian Charter of Rights and Freedoms " (1982), 12 Man. L.J. 220.

 

Jacob, I. H. "The Inherent Jurisdiction of the Court" (1970), 23 Current Legal Problems 23.

 

Katz, L. "Are There Constitutionally Guaranteed Language Rights in Criminal Code  Proceedings" (1973), 11 Osgoode Hall L.J. 545.

 

Magnet, J. E. "The Charter 's Official Languages Provisions: The Implications of Entrenched Bilingualism" (1982), 4 Supreme Court L.R. 163.

 

New Brunswick, Official Languages Branch. Report of the Task Force on Official Languages, Towards Equality of the Official Languages in New Brunswick, Fredericton, 1982.

 

Smith, J. S. A Practice of the Court of Chancery, London, William G. Benning & Co., 1855.

 

Supreme Court Practice, 1985, vol. 1 by Jack I. H. Jacob ed. in chief, London, Sweet & Maxwell Ltd. and Stevens & Sons Ltd., 1984.

 

Tremblay, A. "L'interprétation des dispositions constitutionnelles relatives aux droits linguistiques" (1983), 13 Man. L.J. 651.

 

Tremblay, A. "The Language Rights (Ss. 16  to 23 )" in W. S. Tarnopolsky and G.‑A. Beaudoin eds., The Canadian Charter of Rights and Freedoms : Commentary, Toronto, Carswells, 1982.

 

                   APPEAL from a judgment of the New Brunswick Court of Appeal (1984), 8 D.L.R. (4th) 238, 54 N.B.R. (2d) 198, 140 A.P.R. 198, granting respondent's applications for leave to intervene and to appeal a judgment of Richard C.J.Q.B. (1983), 48 N.B.R. (2d) 361, 126 A.P.R. 361 (clarified (1983), 50 N.B.R. (2d) 41, 131 A.P.R. 41; (1983), 51 N.B.R. (2d) 219, 134 A.P.R. 219). Appeal dismissed.

 

                   Maurice F. Bourque and Robert Décary, for the appellants.

 

                   John C. Friel, for the respondent.

 

                   Alban Garon, Q.C., and Roger Roy, for the intervener the Attorney General of Canada.

 

                   Bruce Judah, for the intervener the Attorney General for New Brunswick.

 

 

                   The following are the reasons delivered by

 

1.                The Chief Justice‑‑I agree with my colleagues, Beetz and Wilson JJ. in dismissing the appeal. I adopt the reasoning of Wilson J. on the issues relating to the inherent jurisdiction of the New Brunswick Court of Appeal and its exercise of discretion. On the constitutional question, I am of the view that an affirmative response should be given.

 

2.                The constitutional question was stated as follows:

 

Does s. 19(2)  of the Canadian Charter of Rights and Freedoms  entitle a party pleading in a court of New Brunswick to be heard by a court, the member or members of which are capable of understanding the proceedings, the evidence and the arguments, written and oral, regardless of the official language used by the parties?

 

                                                                     I

 

The Factual Context

 

3.                The facts giving rise to the litigation and the motion for leave to appeal by a non‑party are summarized by Wilson J. I shall confine my review of the facts to those which are pertinent to the constitutional question. The appellants, the Société des Acadiens du Nouveau‑Brunswick Inc. and the Association des conseillers scolaires francophones du Nouveau‑Brunswick, allege that their constitutional language rights were infringed when Stratton J.A., whose comprehension of French is contested, heard an application for leave to appeal as part of a panel of three judges. The hearing took place in both French and English. The appellants contend that Stratton J.A. did not have sufficient French language abilities to sit on the case.

 

4.                Initially, the application was scheduled to be heard by Stratton J.A. alone. At the outset of the hearing of the motion, the appellants requested that the matter be heard by a bilingual judge. Stratton J.A. acceded to this request and referred the matter to Angers J.A. When Angers J.A. decided that the matter should be heard by a panel of three judges, Stratton J.A. sat as one of the panel members along with Angers and La Forest JJ.A., despite his earlier decision not to hear the case alone. At the time of the hearing before the panel, the appellants did not object to Stratton J.A.'s appearance on the bench.

 

                                                                    II

 

The Interpretation of S. 19(2)  of the Canadian Charter of Rights and Freedoms 

 

5.                The specific Charter  provision relied on by the appellants is s. 19(2) , which provides:

 

                   19. (1) ...

 

                   (2) Either English or French may be used by any person in, or in any pleading in or process issuing from, any court of New Brunswick.

 

6.                The question we must answer is whether the right to choose which language to use in court includes the right to be understood by the judge or judges hearing the case. In the context of this appeal we need not resolve all of the ancillary issues which will arise under s. 19 . In particular, we need not determine whether the assistance of interpreters or simultaneous translation would meet the requirement that a litigant be understood by the court. Stratton J.A. did not rely on the assistance of either. No evidence was adduced as to the effectiveness of interpreters or of simultaneous translation, in the context of s. 1  of the Charter  or otherwise. No argument was addressed to this point and indeed counsel specifically requested that the Court refrain from deciding this issue in this case. Thus, we need only consider whether s. 19(2)  gave the litigants in this case a right to be fully understood by the panel of three judges, including Stratton J.A.

 

7.                In interpreting Charter  provisions, this Court has firmly endorsed a purposive approach: see, for example, Law Society of Upper Canada v. Skapinker, [1984] 1 S.C.R. 357 at pp. 366‑68; Hunter v. Southam Inc., [1984] 2 S.C.R. 145 at pp. 155‑56; R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295 at p. 344; Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486 at pp. 499‑500. To give effect to a purposive approach in the language context, it is important to consider the constitutional antecedents of the Charter  language protections, the cardinal values and purpose of the guarantees, the words chosen to articulate the rights, the character and larger objects of the Charter , and the purpose and meaning of other relevant Charter  rights and freedoms. It is to this task that I now turn.

 

(a) Pre‑Charter  Language Protections

 

8.                It has been suggested that because of the similarity of the language in s. 133  of the Constitution Act, 1867  and s. 19(2)  of the Charter  the jurisprudence under the former will be influential in determining the outcome of Charter  litigation. The actual wording of s. 19(2)  parallels in part s. 133 .

 

9.                I wish to make three preliminary observations with respect to the usefulness of s. 133  case law in interpretation of the Charter  language guarantees. First, the specific issue to be resolved in the case at bar has not been decided in the context of s. 133  and related provisions; there is considerable litigation in courts across Canada on this very question. See Mercure v. Attorney General of Saskatchewan, [1986] 2 W.W.R. 1 (Sask. C.A.), leave to appeal granted by this Court, January 27, 1986; Robin v. Collège de Saint‑Boniface (1984), 30 Man. R. (2d) 50 (C.A.); R. v. Tremblay (1985), 20 C.C.C. (3d) 454 (Sask. Q.B.); Paquette v. R. in Right of Canada, [1985] 6 W.W.R. 594 (Alta. Q.B.) It is not within the scope of this case to give a definitive interpretation to s. 133  and related provisions vis‑à‑vis the language rights of litigants. I leave that debate to another day.

 

10.              Secondly, despite the similarity between s. 133  and s. 19(2) , we are dealing with different constitutional provisions enacted in different contexts. In my view, the interpretation of s. 133  of the Constitution Act, 1867  is not determinative of the interpretation of Charter  provisions.

 

11.              Finally, although the specific issue raised in this appeal has not been decided in a s. 133  context, there is much to be learned about the general approach adopted by this Court to constitutional language protections from a review of the jurisprudence under s. 133  and related provisions. The full text of s. 133  reads:

 

                   133. Either the English or the French Language may be used by any Person in the Debates of the Houses of the Parliament of Canada and of the Houses of the Legislature of Quebec; and both those Languages shall be used in the respective Records and Journals of those Houses; and either of those Languages may be used by any Person or in any Pleading or Process in or issuing from any Court of Canada established under this Act, and in or from all or any of the Courts of Quebec.

 

                   The Acts of the Parliament of Canada and of the Legislature of Quebec shall be printed and published in both those Languages.

 

(Emphasis added.)

 

12.              The first decision of note is Jones v. Attorney General of New Brunswick, [1975] 2 S.C.R. 182, in which the Court concluded that s. 133  did not preclude the conferring of additional rights or privileges beyond those provided in s. 133 . The Court thereby adopted a liberal interpretive approach which would enhance the protection of language rights by endorsing supplementary statutory reform. In analyzing the limited rights conferred in s. 133 , Laskin C.J. also held, at p. 193, that it provided, inter alia, a constitutionally based right to any person to use English or French in any pleading in any federally established court or any court of Quebec.

 

13.              In Attorney General of Quebec v. Blaikie, [1979] 2 S.C.R. 1016 (Blaikie No. 1), the Court held that ss. 7 ‑13 of Chapter III of Title I of the Charter of the French Language, 1977 (Que.), c. 5, violated s. 133 . The provisions in question stipulated that French was to be the language of the legislature and the courts in Quebec and made the French text of statutes and regulations the only official version. These provisions were found by the Court to violate the linguistic duality contemplated in s. 133 . In interpreting s. 133  in Blaikie No. 1 as well as in the follow‑up decision, Attorney General of Quebec v. Blaikie, [1981] 1 S.C.R. 312 (Blaikie No. 2), the Court revealed a willingness to expand the ordinary meaning of the words "Acts" and "Courts" in s. 133  to avoid frustrating the underlying purpose of the language guarantees.

 

14.              In Blaikie No. 2 the Court also acknowledged that the right to use either French or English in court imposes affirmative obligations on the state to make that right meaningful. Thus in deciding that court rules of practice should be bilingual, the Court stated at p. 332:

 

                   The point is not so much that rules of practice partake of the legislative nature of the Code of which they are the complement. A more compelling reason is the judicial character of their subject‑matter for which s. 133  makes special provision.... All litigants have the fundamental right to choose either French or English and would be deprived of this freedom of choice should such rules and compulsory forms be couched in one language only.

 

15.              The decision in Reference re Manitoba Language Rights, [1985] 1 S.C.R. 721, addressed the question of the constitutional necessity of enacting, printing and publishing bilingual legislation in Manitoba, pursuant to s. 23 of the Manitoba Act, 1870 (which parallels s. 133 ). In concluding that bilingual laws were required, the Court held, at p. 739, that the purpose of both s. 23 of the Manitoba Act, 1870 and s. 133  of the Constitution Act, 1867  was "to ensure full and equal access to the legislatures, the laws and the courts for francophones and anglophones alike". The Court also stated at p. 744:

 

                   Section 23 of the Manitoba Act, 1870 is a specific manifestation of the general right of Franco‑Manitobans to use their own language. The importance of language rights is grounded in the essential role that language plays in human existence, development and dignity. It is through language that we are able to form concepts; to structure and order the world around us. Language bridges the gap between isolation and community, allowing humans to delineate the rights and duties they hold in respect of one another, and thus to live in society.

 

16.              The final two decisions of this Court I wish to discuss are MacDonald v. City of Montréal, [1986] 1 S.C.R. 460, and Bilodeau v. Attorney General of Manitoba, [1986] 1 S.C.R. 449, which are being rendered concurrently with this judgment. Both raised the question of whether a unilingual summons for a traffic violation offended the constitutional language provisions. A majority of the Court held in each case that a unilingual summons did meet the constitutional requirements. In my opinion, the outcome in both MacDonald and Bilodeau was clearly required by the words "... either of those Languages may be used ... in any ... Process ...issuing from any Court".

 

17.              The conclusion in each of these cases does not affect the present appeal. Nor would MacDonald and Bilodeau be determinative of the outcome of an appeal similar to the one at bar arising pursuant to s. 133 . Section 133  states clearly that the issuance of process from any court may be in either French or English. In contrast, we are concerned in this case with interpreting the phrase "either of those Languages may be used by any Person ... in ... any Court". This is something quite different from the language used in issuing documents. While s. 133  expressly limits the rights of recipients of court documents by empowering the court to issue documents in a language which the recipient may not understand, no such explicit limitation is to be found with respect to in‑court proceedings. In the absence of such a limitation, it is open for the court to conclude that the litigant's right to use either language entails a right to be understood, just as in Blaikie No. 2, it entailed a right to bilingual rules of practice.

 

18.              In summary, the jurisprudence of this Court under s. 133  of the Constitution Act, 1867  and s. 23 of the Manitoba Act, 1870 reveals for the most part a willingness to give constitutional language guarantees a liberal construction, while retaining an acceptance of certain limits on the scope of protection when required by the text of the provisions.

 

(b)               The Purpose of the Language Rights Protected in the Charter 

 

19.              Linguistic duality has been a longstanding concern in our nation. Canada is a country with both French and English solidly embedded in its history. The constitutional language protections reflect continued and renewed efforts in the direction of bilingualism. In my view, we must take special care to be faithful to the spirit and purpose of the guarantee of language rights enshrined in the Charter . In the words of André Tremblay, in his article "L'interprétation des dispositions constitutionnelles relatives aux droits linguistiques" (1983), 13 Man. L. J. 651 at p. 653:

 

                   [TRANSLATION]  In short, a broad, liberal and dynamic interpretation of the language provisions of the Constitution would be in line with the exceptional importance of their function and would remedy the ills which the new Constitution was undoubtedly meant to address.

 

20.              Sections 16  to 22  of the Charter  entrench two official languages in Canada. They provide language protection in a broad spectrum of public life, including legislatures, courts, government offices and schools. According to s. 16 :

 

                   16. (1) English and French are the official languages of Canada and have equality of status and equal rights and privileges as to their use in all institutions of the Parliament and government of Canada.

 

                   (2) English and French are the official languages of New Brunswick and have equality of status and equal rights and privileges as to their use in all institutions of the legislature and government of New Brunswick.

 

                   (3) Nothing in this Charter  limits the authority of Parliament or a legislature to advance the equality of status or use of English and French.

 

21.              In my opinion, "all institutions of ... government" includes judicial bodies or courts: see Tremblay, "The Language Rights (Ss. 16  to 23 )" in Tarnopolsky and Beaudoin (eds.), The Canadian Charter of Rights and Freedoms : Commentary (1982), 443 at p. 457. Despite academic debate about the precise significance of s. 16 , at the very least it provides a strong indicator of the purpose of the language guarantees in the Charter . By adopting the special constitutional language protections in the Charter , the federal government of Canada and New Brunswick have demonstrated their commitment to official bilingualism within their respective jurisdictions. Whether s. 16  is visionary, declaratory or substantive in nature, it is an important interpretive aid in construing the other language provisions of the Charter , including s. 19(2) .

 

22.              In looking at the Charter  it is worth observing that, unlike s. 133 , the provisions go beyond general principles to specific modalities for the achievement of equality of status in language, and expressly provide in s. 16(3)  for legislative measures to advance the equality of status of the two official languages. Undoubtedly the fact that the two languages are to be of equal status (s. 16(1)  and (2) ) encourages a generous application of such measures and of the Charter  itself in achieving that goal.

 

23.              I should add that the Charter  was designed primarily to recognize the rights and freedoms of individuals vis‑à‑vis the State. When acting in their official capacities on behalf of the State, therefore, judges and court officials do not enjoy unconstrained language liberties. Rather, they are invested with certain duties and responsibilities in their service to the community. This extends to the duty to give a meaningful language choice to litigants appearing before them.

 

(c)               The Right to Use the Official Language of One's Choice

 

24.              Section 19(2)  provides to litigants the right to use the official language of their choice. The essence of this appeal, therefore, is whether this right to "use" French or English in the courts embraces the right to be understood by the court in the language of one's choice as well as the right to make oral and written submissions in that language.

 

25.              There is no disagreement amongst the members of this Court that the right embodies at a minimum the right to speak and make written submissions in the language of one's choice. Must this right, to be meaningful, extend to the right to be understood, either directly or possibly with the aid of an interpreter or simultaneous translation? In my opinion, the answer must be in the affirmative. What good is a right to use one's language if those to whom one speaks cannot understand? Though couched in individualistic terms, language rights, by their very nature, are intimately and profoundly social. We speak and write to communicate to others. In the courtroom, we speak to communicate to the judge or judges. It is fundamental, therefore, to any effective and coherent guarantee of language rights in the courtroom that the judge or judges understand, either directly or through other means, the language chosen by the individual coming before the court.

 

26.              Both parties and the intervenors agreed on this point. As stated by the appellants at p. 10 of their factum:

 

                   [TRANSLATION]  Appellants submit that the right to use French recognized in the Charter  necessarily includes the right to be heard in French and to be understood by the Court.

 

The respondent replied, at p. 5:

 

                   The Respondent affirms that on this point [the constitutional question], it is without doubt that parties to proceedings before any court in New Brunswick have the right to be heard and understood in the official language of their choice.

 

In a similar vein, the Attorney General of Canada stated at p. 3, "it is beyond doubt that the corollary of the right to use French in all cases in the New Brunswick courts is the right to be understood by the court". The Attorney General of New Brunswick agreed. To decide otherwise, in my view, would be to give a narrow reading to the constitutional and fundamental right to use the official language of one's choice in the courts. Such a result would frustrate the broad remedial purposes of the language protections provided in the Charter  and be inconsistent with a liberal construction of language rights.

 

(d)               Language Rights versus Procedural Fairness

 

27.              Language rights in the courts are, in my opinion, conceptually distinct from fair hearing rights. While it is important to acknowledge this distinction, each category of rights does not occupy a watertight compartment. Just as fair hearing rights are, in part, intimately concerned with effective communication between adjudicator and litigant, so too are language rights in the court. There will therefore be a certain amount of overlap between the two. At the same time, each category of rights will continue to address concerns not touched by the other. For example, whether or not an individual is even entitled to an oral hearing comes under the exclusive rubric of natural justice, not language rights.

 

28.              The existence of a certain amount of overlap between various rights and freedoms is not unusual. Rights and freedoms often relate to and supplement each other. For example, the freedom of religion in s. 2 (a) of the Charter  is closely related to the protection against discrimination on the basis of religion in s. 15  and the freedom of assembly and association of religious groups in subsections 2 (c) and (d) respectively. In a similar vein, the protection afforded by common law natural justice requirements or by s. 7  of the Charter  to be heard and understood by the adjudicator in an oral hearing does not undermine the importance of being understood by the adjudicator as an aspect of one's language rights in s. 19  of the Charter .

 

(e) Conclusions Regarding S. 19(2) 

 

29.              In my opinion, the right to use either French or English in court, guaranteed in s. 19(2) , includes the right to be understood by the judge or judges hearing the case. I reiterate that the techniques or mechanisms which might aid in such understanding, such as the use of interpreters or simultaneous translation, are not before us in this appeal.

 

30.              I would answer the constitutional question in the affirmative.

 

31.              It is unnecessary, therefore, to consider the merits of the appellants' submissions on the interpretation of the Official Languages of New Brunswick Act, R.S.N.B. 1973, c. O‑1, s. 13(1) or the common law requirements of natural justice.

 

                                                                   III

 

Language Competence of Stratton J.A.‑‑Was S. 19(2)  Violated?

 

32.              Having decided that s. 19(2)  gives litigants the right to be understood by the judges hearing their case, we must determine whether Stratton J.A. had sufficient abilities in the French language to enable him to understand the submissions made by the appellants. The evidentiary basis for deciding this question is far from satisfactory. It consists of two affidavits and the procedural history of the case.

 

33.              On behalf of the appellants, Léon Richard, Secretary‑General of the Association des conseil‑ lers scolaires francophones du Nouveau‑Brunswick submitted an affidavit in which he stated that he was in the courtroom at the initial hearing before Stratton J.A. Richard maintained that the appellants objected to Stratton J.A. hearing the motion because of his insufficient knowledge of French, both in terms of understanding oral argument and in communicating in French. Richard stated that Stratton J.A. admitted that the objections were well founded and simply said "I shall transfer this matter to one of my bilingual brothers". Richard further stated that the appellants did not object when Stratton J.A. appeared on the panel hearing the case because they were taken by surprise, [TRANSLATION]  "stunned and thrown into confusion".

 

34.              The second affidavit was submitted by D. Leslie Smith, who acted as counsel for the respondent. He maintained that the appellants did not formally "object" to Stratton J.A.'s presence, but simply made a "request" that he transfer the case to a bilingual judge. Smith further stated that it was his "impression" that Stratton J.A. understood the written and oral submissions made in French at the subsequent hearing. This impression came from a comment to Richard in which Stratton J.A. referred to the arguments made by the appellants in their oral submissions.

 

35.              The procedural history of this appeal consists of Stratton J.A's decision to refer the case to Angers J.A. because of the latter's greater competence in French, followed by Stratton J.A.'s reappearance on the three‑judge panel.

 

36.              What conclusions are to be drawn from this factual record? In my view, we cannot infer from Stratton J.A.'s decision to refer the matter to Angers J.A. that he was incompetent to hear submissions in French. I adopt Wilson J.'s comments on this point. Moreover, the fact remains that the appellants did not object to Stratton J.A.'s presence on the panel. Nor do I think we can conclude, on the basis of the affidavit evidence, that Stratton J.A. was unable to understand French. Neither affidavit provides cogent evidence of the language abilities of Stratton J.A. In the absence of any clear evidentiary basis for the appellants' allegations of incompetence, I do not think we can find in their favour. In cases such as these, it is my view that we must presume good faith on the part of judges. In light of the lack of any objection at the time of the hearing and in the absence of convincing evidence, I think we must assume that Stratton J.A. had a sufficient knowledge of French to understand the submissions made by the appellants.

 

                                                                   IV

 

Conclusion

 

37.              With respect to the first issue, I would answer the constitutional question as follows:

 

Question:  Does s. 19(2)  of the Canadian Charter of Rights and Freedoms  entitle a party pleading in a court of New Brunswick to be heard by a court, the member or members of which are capable of understanding the proceedings, the evidence and the arguments, written and oral, regardless of the official language used by the parties?

 

  Answer:  Yes.

 

38.              I have concluded that s. 19(2)  was not violated on the facts of the present case.

 

39.              With respect to the appellants' submissions on the second and third issues, I agree entirely with the analysis and conclusions of Wilson J.

 

40.              Accordingly, I would dismiss the appeal with costs.

 

                   The judgment of Beetz, Estey, Chouinard, Lamer and Le Dain JJ. was delivered by

 

41.              Beetz J.‑‑I have had the advantage of reading the reasons of the Chief Justice and those of Wilson J.

 

42.              I agree with their account of the facts and with their reasons and conclusions on the issue whether the New Brunswick Court of Appeal had inherent jurisdiction to grant leave to appeal as well as on the issue whether the New Brunswick Court of Appeal properly exercised its discretion in this respect.

 

43.              I also agree with them that the appeal should be dismissed with costs.

 

44.              However, I respectfully disagree as to the answer which they would give to the constitutional question and as to their reasons for answering it as they propose.

 

45.              The constitutional question stated by the Chief Justice reads as follows:

 

Does s. 19(2)  of the Canadian Charter of Rights and Freedoms  entitle a party pleading in a court of New Brunswick to be heard by a court, the member or members of which are capable of understanding the proceedings, the evidence and the arguments, written and oral, regardless of the official language used by the parties?

 

46.              The issue raised by this question has to do with the content of the constitutional right to use either English or French in any court of New Brunswick: does this right comprise the right to be heard and understood by the court regardless of the official language used?

 

47.              The issue was different in MacDonald v. City of Montréal, [1986] 1 S.C.R. 460, where what had to be decided was not the content of the right to choose English or French but in whom the right vested, the issuer or the recipient of a summons issued by a Quebec court. However, in MacDonald, submissions were made with respect to communication as a purpose of language rights and with respect to the right to understand judicial processes and proceedings as a requirement of natural justice. These submissions, which are closely related to the issue raised in the case at bar, were considered and discussed in the reasons for judgment. A certain degree of overlapping between the two cases is accordingly inevitable and therefore it will be necessary to quote in this case from the reasons in MacDonald.

 

48.              The other difference between the two cases is that the MacDonald case dealt with s. 133  of the Constitution Act, 1867  whereas the relevant provision in the case at bar is s. 19(2)  of the Canadian Charter of Rights and Freedoms . In my view however, given the similarities of the two provisions, this difference is only one of form, not of substance.

 

49.              Section 19(2)  of the Charter  should be read in the context of that part of the Charter  that is entitled "Official languages of Canada" and comprises ss. 16  to 22 :

 

                   16. (1) English and French are the official languages of Canada and have equality of status and equal rights and privileges as to their use in all institutions of the Parliament and government of Canada.

 

                   (2) English and French are the official languages of New Brunswick and have equality of status and equal rights and privileges as to their use in all institutions of the legislature and government of New Brunswick.

 

                   (3) Nothing in this Charter  limits the authority of Parliament or a legislature to advance the equality of status or use of English and French.

 

                   17. (1) Everyone has the right to use English or French in any debates and other proceedings of Parliament.

 

                   (2) Everyone has the right to use English or French in any debates and other proceedings of the legislature of New Brunswick.

 

                   18. (1) The statutes, records and journals of Parliament shall be printed and published in English and French and both language versions are equally authoritative.

 

                   (2) The statutes, records and journals of the legislature of New Brunswick shall be printed and published in English and French and both language versions are equally authoritative.

 

                   19. (1) Either English or French may be used by any person in, or in any pleading in or process issuing from, any court established by Parliament.

 

                   (2) Either English or French may be used by any person in, or in any pleading in or process issuing from, any court of New Brunswick.

 

                   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 a 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.

 

                   21. Nothing in sections 16  to 20  abrogates or derogates from any right, privilege or obligation with respect to the English and French languages, or either of them, that exists or is continued by virtue of any other provision of the Constitution of Canada.

 

                   22. Nothing in sections 16  to 20  abrogates or derogates from any legal or customary right or privilege acquired or enjoyed either before or after the coming into force of this Charter  with respect to any language that is not English or French.

 

50.              Subject to minor variations of style, the language of ss. 17 , 18  and 19  of the Charter  has clearly and deliberately been borrowed from that of the English version of s. 133  of the Constitution Act, 1867  of which no French version has yet been proclaimed pursuant to s. 55  of the Constitution Act, 1982 . It would accordingly be incorrect in my view to decide this case without considering the interpretation of s. 133  which provides:

 

                   133.  Either the English or the French Language may be used by any Person in the Debates of the Houses of the Parliament of Canada and of the Houses of the Legislature of Quebec; and both those Languages shall be used in the respective Records and Journals of those Houses; and either of those Languages may be used by any Person or in any Pleading or Process in or issuing from any Court of Canada established under this Act, and in or from all or any of the Courts of Quebec.

 

                   The Acts of the Parliament of Canada and of the Legislature of Quebec shall be printed and published in both those Languages.

 

51.              The somewhat compressed and complicated statutory drafting exemplified in s. 133  has been shortened and simplified in ss. 17  to 19  of the Charter , as befits the style of a true constitutional instrument. The wording of the relevant part of s. 133  ("may be used by any Person or in any Pleading or Process in or issuing from ... all or any of the Courts of") has been changed to "may be used by any person in, or in any pleading in or process issuing from, any court of". I do not think that anything turns on this change, which is one of form only.

 

52.              Furthermore, in my opinion, s. 19(2)  of the Charter  does not, anymore than s. 133  of the Constitution Act, 1867 , provide two separate rules, one for the languages that may be used by any person with respect to in‑court proceedings and the languages that may be used in any pleading or process. A proceeding as well as a process have to emanate from someone, that is from a person, whose language rights are thus protected in the same manner and to the same extent, as the right of a litigant or any other participant to speak the official language of his choice in court. Under both constitutional provisions, there is but one substantive rule for court processes and in‑court proceedings and I am here simply paraphrasing what has been said on this point in the MacDonald case, in the reasons of the majority, at p. 484.

 

53.              It is my view that the rights guaranteed by s. 19(2)  of the Charter  are of the same nature and scope as those guaranteed by s. 133  of the Constitution Act, 1867  with respect to the courts of Canada and the courts of Quebec. As was held by the majority at pp. 498 to 501 in MacDonald, these are essentially language rights unrelated to and not to be confused with the requirements of natural justice. These language rights are the same as those which are guaranteed by s. 17  of the Charter  with respect to parliamentary debates. They vest in the speaker or in the writer or issuer of court processes and give the speaker or the writer the constitutionally protected power to speak or to write in the official language of his choice. And there is no language guarantee, either under s. 133  of the Constitution Act, 1867 , or s. 19  of the Charter , any more than under s. 17  of the Charter , that the speaker will be heard or understood, or that he has the right to be heard or understood in the language of his choice.

 

54.              I am reinforced in this view by the contrasting wording of s. 20  of the Charter . Here, the Charter  has expressly provided for the right to communicate in either official language with some offices of an institution of the Parliament or Government of Canada and with any office of an institution of the Legislature or Government of New Brunswick. The right to communicate in either language pos­tulates the right to be heard or understood in either language.

 

55.              I am further reinforced in this view by the fact that those who drafted the Charter  had another explicit model they could have used had they been so inclined, namely s. 13(1) of the Official Languages of New Brunswick Act, R.S.N.B. 1973, c. O‑1:

 

                   13 (1) Subject to section 15 , in any proceeding before a court, any person appearing or giving evidence may be heard in the official language of his choice and such choice is not to place that person at any disadvantage.

 

56.              Here again, s. 13(1) of the Act, unlike the Charter , has expressly provided for the right to be heard in the official language of one's choice. Those who drafted s. 19(2)  of the Charter  and agreed to it could easily have followed the language of s. 13(1) of the Official Languages of New Brunswick Act instead of that of s. 133  of the Constitution Act, 1867 . That they did not do so is a clear signal that they wanted to provide for a different effect, namely the effect of s. 133 . If the people of the Province of New Brunswick were agreeable to have a provision like s. 13(1) of the Official Languages of New Brunswick Act as part of their law, they did not agree to see it entrenched in the Constitution. I do not think it should be forced upon them under the guise of constitutional interpretation.

 

57.              The only other provision, apart from s. 20 , in that part of the Charter  entitled "Official Languages of Canada", which ensures communication or understanding in both official languages is that of s. 18 . It provides for bilingualism at the legislative level. In MacDonald one can read the following passage, in the reasons of the majority, at p.  496:

 

Section 133  has not introduced a comprehensive scheme or system of official bilingualism, even potentially, but a limited form of compulsory bilingualism at the legislative level, combined with an even more limited form of optional unilingualism at the option of the speaker in Parliamentary debates and at the option of the speaker, writer or issuer in judicial proceedings or processes. Such a limited scheme can perhaps be said to facilitate communication and understanding, up to a point, but only as far as it goes and it does not guarantee that the speaker, writer or issuer of proceedings or processes will be understood in the language of his choice by those he is addressing.

 

58.              The scheme has now been made more comprehensive in the Charter  with the addition of New Brunswick to Quebec‑‑and Manitoba‑‑and with new provisions such as s. 20 . But where the scheme deliberately follows the model of s. 133  of the Constitution Act, 1867 , as it does in s. 19(2) , it should, in my opinion, be similarly construed.

 

59.              I must again cite a passage of the reasons of the majority, at p. 500, in MacDonald relating to s. 133  of the Constitution Act, 1867  but which is equally applicable, a fortiori, to the official languages provisions of the Charter :

 

                   This is not to put the English and the French languages on the same footing as other languages. Not only are the English and the French languages placed in a position of equality, they are also given a preferential position over all other languages. And this equality as well as this preferential position are both constitutionally protected by s. 133  of the Constitution Act, 1867 . Without the protection of this provision, one of the two official languages could, by simple legislative enactment, be given a degree of preference over the other as was attempted in Chapter III of Title 1 of the Charter of the French Language, invalidated in Blaikie No. 1. English unilingualism, French unilingualism and, for that matter, unilingualism in any other language could also be imposed by simple legislative enactment. Thus it can be seen that, if s. 133  guarantees but a minimum, this minimum is far from being insubstantial.

 

60.              The common law right of the parties to be heard and understood by a court and the right to understand what is going on in court is not a language right but an aspect of the right to a fair hearing. It is a broader and more universal right than language rights. It extends to everyone including those who speak or understand neither official language. It belongs to the category of rights which in the Charter  are designated as legal rights and indeed it is protected at least in part by provisions such as those of ss. 7  and 14  of the Charter :

 

                   7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

 

                   14. A party or witness in any proceedings who does not understand or speak the language in which the proceedings are conducted or who is deaf has the right to the assistance of an interpreter.

 

61.              The fundamental nature of this common law right to a fair hearing was stressed in MacDonald, in the reasons of the majority, at pp. 499‑500:

 

                   It should be absolutely clear however that this common law right to a fair hearing, including the right of the defendant to understand what is going on in court and to be understood is a fundamental right deeply and firmly embedded in the very fabric of the Canadian legal system. That is why certain aspects of this right are entrenched in general as well as specific provisions of the Charter , such as s. 7 , relating to life, liberty and security of the person and s. 14 , relating to the assistance of an interpreter. While Parliament or the legislature of a province may, pursuant to s. 33  of the Charter , expressly declare that an Act or a provision thereof shall operate notwithstanding a provision included in s. 2  or ss. 7  to 15  of the Charter , it is almost inconceivable that they would do away altogether with the fundamental common law right itself, assuming that they could do so.

 

62.              While legal rights as well as language rights belong to the category of fundamental rights,

 

                   [i]t would constitute an error either to import the requirements of natural justice into...language rights...or vice versa, or to relate one type of right to the other...Both types of rights are conceptually different...To link these two types of rights is to risk distorting both rather than re‑enforcing either.

 

(MacDonald v. City of Montréal, reasons of the majority, at pp. 500‑501).

 

63.              Unlike language rights which are based on political compromise, legal rights tend to be seminal in nature because they are rooted in principle. Some of them, such as the one expressed in s. 7  of the Charter , are so broad as to call for frequent judicial determination.

 

64.              Language rights, on the other hand, although some of them have been enlarged and incorporated into the Charter , remain nonetheless founded on political compromise.

 

65.              This essential difference between the two types of rights dictates a distinct judicial approach with respect to each. More particularly, the courts should pause before they decide to act as instruments of change with respect to language rights. This is not to say that language rights provisions are cast in stone and should remain immune altogether from judicial interpretation. But, in my opinion, the courts should approach them with more restraint than they would in construing legal rights.

 

66.              Such an attitude of judicial restraint is in my view compatible with s. 16  of the Charter , the introductory section of the part entitled "Official Languages of Canada".

 

67.              Section 19(2)  being the substantive provision which governs the case at bar, we need not concern ourselves with the substantive content of s. 16 , whatever it may be. But something should be said about the interpretative effect of s. 16  as well as the question of the equality of the two official languages.

 

68.              I think it is accurate to say that s. 16  of the Charter  does contain a principle of advancement or progress in the equality of status or use of the two official languages. I find it highly significant however that this principle of advancement is linked with the legislative process referred to in s. 16(3) , which is a codification of the rule in Jones v. Attorney General of New Brunswick, [1975] 2 S.C.R. 182. The legislative process, unlike the judicial one, is a political process and hence particularly suited to the advancement of rights founded on political compromise.

 

69.              One should also take into consideration the constitutional amending formula with respect to the use of official languages. Under s. 41 (c) of the Constitution Act, 1982 , the unanimous consent of the Senate and House of Commons and of the legislative assembly of each province is required for that purpose but "subject to section 43 ". Section 43  provides for the constitutional amendment of provisions relating to some but not all provinces and requires the "resolutions of the Senate and House of Commons and of the legislative assembly of each province to which the amendment applies". It is public knowledge that some provinces other than New Brunswick‑‑and apart from Quebec and Manitoba‑‑were expected ultimately to opt into the constitutional scheme or part of the constitutional scheme prescribed by ss. 16  to 22  of the Charter , and a flexible form of constitutional amendment was provided to achieve such an advancement of language rights. But again, this is a form of advancement brought about through a political process, not a judicial one.

 

70.              If however the provinces were told that the scheme provided by ss. 16  to 22  of the Charter  was inherently dynamic and progressive, apart from legislation and constitutional amendment, and that the speed of progress of this scheme was to be controlled mainly by the courts, they would have no means to know with relative precision what it was that they were opting into. This would certainly increase their hesitation in so doing and would run contrary to the principle of advancement contained in s. 16(3) .

 

71.              In my opinion, s. 16  of the Charter  confirms the rule that the courts should exercise restraint in their interpretation of language rights provisions.

 

72.              I do not think the interpretation I adopt for s. 19(2)  of the Charter  offends the equality provision of s. 16 . Either official language may be used by anyone in any court of New Brunswick or written by anyone in any pleading in or process issuing from any such court. The guarantee of language equality is not, however, a guarantee that the official language used will be understood by the person to whom the pleading or process is addressed.

 

73.              Before I leave this question of equality however, I wish to indicate that if one should hold that the right to be understood in the official language used in court is a language right governed by the equality provision of s. 16 , one would have gone a considerable distance towards the adoption of a constitutional requirement which could not be met except by a bilingual judiciary. Such a requirement would have far reaching consequences and would constitute a surprisingly roundabout and implicit way of amending the judicature provisions of the Constitution of Canada.

 

74.              I have no difficulty in holding that the principles of natural justice as well as s. 13(1) of the Official Languages of New Brunswick Act

 

entitle a party pleading in a court of New Brunswick to be heard by a court, the member or members of which are capable of understanding the proceedings, the evidence and the arguments, written and oral, regardless of the official language used by the parties.

 

75.              But in my respectful opinion, no such entitlement can be derived from s. 19(2)  of the Charter .

 

76.              I would answer the constitutional question as follows:

 

A party pleading in a court of New Brunswick is entitled to be heard by a court, the member or members of which are capable by any reasonable means of understanding the proceedings, the evidence and the arguments, written and oral, regardless of the official language used by the parties; this entitlement is derived from the principles of natural justice and from s. 13(1) of the Official Languages of New Brunswick Act however, and not from s. 19(2)  of the Charter .

 

77.              I will leave for another day the question as to the reasonable means necessary to ensure that the member or members of a court understand the proceedings, the evidence and the arguments, written or oral, regardless of the official language used by the parties.

 

78.              It remains to be decided whether Stratton J.A. was disqualified on the ground that his command of the French language was allegedly inadequate.

 

79.              We have two conflicting affidavits on this point and, in my opinion, we should not decide this case, even in part, on the basis of a choice between these affidavits.

 

80.              I agree with the following reasons given by Wilson J. why, on the facts of this case, we cannot reach the conclusion that Stratton J.A. was disqualified:

 

1. In the absence of any system of testing, it is for the judge to assess in good faith and in as objective a manner as possible, his or her level of understanding of the language of the proceedings.

 

2. We cannot infer, from Stratton J.A's accession to counsel's request that he refer the applications to a bilingual judge, that he necessarily agreed with the appellants that his degree of understanding of the French language was inadequate.

 

3. We may infer from the conduct of Stratton J.A. that he considered that he had an adequate understanding of the French language to sit on the case in accordance with the requirements of natural justice and of s. 13(1) of the Official Languages of New Brunswick Act.

 

4. It is very significant that counsel did not raise the issue of Stratton J.A.'s competence to sit on the merits of the applications.

 

81.              I would dismiss the appeal with costs. However, there will be no order as to costs for or against the interveners.

 

                   The following are the reasons delivered by

 

82.              Wilson J.‑‑

 

1. The Facts

 

83.              In January 1982 the appellants, the Société des Acadiens du Nouveau‑Brunswick Inc. and the Association des conseillers scolaires francophones du Nouveau‑Brunswick (the "Society") brought an action seeking declaratory and injunctive relief against the Minority Language School Board No. 50 (the "Board") to prevent it from offering French immersion programs to French‑speaking students in the Board's English schools contrary to the Schools Act, R.S.N.B. 1973, c. S‑5, and the Official Languages of New Brunswick Act, R.S.N.B. 1973, c. O‑1. The merits of that particular action are not presently before this Court but questions arising from the procedural history of the litigation are.

 

84.              In March of 1982 six parents of students attending school in the Grand Falls area sought leave to be added as co‑defendants in the action with the Board. They indicated that they did not have confidence in the Board to represent their interests. The application was denied by Daigle J. on April 27, 1982 on the ground that the Court could settle the matters in dispute without their intervention. The Board was the decision‑making body entrusted by the Schools Act with the responsibilities and obligations pertaining to the education of the children in the district. The parents had failed, in Daigle J.'s view, to establish that the Board did not fully represent their interests. The parents did not appeal his decision.

 

85.              On June 24, 1983 Richard C.J. of the New Brunswick Court of Queen's Bench delivered judgment on the merits of the action in favour of the Society: 48 N.B.R. (2d) 361, 126 A.P.R. 361. Confident that the Board would respect the decision of the Court, he decided not to issue the injunction but reserved jurisdiction for six months in order to do so in the event of non‑compliance. When the Board offered, starting September 1983, an "Extended Core French Program" to twenty‑nine students the Society again asked for an injunction. Richard C.J.Q.B. provided clarifications of the June 24, 1983 decision on October 4, 1983, 50 N.B.R. (2d) 41, 131 A.P.R. 41, and December 9, 1983, 51 N.B.R. (2d) 219, 134 A.P.R. 219, but refused to grant the requested injunction on the ground that his earlier decision might have lacked the necessary clarity. A motion for intervention in the application for the injunction brought by the parents of two children in the program and filed on October 19, 1983 was also rejected by Richard C.J.Q.B. in his decision of December 9, 1983.

 

86.              The Board, despite pressure from parents of the students who would have enrolled in the program, decided not to appeal the June 24, 1983 decision as clarified. The parents, including the six who had originally applied for joinder in March of 1982, banded together and created the respondent Association of Parents for Fairness in Education, Grand Falls District 50 Branch (the "Association") on November 22, 1983. On January 11, 1984 applications for leave to appeal the Chief Justice's judgment and for an extension of the appeal period were filed by the Association pursuant to Rules 15, 3.02 and 9 of the Rules of Court of New Brunswick (1982). A hearing was scheduled for January 20, 1984 before Stratton J.A. in the Court of Appeal. Prior to the hearing the Society requested that the matter be heard by a bilingual judge as some of the presentations were to be in French. Stratton J.A. acceded to the request and referred the matter to Angers J.A. who, after hearing argument, decided that an application for leave to appeal by a person not a party to the original action, resting as it must on the inherent jurisdiction of the Court of Appeal, had to be dealt with by a panel of the Court: 53 N.B.R. (2d) 158, 138 A.P.R. 158. The matter was heard on March 1, 1984 by a panel of three, Stratton J.A. (presiding) and La Forest and Angers JJ.A. The Association was granted leave to appeal and also an extension of time: 54 N.B.R. (2d) 198, 140 A.P.R. 198, 8 D.L.R. (4th) 238. On March 23, 1984 the Association filed a notice of appeal against the three decisions rendered by Richard C.J.Q.B. and on April 11, 1984 the Board filed a notice of cross‑appeal.

 

2. The Issues

 

87.              The Society appeals to this Court on three grounds. The first ground is reflected in the question framed by Dickson C.J. on August 30, 1984 as follows:

 

Does s. 19(2)  of the Canadian Charter of Rights and Freedoms  entitle a party pleading in a court of New Brunswick to be heard by a court, the member or members of which are capable of understanding the proceedings, the evidence and the arguments, written and oral, regardless of the official language used by the parties?

 

The second issue raised by the appellant is whether the New Brunswick Court of Appeal had inherent jurisdiction to grant leave to appeal when the person seeking leave was not a party to the original action and was applying out of time. The third issue is, assuming the Court of Appeal had jurisdiction to grant leave to appeal, did it exercise its discretion properly? It is proposed to deal with the second and third issues first.

 

3.                The Inherent Jurisdiction of the New Brunswick Court of Appeal

 

88.              La Forest J.A. (as he then was) writing for the New Brunswick Court of Appeal concluded that the Court could, pursuant to its inherent jurisdiction, grant the Association leave to be added as a party for the purpose of launching an appeal. According to La Forest J.A. the inherent jurisdiction of the New Brunswick Court of Appeal is derived from s. 8(2) of the Judicature Act, R.S.N.B. 1973, c. J‑2 as amended by 1978 (N.B.), c. 32, s. 8, and 1979 (N.B.), c. 36, s. 1 , which reads as follows:

 

8 (2) The Court of Appeal shall have and exercise appellate jurisdiction, with such original jurisdiction as may be necessary or incidental to the determining of an appeal; and shall have all the jurisdiction and powers possessed by the Court of Appeal immediately before September 4, 1979, with appellate jurisdiction in civil and criminal causes and matters, and with jurisdiction and power to hear and determine motions and appeals respecting any judgment, order or decision of any judge of the Courts.

 

When traced back through its predecessors, this section, he found, vests the powers of the Court of Chancery in the New Brunswick Court of Appeal. The Society had submitted that the jurisdiction of the Court to grant leave must be found in the Rules of Court. However, in La Forest J.A.'s view, the fact that the Rules of Court set out no procedure with respect to leave applications did not prevent the Court from exercising its traditional jurisdiction under s. 8(2). Since the Association had been reasonably diligent in bringing the matter before the Court and no objection had been made by any of the parties to an extension of time, the second motion was also granted.

 

89.              The issue before the Court then is whether the New Brunswick Court of Appeal had inherent jurisdiction to grant leave to appeal to a non‑party when neither of the parties themselves had appealed and the time for appeal had expired.

 

90.              Rule 15 , the rule dealing with interveners, was advanced by the Association in support of its claim for status. The Rule provides:

 

                   15.01 Leave to Intervene as Added Party

 

                   (1) Where a person who is not a party claims

 

(a) an interest in the subject matter of a proceeding,

 

(b) that he may be adversely affected by a judgment in a proceeding, or

 

(c) that there exists between him and one or more of the parties a question of law or fact in common with a question in issue in a proceeding,

 

he may apply to the court by notice of motion for leave to intervene as an added party.

 

 

La Forest J.A. expressly refrained from commenting on the applicability of this rule beyond noting that the word "court" as defined in Rule 1.04 referred only to the Queen's Bench. As mentioned earlier, some of the parents in the Association had sought leave to be added as co‑defendants at trial and been refused. They did not try to appeal that refusal although interlocutory orders are appealable with leave under Rule 62.03. The motion before the Court of Appeal might be viewed, therefore, as an attempt by those parents to do indirectly that which they had failed to do directly, namely try to obtain a reversal of the decision of Daigle J. This assumes, of course, that the Association can be equated with these particular parents even although its membership extends beyond that group, which seems doubtful to say the least. Be that as it may, the Court of Appeal did not deal with the matter under the Rules of Court of New Brunswick but under its inherent jurisdiction. It is noted in any event that Rule 62.21 which confers wide powers on the Court of Appeal expressly provides:

 

                   (6) An interlocutory order or decision from which there has been no appeal shall not operate to prevent the Court of Appeal from rendering any decision or making any order.

 

Moreover, it would appear from the reasons of La Forest J.A. that the Court accepted the sworn statement of the President of the Association that it was not until they had all the documents to study, the original judgment plus the two clarifications, that the full impact of the trial judgment came through to them.

 

91.              Since La Forest J.A. relied for the inherent jurisdiction of the Court on s. 8(2) of the Judicature Act, R.S.N.B. 1973, c. J‑2, as amended, and its predecessor sections, it is necessary to trace the history of that section. I reproduce s. 8(2) here again for convenience.

 

8 (2) The Court of Appeal shall have and exercise appellate jurisdiction, with such original jurisdiction as may be necessary or incidental to the determining of an appeal; and shall have all the jurisdiction and powers possessed by the Court of Appeal immediately before September 4, 1979, with appellate jurisdiction in civil and criminal causes and matters, and with jurisdiction and power to hear and determine motions and appeals respecting any judgment, order or decision of any judge of the Courts.

 

92.              The following provisions of the Judicature Act are also relevant:

 

1 In this Act and in the Rules‑‑

 

"Court" means the Court of Appeal or the Court of Queen's Bench, as the subject or context requires.

 

2(1) The Supreme Court of New Brunswick as constituted before September 4, 1979, shall be continued as courts of record under the names of The Court of Appeal of New Brunswick and The Court of Queen's Bench of New Brunswick.

 

Section 21 of the Judicature Act sets out the relationship between the Act and the Rules of Court:

 

21 The jurisdiction of the Court shall be exercised, so far as regards procedure and practice, in the manner provided by this Act and the Rules, or by rules and orders of the Court made pursuant to this Act, and where no special provision is contained in this Act or in the rules or orders of the Court with reference thereto, it shall be exercised as nearly as may be in the same manner as it might have been exercised prior to the commencement of this Act.

 

The historical antecedents of these provisions are as follows:

 

The Judicature Act, R.S.N.B. 1952, c. 120:

 

                   8. (1) ...

 

                   (2) The Court of Appeal shall have and exercise appellate jurisdiction, with such original jurisdiction as may be necessary or incident to the determining of any appeal; and shall have all the jurisdiction and powers possessed by the Court of Appeal immediately before the commencement of this Act, with appellate jurisdiction in civil and criminal causes and matters, and jurisdiction and power to hear and determine motions and appeals respecting any judgment, order or decision of a judge of the Queen's Bench or Chancery Division, and of any judge of the Court of Appeal.

 

                   23. The jurisdiction of the Court shall be exercised, so far as regards procedure and practice, in the manner provided by this Act, and the Rules, or by Rules and Orders of the Court made pursuant to this Act, and where no special provision is contained in this Act or in any such Rules or Orders with reference thereto, it shall be exercised as nearly as may be in the same manner as the same might have been exercised prior to the commencement of this Act.

 

The Judicature Act, R.S.N.B. 1927, c. 113:

 

                   8. (1) The Court of Appeal shall be always open, but shall hold during each year, in the City of Fredericton five Sessions, to be presided over by the three Judges of the Court of Appeal, for the purpose of hearing and determining all motions and applications that heretofore have been or could have been heard and determined by the Court of Appeal, or that are proper to be heard and determined by a Supreme Court of Record en banc. The Court of Appeal shall have and exercise appellate jurisdiction, with such original jurisdiction as may be necessary or incident to the determination of any appeal; and shall have all the jurisdiction and powers possessed by the Appeal Division of the Supreme Court, immediately before the commencement of this Act, with appellate jurisdiction in civil and criminal causes and matters and jurisdiction and power to hear and determine motions and appeals respecting any judgment, order or decision of any Judge or Judges of the King's Bench or Chancery Division, and of any Judge of the Court of Appeal.

 

                   23. The jurisdiction of the Court shall be exercised (so far as regards procedure and practice) in the manner provided by this Act, and the Rules, or by Rules and Orders of the Court, made pursuant to this Act, and where no special provision is contained in this Act, or in any such Rules or Orders with reference thereto, it shall be exercised as nearly as may be in the same manner as the same might have been exercised prior to the commencement of this Act.

 

The Judicature Act, 1909, 1909 (N.B.), c. 5:

 

                   3. The Supreme Court of New Brunswick as constituted before this Act, a Court of Common Law and Equity and possessing original and appellate jurisdiction in civil and criminal cases, shall continue under the aforesaid name to constitute one Supreme Court of Judicature for New Brunswick.

 

                   15. The jurisdiction of the court shall be exercised (so far as regards procedure and practice) in the manner provided by this Act, and the rules herewith, or by rules and orders of court, to be made pursuant to this Act, and where no special provision is contained in this Act, or in any such rules or orders with reference thereto, it shall be exercised, as nearly as may be, in the same manner as the same might have been exercised prior to the commencement of this Act.

 

The Judicature Act, 1906, 1906 (N.B.), c. 37:

 

                   3. The Supreme Court, Circuit Courts, all Courts of Oyer and Terminer and General Gaol Delivery and the Supreme Court in Equity are hereby abolished, and there is hereby created one Supreme Court of Judicature for the Province, hereinafter called the Court, and to consist of two divisions‑‑The Court of Appeal and The Trial Division. The Court shall be a Court of Record of original jurisdiction and shall, subject to the provisions of this Act and Rules of Court, possess all such powers and authority as by the law of England are incident to a Superior Court of Civil and Criminal Jurisdiction, and shall continue to have, use and exercise the jurisdiction, rights, powers and authority which at the commencement of this Act were vested in, or capable of being exercised by the Supreme Court, either on the law, equity or exchequer side thereof, or otherwise howsoever.

 

                   6. Whenever by any law, statute or custom any jurisdiction, duty, power or authority, whether incident to the administration of justice or not, shall have been conferred or imposed upon the Judges of the Supreme Court or upon any one of them, or upon the Judge in Equity, such jurisdiction, duty, power and authority shall, unless special provision be made to the contrary, be deemed to be conferred and imposed upon the Judges of the Court hereby created, and the same shall be exercised by them in as full and ample a manner as they heretofore have been by the said first named Judges of the Supreme Court, Judge in Equity, or any of them.

 

                   19. The several jurisdictions vested in the Court shall not be exercised except in the name of the Supreme Court of Judicature save as otherwise in this Act or Rules provided.

 

                   20. The jurisdiction of the Court shall be exercised (so far as regards procedure and practice) in the manner provided by this Act, and the Rules herewith, or by Rules and Orders of Court, to be made pursuant to this Act; and where no special provision is contained in this Act, or in any such Rules or Orders, with reference thereto, it shall be exercised as nearly as may be, in the same manner as the same might have been exercised prior to the commencement of this Act.

 

93.              Going even further back one finds the following enactments. In 1854 An Act relating to the administration of Justice in Equity, 1854 (N.B.), 17 Vict., c. 18:

 

                   Be it enacted‑‑1. The Supreme Court shall hear and determine in Equity all causes heretofore cognizable by the Court of Chancery, with the like powers and jurisdiction, principles of equity law, and rules of practice, subject to the regulations in the several Chapters of this Title mentioned; and all suits remaining undetermined in Chancery, together with all the rolls, records, and proceedings of the Court, shall be transferred to the Supreme Court, and be there continued and kept; and such suits, with all other causes, be heard, tried, and determined according to the equity jurisdiction hereby established under the name of "The Supreme Court on the Equity side," or "In Equity;" and the said Court of Chancery is hereby abolished except where it may be necessary for the transaction of business in cases of lunacy.

 

                   2. The practice of the Court of Chancery in England prior to the twenty third day of March one thousand eight hundred and thirty nine, to be applied as has heretofore been done in this Province with respect to the practice of the said Court when this Province was erected, together with the existing rules, orders, practice, and fees, as now established in the Court of Chancery of this Province, whether framed or constituted under the authority of any repealed Act of Assembly or otherwise, subject to the provisions of the several Chapters of this Title, and to any modifications of the whole under the next following Sections, shall be the system of proceeding for the said Supreme Court in Equity.

 

And in 1839, An Act for the Improvement of the Practice in the Court of Chancery, 1839 (N.B.), 2 Vict., c. 35:

 

XIII. And be it enacted, That in all matters relating to the practice of this Court, not otherwise particularly provided for by Legislative enactment or the rules and orders of this Court, the rules of practice of the High Court of Chancery in England, as now established, shall be in force, subject nevertheless to the like exceptions, limitations, restrictions and rules of construction in the application of the same as the practice of the said High Court of Chancery prevailing and in force at the time of the erection of this Province have heretofore been, and subject to be altered, modified and restricted by such rules of practice as may be hereafter from time to time introduced and established in the Court of Chancery of this Province by any Act or Acts of the General Assembly, or the orders of the said Court.

 

(Emphasis added.)

 

94.              As may be seen from these statutes, the jurisdiction of the New Brunswick Court of Appeal is, except as modified by legislation, essentially that exercised by the High Court of Chancery in England. Accordingly, it is through an examination of the Chancery practice that the scope of the Court's jurisdiction in a particular matter must be determined. The appellant Society does not dispute the relevance of Chancery practice. Its position rather is that the present facts do not fall within the principles laid down by the Chancery courts. Is it correct in this?

 

95.              The concept of inherent jurisdiction has been described as "peculiar, amorphous, ubiquitous and pervasive": see I. H. Jacob "The Inherent Jurisdiction of the Court" (1970), 23 Current Legal Problems 23. Jacob points out that the Court's inherent jurisdiction derives from its nature as a court of law (at p. 24):

 

                   Moreover, the term "inherent jurisdiction of the court" is not used in contradistinction to the jurisdiction conferred on the court by statute. The contrast is not between the common law jurisdiction of the court on the one hand and its statutory jurisdiction on the other, for the court may exercise its inherent jurisdiction even in respect of matters which are regulated by statute or by rule of court, so long as it can do so without contravening any statutory provision. There is, nevertheless, an important difference between the nature of the inherent jurisdiction of the court and its statutory jurisdiction. The source of the statutory jurisdiction of the court is of course the statute itself, which will define the limits within which such jurisdiction is to be exercised, whereas the source of the inherent jurisdiction of the court is derived from its nature as a court of law, so that the limits of such jurisdiction are not easy to define, and indeed appear to elude definition.

 

He describes the relationship between the Rules of Court and inherent jurisdiction as "generally cumulative and not mutually exclusive" (p. 25).

 

96.              Despite the obvious difficulty in determining the limits of the inherent jurisdiction of the New Brunswick Court of Appeal, it is clear, I believe, that it is not unlimited since its invocation requires an exercise of judicial discretion in accordance with accepted principles. These principles may be found in statute or in inherited court practice. The Rules of Court of New Brunswick delineate the Court's jurisdiction only in so far as they cover a particular situation. Where there is no specific procedure in the Rules of Court then according to s. 8(2) of the Judicature Act the Court of Appeal has in addition "... such original jurisdiction as may be necessary or incidental to the determining of an appeal."

 

4. The Practice in Chancery

 

97.              Appeals launched by persons not party to the original action were not uncommon in the Courts of Chancery. Daniell's Chancery Practice (8th ed. 1914), vol. II, ch. XIX, p. 1111 notes that:

 

                   It is not necessary that the person who appeals should be actually a party to the record; it is sufficient if he has an interest in the question which may be affected by the judgment or order appealed from. The test is whether he could be made a party to the action by service ...; but a person not a party to the record must first apply ex parte to the Court of Appeal for permission to appeal.

 

                                                                    ...

 

                   It is only, however, where the interest of the party wishing to appeal will be bound by the judgment or order that an appeal at the instance of an individual not on the record will be permitted;

 

98.              In John Sydney Smith's text, A Practice of the Court of Chancery (1855), it is stated at p. 282:

 

                   Where a person not a party to the suit is desirous of obtaining a rehearing, he applies for leave to present a petition to rehear.

 

99.              In the English manual, Supreme Court Practice, 1985, vol. 1, the jurisdiction of the English Court of Appeal is discussed as follows at p. 814:

 

But in addition, in accordance with old Chancery practice, any person may appeal by leave (obtained on ex parte motion to the Court of Appeal) if he could by possibility have been made a party to the action by service (per Jessel M.R. in Crawcour v. Salter (1882) 30 W.R. 329; Re Youngs, Doggett v. Revett (1885) 30 Ch. D. 421; The Millwall [1905] P. 162; Re Hambrough's Estate, Hambrough v. Hambrough [1909] 2 Ch. 620, pp. 625, 626; Re B. (an infant) [1958] 1 Q.B. 12; [1957] 3 All E.R. 193, C.A.). It does not require much to obtain leave: a person making out a prima facie case that he is a person interested, aggrieved or prejudicially affected by the judgment or order and should be given leave, will obtain it; but he cannot appeal without it (Re Securities Insurance Co. [1894] 2 Ch. 410, C.A. See also Re Markham (1880) 16 Ch. D. 1, C.A.; Att.‑Gen. v. Ailesbury (1885) 16 Q.B.D. 412; Re Ferdinand, Ex‑Tsar of Bulgaria [1921] 1 Ch. 107, p. 110, C.A.).

 

100.            A number of cases cited in these texts were relied upon by La Forest J.A. in support of the Court's inherent jurisdiction. The most frequently cited authority is the following passage from the decision of Lindley L.J. in Re Securities Insurance Co., [1894] 2 Ch. 410 at p. 413:

 

                   Now, what was the practice of the Court of Chancery before 1862, and what has it been since? I understand the practice to be perfectly well settled that a person who is a party can appeal (of course within the proper time) without any leave, and that a person who without being a party is either bound by the order or is aggrieved by it, or is prejudicially affected by it, cannot appeal without leave. It does not require much to obtain leave. If a person alleging himself to be aggrieved by an order can make out even a prima facie case why he should have leave he will get it; but without leave he is not entitled to appeal.

 

The case involved an attempt by a non‑party who could have been present at the original proceeding to appeal a decision without leave being granted. Kay L.J., concurring with Lindley L.J., commented at p. 414:

 

I think that the 124th section shews that the practice to be observed in winding‑up cases must be the same as the practice of the same Court in cases of appeal in matters other than a winding‑up, and I think it was the invariable practice of the Court of Chancery, where a person was not a party on the record, to treat him as not entitled to appeal against an order made in the cause or matter, although he was aggrieved by it, without getting leave; but if he is aggrieved by it it is very easy for him to obtain leave.

 

101.            A review of the cases listed in the English Manual indicates that in a proper case the practice of the Court of Chancery was to permit a grant of leave to appeal to a person not a party to an action. The test applied in order to determine when a case was a proper case for leave was whether the applicant would have been a proper, if not a necessary, party to the action. A number of factors which affect the exercise of a court's discretion on such an application are reflected in the cases. An appellant should be able to show, for example, (a) that its interest was not represented at the proceeding; (b) that it has an interest which will be adversely affected by the decision; (c) that it is, or can be, bound by the order; (d) that it has a reasonably arguable case; and (e) that the interests of justice in avoiding a multiplicity of proceedings would be served by the grant of leave. Many of these elements are present in any judicial determination as to the appropriate parties to a lawsuit. As pointed out in Daniell's Chancery Practice, op. cit., vol. I, c. III, at p. 147:

 

                   It was the aim of the Court of Chancery to do complete justice by deciding upon and settling the rights of all persons interested in the subject of the suit, so as to make the performance of the order of the Court perfectly safe to those who were compelled to obey it, and to prevent future litigation. For this purpose, it was necessary that all persons materially interested in the subject should generally be made parties to the suit, either as plaintiffs or defendants.

 

102.            The fact that the general approach of the Chancery courts was to add all interested parties does not, however, conclude the issue before us. The main submission of the appellant is that the time for appeal had expired. The respondent Association required therefore not only leave to appeal but an extension of time for appealing. There seems little doubt that the Court could extend time under Rule 3.02 of the Rules of Court of New Brunswick. I will return to that question later. The issue at this point is whether, as the Society submits, the fact that the application for leave is out of time should be determinative against a grant of leave or whether, as the Association submits, it is an altogether separate matter under another application. In other words, in the application for leave to appeal should the Court of Appeal of New Brunswick have been directing its mind to whether a non‑party out of time can be given leave to appeal or merely whether a non‑party can be given leave.

 

103.            Although the precise practice in Chancery with respect to timeliness is difficult to assess from the reports, there are several authorities in which the Court commented on the effect of a lapse of time upon an application by a non‑party for leave to appeal.

 

104.            In Re Padstow Total Loss and Collision Assurance Association (1882), 20 Ch. D. 137, Jessel M.R. granted leave to appeal coupled with an extension of time to a person not a party to a winding‑up order which had been obtained "practically ex parte". The applicant had moved for leave as soon as he became aware of the impact on his interest. Jessel M.R. said at pp. 142‑43:

 

                   The next question is whether we ought to give leave to appeal after this long period of time has elapsed. I think that we ought. The present Appellant knew nothing about the order, and when we come to look at the circumstances it is plain that it was obtained without disclosing to the Court the difficulty as to the constitution of the company, which has been the subject of so much discussion to‑day. It was therefore an order, I do not say obtained from the Court improperly, for I have no doubt that the counsel who obtained it did not know of the difficulty, but made improvidently, and looking at the circumstances under which it was obtained, and the ignorance of the present Appellant of the fact of its being obtained, the case appears to me to fall within the authorities cited in favour of giving leave to appeal after the time has expired.

 

Brett L.J. commented at pp. 145‑46:

 

The case, therefore, as it seems to me, is merely one of an erroneous judgment, and I should think that it was subject to the ordinary rules as to the time for bringing an appeal. It is however hardly necessary to decide that in the present case, for assuming the case to be one where the appeal ought to have been brought within a certain time, it is one in which the Court ought to exercise its power of enlarging the time.

 

(Emphasis added.)

 

105.            The case of Gwynne v. Edwards (1845), 9 Beav. 22, involved an application by a non‑party for a rehearing of estate distribution orders made in 1825. The Court was clearly of the view that time was important and commented on the lapse of time as follows at pp. 34‑35:

 

On the other hand, in cases like the present, where the person desiring a rehearing is not a party to the suit, but is a mere creditor, who has come in under the decree, the party is obliged to ask permission to enable him to file a petition of rehearing, and on such an application, the Court is necessarily bound to look at the circumstances of the case.

 

                   Another objection is the lapse of time. The decree on further directions was made in 1825, and, therefore, nearly twenty years previous to the last bill being filed. It is said that there is no limit as to the time for obtaining a rehearing. I do not know what authority there is for that proposition; I know, indeed, that by a General Order of this Court, the time is extremely limited; and that a party is obliged to present his petition of appeal within a month after the decree has been pronounced. However, in one case Lord Eldon said, that the Court had so long deviated from that limitation, that he was not justified in ordering a petition of appeal to be taken off the file on that ground. I am not aware that any other time has ever been fixed for presenting petitions of appeal, nevertheless I cannot think it immaterial, that so long a time has elapsed under circumstances shewing that Ramsbottom knew what was going on.

 

                   After all, the question comes to this, whether the decree was not necessarily made with the acquiescence, nay, at the suggestion of the Plaintiff Gwynne, in whose place Ramsbottom desires to place himself. I will read the bill, the state of facts, the pleadings, and, if it should turn out that the circumstances are such as to warrant the fair inference that the decree, whether erroneous or not, was taken, not only with the acquiescence but at the suggestion of the Plaintiff, and with such knowledge as appears from his state of facts, I think I ought not then to grant this application of Ramsbottom, who desires to stand in the place of Gwynne, without which he would have no locus standi. I do not think the lapse of time is to be left out of the question.

 

106.            In Re Madras Irrigation and Canal Co.; Wood v. Madras Irrigation and Canal Co. (1883), 23 Ch. D. 248, a case involving an application by an unsecured creditor not party to the action for leave to appeal a winding‑up order after the statutory appeal period had passed, Jessel M.R. found that the applicant's interests were represented and pointed out that (at pp. 251‑52):

 

Here, however, the applicant is not an actual party. What does he claim? He claims to be in the same position as if he were a party to the winding‑up. By no possibility could he have been made a party to the action, nor can he claim to be in the same position as a party to the action. He comes, therefore, to be put in the same position as if he were a party to the winding‑up, and as more than twenty‑one days have elapsed since he was furnished with a copy of the order, he is out of time. We have, however, a discretion as to letting him in, and the question is, whether we ought to exercise that discretion in his favour. The only special circumstance in his favour is that he was not an actual party. The answer to that is, that the rules in the winding‑up do not require the creditors to be actual parties. They are represented by the official liquidator. The allegation is that the official liquidator did not sufficiently perform his duty with regard to protecting their interests; but they are actually represented by the official liquidator, who ought to protect their interests. I am by no means satisfied that he did not perform his duty, nor am I satisfied that the unsecured creditors had any substantial interest to be protected.

 

Lindley L.J. agreed with this and stated at p. 254:

 

If we could see that any real injustice was done to him, that would be a ground for enlarging the time, and the delay might be explained, but it is difficult to see that any injustice has been done him. We ought to be very slow to give leave to appeal if the appeal is likely to end in nothing, and I am not satisfied that it would end in anything. On the other hand, having regard to the order made by Vice‑Chancellor Hall in Oppenheimer v. British and Foreign Exchange and Investment Bank, 6 Ch. D. 744, I am not sure that it would not. If this gentleman had been in time, possibly he might have got something by his appeal; but the advantage to him is so speculative and the injustice to the other parties interested is so glaring, that as he is out of time I think we should be very wrong if we gave him leave to appeal.

 

107.            In Re Markham (1880), 16 Ch. D. 1, an estate case, leave to appeal was granted a non‑party upon an ex parte application to the Court. The interest of the would‑be appellant in the case had not been represented at a suit for administration of the estate and the application appears to have been brought within four months of the contested order. No comment on the passage of time was made by the Court.

 

108.            The primary concern of the courts in these applications seems to have been whether the would‑be appellants' interests were represented or should have been represented in the original proceeding.

 

109.            In an early case before this Court, DuMoulin v. Langtry (1886), 13 S.C.R. 258, leave was given to a group of churchwardens to bring a per saltum appeal from a decision of the Chancery Division of the High Court of Justice for Ontario. The original action had been carried on by a Rev. DuMoulin who refused to carry the matter to appeal. The Ontario Court of Appeal (1885), 11 O.A.R. 544, refused to allow the churchwardens to carry on the appeal either in their own name or in the name of Rev. DuMoulin. Patterson J.A. commented at p. 549:

 

                   The applicants nevertheless urge that they have an interest in the subject matter of the action such as entitles them to obtain leave from this Court to appeal.

 

                   The application is, I believe, the first of the kind which has been made to this Court. In England it was held, before the Judicature Act, that a party interested, though not a party to the cause, might obtain leave to appeal. Parmiter v. Parmiter, 2 D.F. & J. 526, which was cited by Mr. Howland, was an instance of that, and is also an authority for moving ex parte. If we adopt the practice, we must do so without any express direction, for neither in our Judicature Act, nor in the English Judicature Act, is there any provision on the subject. Applications of the kind seem, in England, to be not uncommon. We have been referred to some cases in which they were made, e.g., Re Markham, 16 Ch. D. 1, and two or three others which I find also in a note at p. 55 of Mr. Langton's edition of Maclennan's Jud. Act. Crawcour v. Salter, 30 W.R. 329, and one or two other cases are there cited as authority for the proposition that one who is not a party can obtain leave only when his interest is such that he might have been made a party by service. This again calls attention to the anomalous nature of this application by parties who, if their contention as to their interest is correct, are already represented on the record by their trustee. But if he is warranted in disclaiming that character, then what is their interest?

 

The action involving the original parties in DuMoulin had been heard in December 1884, the application to the Chancery Division had been brought January 26, 1885 and the motion for leave to this Court appears to have been brought before Strong J. in 1886. No comment was made with respect to the effect of time on the application.

 

110.            The case of DuMoulin was relied on by the Ontario Court of Appeal in Re Henderson and Township of West Nissouri (1911), 23 O.L.R. 651. In Re Henderson, Moss C.J.O. allowed a school board who was not a party to an action to intervene as respondent in an existing appeal to support a particular position. Moss C.J.O. felt that the applicant Board had a sufficiently substantial interest to justify its being made a party. In the Chief Justice's view it was, if not a necessary party, at least a proper party. Moss C.J.O. commented at p. 653:

 

                   In these circumstances, if the township corporation were appellant, instead of respondent, and were proposing not to further prosecute the appeal, the School Board would have little difficulty in procuring itself to be substituted as appellant or to be permitted to carry on the appeal. The practice in such a case was considered by this Court in Langtry v. Dumoulin (1885), 11 A.R. 544, at p. 549. The application was refused, on the ground that the applicants had no interest, and that the defendant Dumoulin was solely interested, and so was dominus litis. But, on application to the Supreme Court of Canada, the applicants were allowed to appeal per saltum to that Court, apparently on the ground that the defendant was not solely interested, but was in some sense a trustee for the applicants: see head‑note to report of the case in the Supreme Court, sub nom. Dumoulin v. Langtry (1886), l3 S.C.R. 258.

 

111.            The matter of appeals by non‑parties after a considerable lapse of time appears to have arisen most frequently in cases dealing with the distribution of estates: see Fussel v. Dowding (1884), 27 Ch. D. 237; Curtis v. Sheffield (1882), 21 Ch. D. 1. Generally the court refused the application because the interest of the individual had been sufficiently represented. In none of the reported decisions was there any indication that the court felt unable to permit an appeal because of jurisdictional limitations. Rather the matter seemed to have been treated as one of discretion.

 

112.            The jurisprudence in Chancery would indicate that while timeliness is an important factor on an application for leave to appeal by a non‑party, it need not be determinative of the result. Concern about timeliness is really a reflection of a concern about factors which underly timeliness, namely prejudice to the original parties, the need for finality in litigation, and third party reliance on judgments. The applicant for leave to appeal who is out of time will have to counter these concerns in order to justify a favourable exercise of discretion by the Court. He will not only have to establish a good positive case for leave; he will also have to overcome the negative factors which might militate against the grant. The Court's evaluation of the negative factors on an application for leave will also be crucial on the application for an extension of time. Indeed, it is difficult, if not impossible, to separate the considerations which pertain to each.

 

5. Extension of Time

 

113.            I turn now to the statutory authority for the New Brunswick Court of Appeal's grant of the Association's motion for an extension of time in which to appeal Richard C.J.Q.B.'s decisions. The jurisdiction of the Court is to be found in Rules 62.03 and 3.02 of the Rules of Court of New Brunswick (1982), which provide as follows:

 

62.03 ...

 

(2) A Notice of Motion for Leave to Appeal (Form 62A) shall be served within 7 days from the date of the order or decision sought to be appealed, or within such further time as is allowed by the judge hearing the motion for leave, and the provisions of Rule 37 apply where not inconsistent with this subrule.

 

3.02 Extension or Abridgment

 

                   (1) Subject to paragraphs (3) and (4), the court may, on such terms as may be just, extend or abridge the time prescribed by an order or judgment or by these rules.

 

                   (2) A motion for extension of time may be made either before or after the expiration of the time prescribed.

 

                   (3) Where the time prescribed by these rules relates to an appeal, only a judge of the Court of Appeal may make an order under paragraph (1).

 

                   (4) Any time prescribed by these rules for serving, filing or delivering a document may be extended or abridged by consent.

 

114.            The decision to extend time for leave to appeal is clearly discretionary and predates the enactment of the Rules of Court. Section 131 of An Act Respecting Practice and Proceedings in Supreme Court in Equity, 1890 (N.B.), c. 4, provided:

 

                   131. The Court or a Judge shall have power to enlarge or abridge the time appointed by the provisions of this Act relating to practice or procedure or fixed by any order enlarging time, for doing any act or taking any proceeding upon such terms (if any) as the justice of the case may require, and any such enlargement may be ordered although the application for the same is not made until after the expiration of the time appointed or allowed.

 

115.            Daniell's Chancery Practice, op. cit., vol. II, ch. XIX, pp. 1127‑28 states:

 

                   Every application to extend the time for appealing will be decided on its own merits; and the power to extend the time is one of judicial discretion, and will be exercised whenever, having regard to the facts of a particular case, justice requires that it should be so exercised.

 

                                                                    ...

 

                   An application for leave to appeal after the expiration of the precribed period should not be made ex parte.

 

116.            Smith in A Practice of the Court of Chancery, op. cit., states that although the time for appeal is limited to a certain period "... the Court may enlarge the time" (p. 283) by virtue of a procedural rule.

 

117.            In Re Manchester Economic Building Society (1883), 24 Ch. D. 488 an extension of time was granted to appeal an order winding up a company. The authority for the extension was found in a rule of the Court authorizing the Court of Appeal to extend time by special leave. Bowen L.J. held that (at p. 503):

 

The section gives leave to the Court of Appeal practically to extend the time for appealing. It seems to me that to attempt in any one case to lay down a set of iron rails on which the discretion of the Court of Appeal was always to be obliged to run, and to say that the leave of the Court would never be granted except in certain special circumstances and in a defined way, would be very perilous. The Rules leave the matter at large. Of course it is to be exercised in the way in which judicial power and discretion ought to be exercised, upon principles which are well understood, but which had better not be defined in a case except so far as may be necessary for the decision of that case‑‑otherwise there is the great danger, as it seems to me, of crystalizing into a rigid definition that judicial power and discretion which the Legislature and the Rules of the Court have for the best of all reasons left undetermined and unfettered. If the Appellant is asking for what is evidently unjust it is clear that he ought not to have it; if he is asking for what may lead to injustice he ought not have it except on the terms which would prevent any injustice possibly being done, and for that reason, if any of the Respondents here had shewn that injustice was likely to arise in their particular case, I think terms ought to have been imposed, but if the person who is asking for leave to appeal after twenty‑one days is only asking for what is just, why should not he have it?

 

In similar vein Brett M.R. commented at p. 497:

 

... I know of no rule other than this, that the Court has power to give the special leave, and exercising its judicial discretion is bound to give the special leave, if justice requires that that leave should be given. The cases which were brought before the Court were cases in which either justice did require that the leave should be given or justice required that it should not be given.

 

118.            The appellant Society relies upon the decision of the Alberta Court of Appeal in Cairns v. Cairns, [1931] 4 D.L.R. 819, in which McGillivray J.A., after emphasizing the discretionary nature of such extensions, suggests a framework for the exercise of the discretion. Some of the elements required to be shown are: (a) a reasonably arguable (prima facie) case on the merits; (b) a satisfactory explanation for the delay; (c) the successful litigant's vested interest in his judgment; (d) whether the applicant had a bona fide intention to appeal within the time limited and (e) that the applicant has not taken any benefit from the judgment sought to be appealed. McGillivray J.A. cites the general principle as stated by Brett M.R. in Re Manchester Economic Building Society, supra, and also the somewhat broader formulation by Swinfen Eady M.R. in Re Wigfull & Sons', Lim. Trade Mark (1918), 88 L.J. Ch. 30 and points out, correctly in my view, that (at p. 829):

 

                   This does not mean that this Court will exercise its discretion loosely. Cusack v. London & N.W.R. Co., [1891] 1 Q.B. 347. In the application of this rule due regard will be had to the successful litigant's vested interest in his judgment, and so the Court will scrutinize with care the material offered in support of a claim to have that interest set aside to see if it establishes those things that I have indicated it is incumbent upon the applicant to prove but once satisfied as to this the Court will grant or refuse the extension of time as the interests of justice seem to require.

 

119.            I would not read the judgment of McGillivray J.A. as an attempt to lay down rigid rules but rather as identifying the type of concerns a court should properly have in mind when deciding whether to exercise its discretion for or against an extension of the appeal period. This was the approach taken by Ritchie J. in The Queen v. E. & A. Leduc Ltée, [1955] Ex. C.R. 286 at p. 288:

 

                   It is not desirable to lay down rigid rules which must be complied with before an extension of time within which to appeal will be granted but in specific cases the reasons advanced to support an application for such an extension may be held insufficient.

 

120.            The New Brunswick Court of Appeal discussed the appropriate guidelines for an application under its Rules in Bank of Nova Scotia v. Brown (1967), 40 N.B.R. (2d) 245. The applicant in that case had applied for an extension of time 3 months after judgment. Bridges C.J.N.B. was of the view that in making such a decision a judge is exercising a judicial discretion and that while an application should contain an explanation for the delay, it is for the judge hearing the application to determine whether the explanation is satisfactory or not. Limerick J.A. in the same case stated (at pp. 249‑50):

 

                   No comprehensive rules have ever been laid down by court decisions as to what will constitute reasonable grounds for granting an extension, each case must be dealt with based on the individual circumstances applicable.

 

                                                                    ...

 

A party who allows the time for exercising his right of appeal to lapse, however, must depend on the indulgence of the court for a hearing and this indulgence should not be requested unless the applicant can establish that there is at least an arguable case for consideration by the court.

 

                   The court or judge has a judicial discretion as to the reasonableness of the excuse for not proceeding in time and as to the adequacy of the grounds for granting the extension; whether the importance of the legal principle to be established on the appeal or needs of justice overweigh the necessity of having an intention to appeal during the time limited, whether error or absence of solicitor constitute adequate grounds are matters for the exercise of a judicial discretion, but some reasonable excuse and grounds should be positively stated in the application.

 

121.            It would appear then that once it is established that a court has jurisdiction to grant leave to appeal to a non‑party and has exercised its discretion in favour of such a grant, then the decision whether or not to grant such non‑party an extension of time is a matter of discretion to be exercised on substantially the same principles as those applicable in the case of an extension of time sought by a party. While the fact that the applicant for leave to appeal is out of time is a factor to be considered on the application for leave and may militate against such a grant, once the court decides to exercise its discretion in favour of a grant of leave it has ipso facto exercised it also in favour of an extension of time.

 

6. Review of Discretion

 

122.            The appellant Society submits in the alternative that even if the New Brunswick Court of Appeal had jurisdiction to grant the Association's applications, it did not exercise its discretion in a judicial manner. This submission echoes the words of Bridges C.J.N.B. in Bank of Nova Scotia v. Brown, supra, where he said at p. 247:

 

If, under such circumstances, he decides to extend the time he is exercising his discretion in a judicial manner and it is not open to us to interfere even though we may believe him to have acted erroneously.

 

123.            The concept of a "judicial exercise of discretion" seems to have two prerequisites, namely (1) that the subject matter be within the jurisdiction of the Court; and (2) that the Court must take into consideration all the relevant factors.

 

124.            Daniell's Chancery Practice, op. cit., vol. II, c. XIX, p. 1128, indicates that generally no appeal will lie from a refusal of a court of appeal to grant special leave to appeal where the time for appealing has expired. The House of Lords' decision in Lane v. Esdaile, [1891] A.C. 210, is cited in support of that proposition. While Lane v. Esdaile dealt with the interpretation to be given to particular legislation on the matter, the concerns articulated by Lord Halsbury L.C. at p. 212 are relevant to the present situation:

 

The result of that would be that in construing this order, which as I have said is obviously intended to prevent frivolous and unnecessary appeals, you might in truth have two appeals in every case in which, following the ordinary course of things, there would be only one; because if there is a power to appeal when the order has been refused, it would seem to follow as a necessary consequence that you must have a right to appeal when leave has been granted, the result of which is that the person against whom the leave has been granted might appeal from that, and inasmuch as this is no stay of proceeding the Court of Appeal might be entertaining an appeal upon the very same question when this House was entertaining the question whether the Court of Appeal ought ever to have granted the appeal.

 

In the same case Lord Herschell commented at p. 214:

 

It is clear that some time must be fixed at which the right of appeal should cease, otherwise parties would never know what their rights were, and there would be no possibility of people being safe in dealing with the fruits of a judgment because the judgment might be still subject to appeal. But then it was thought that there might be special circumstances in which the Court of Appeal might relax that rule and consider that, notwithstanding it, an appeal should be permitted. I think that the matter was intrusted, and intended to be intrusted, to their discretion; and that the exercise of a discretion of that sort intrusted to them is not, within the true meaning of the Appellate Jurisdiction Act, an order or judgment from which there can be an appeal.

 

The comment of Lord Halsbury L.C. was approved by a majority of this Court in the case of Ernewein v. Minister of Employment and Immigration, [1980] 1 S.C.R. 639. Laskin C.J. commented at pp. 646‑47:

 

There are so many considerations that enter into a refusal to give leave as to make the matter one peculiarly for the experienced judgment of the Court from which leave is sought.

 

The concerns articulated in these cases reflect the concept of the inherent jurisdiction of a court to control its own process. Where a court is acting within its jurisdiction and exercises its discretion in a judicial manner then its decision should not be subject to appeal for error.

 

7. Conclusion on the Second and Third Issues

 

125.            I would conclude in the present case that the New Brunswick Court of Appeal has inherent jurisdiction under s. 8(2) of the Judicature Act based on the ancient practice of the High Court of Chancery in England to grant leave to appeal to a non‑party in a proper case. The Court under its Rules of Court has jurisdiction to grant an extension of time for appealing. Such jurisdiction was also present in the early Chancery practice in the case of an application for leave to appeal brought by a non‑party and the present rules do not appear to have affected that jurisdiction. A general framework for the discretionary invocation of the Court's jurisdiction is discernible in the cases and practice in the Chancery courts. No one factor or group of factors was determinative of how the Court would exercise its discretion in a given situation; rather, a combination of the relevant factors was determinative.

 

126.            In this case La Forest J.A. first determined that the Court had inherent jurisdiction in the matter. I think he was correct in this. He then proceeded to find that:

 

(a) the Association was aggrieved and had an interest which was prejudiced by the decision and clarifications of Richard C.J.Q.B.;

 

(b) the School Board did not, nor did it purport to, represent the interests of the members of the Association;

 

(c) the members of the Association had responded as soon as they understood the adverse impact of the decision as clarified;

 

(d) no particular inconvenience would be suffered by the Society other than that of responding to the appeal; and

 

(e) no argument had been made contesting the existence of a prima facie case.

 

Accordingly, leave to appeal was granted. I think this represented a judicial exercise of discretion by the New Brunswick Court of Appeal. There is no basis for this Court to interfere with it.

 

127.            I note that neither party raised the applicability of the principle set out in the majority decision in Ernewein v. Minister of Employment and Immigration, supra. Although Ernewein dealt with a denial of leave to appeal by an appellate court, there would appear to be no reason in principle why it would not apply equally to a grant of leave to appeal by an appellate court. If this is correct, this Court would on the principle of Ernewein have had no jurisdiction to entertain the Society's appeal from the decision of the New Brunswick Court of Appeal. I believe, however, that when the basis of the Society's appeal is that the Appellate Court appealed from was itself without jurisdiction, this would have constituted an exception to the Ernewein principle. The issue, however, is now an academic one in view of this Court's decision in MacDonald v. City of Montréal, [1986] 1 S.C.R. 460, released concurrently herewith.

 

128.            For the foregoing reasons I find that the appellant's second and third grounds of appeal must fail. It is necessary therefore to move to the first ground.

 

8. Section 19(2) of the Charter of Rights and Freedoms

 

129.            The appellant's first ground of appeal is reflected in the constitutional question stated for the Court by the Chief Justice:

 

Does s. 19(2)  of the Canadian Charter of Rights and Freedoms  entitle a party pleading in a court of New Brunswick to be heard by a court, the member or members of which are capable of understanding the proceedings, the evidence and the arguments, written and oral, regardless of the official language used by the parties?

 

However, it became apparent from the submissions of counsel on the hearing that the question as framed could be approached on a number of different levels. Indeed, on one level it was completely non‑contentious. Both sides were able to agree that judges must be able to understand the proceedings, the evidence and the arguments regardless of whether the case was being heard in English or French. Indeed, this was a requirement of due process. Both agreed, therefore, that the answer to the question was Yes. The problems arose when the further questions lurking in the question as framed were laid bare. What level of understanding is required? Who decides whether the appropriate level is attained? Must the understanding be a direct understanding through the language itself or is understanding through the medium of translation adequate? These questions in turn probably depend on the answer to a broader and more difficult question, namely is the level of understanding required merely the level required for due process i.e. that the adjudicator has sufficient understanding of the language to ensure a fair hearing for the litigant? Or is the level to be determined in the context of the principle of equality of status of the two official languages in the court structure? Fortunately we do not have to answer all these questions in this case.

 

130.            The appellant relies on s. 19(2)  of the Charter  as according it a right to be heard and understood in the official language of its choice. It maintains that it was not "heard and understood" by Stratton J.A. It finds further support for its position in s. 13 of the Official Languages of New Brunswick Act, R.S.N.B. 1973, c. O‑1 as amended by 1982 (N.B.), c. 47, s. 1 , which provides:

 


                   13 (1) Subject to section 15 , in any proceeding before a court, any person appearing or giving evidence may be heard in the official language of his choice and such choice is not to place that person at any disadvantage.


                   13 (1) Sous réserve de l'article 15 , dans toute procédure devant un tribunal, toute personne qui comparaît ou témoigne peut être entendue dans la langue officielle de son choix et ne doit être, en fait, nullement défavorisée en raison de ce choix.


 


                   13(1.1)   Subject to subsection (1), a person accused of an offence under an Act, or a regulation of the Province, or a municipal by-law, has the right to have the proceedings conducted in the official language of his choice, and he shall be advised of the right by the presiding judge before his plea is taken.


                   13 (1.1) Sous réserve du paragraphe (1), une personne accusée d’une infraction à une loi ou à un règlement de la province, ou à un arrêté municipal, a droit au déroulement des procédures dans la langue officielle de son choix, et elle doit être informée de ce droit par le juge qui préside au procès avant d’enregistrer son plaidoyer.


 

 

 

The appellant lays heavy stress on the words in s. 13(1) "and such choice is not to place that person at any disadvantage". It is, it says, at a considerable disadvantage if one of the members of the court is not conversant with its language.

 

131.            Since I do not believe that s. 19(2)  of the Charter  can be viewed in isolation I reproduce here for convenience ss. 16  to 22  of the Charter  dealing with Canada's official languages.

 

                                             Official Languages of Canada

 


                   16. (1) English and French are the official languages of Canada and have equality of status and equal rights and privileges as to their use in all institutions of the Parliament and government of Canada.


                   16. (1) Le français et l'anglais sont les langues officielles du Canada; ils ont un statut et des droits et privilèges égaux quant à leur usage dans les institutions du Parlement et du gouvernement du Canada.


 

 


                   (2) English and French are the official languages of New Brunswick and have equality of status and equal rights and privileges as to their use in all institutions of the legislature and government of New Brunswick.


                   (2) Le français et l'anglais sont les langues officielles du Nouveau‑Brunswick; ils ont un statut et des droits et privilèges égaux quant à leur usage dans les institutions de la Législature et du gouvernement du Nouveau‑Brunswick.


 

 


                   (3) Nothing in this Charter  limits the authority of Parliament or a legislature to advance the equality of status or use of English and French.


                   (3) La présente charte ne limite pas le pouvoir du Parlement et des législatures de favoriser la progression vers l'égalité de statut ou d'usage du français et de l'anglais.


 

 


                   17. (1) Everyone has the right to use English or French in any debates and other proceedings of Parliament.

 

                   (2) Everyone has the right to use English or French in any debates and other proceedings of the legislature of New Brunswick.


                   17. (1) Chacun a le droit d'employer le français ou l'anglais dans les débats et travaux du Parlement.

 

 

                   (2) Chacun a le droit d'employer le français ou l'anglais dans les débats et travaux de la Législature du Nouveau‑Brunswick.


 

 


                   18. (1) The statutes, records and journals of Parliament shall be printed and published in English and French and both language versions are equally authoritative.

 

 

                   (2) The statutes, records and journals of the legislature of New Brunswick shall be printed and published in English and French and both language versions are equally authoritative.


                   18. (1) Les lois, les archives, les comptes rendus et les procès‑verbaux du Parlement sont imprimés et publiés en français et en anglais, les deux versions des lois ayant également force de loi et celles des autres documents ayant même valeur.

 

                   (2) Les lois, les archives, les comptes rendus et les procès‑verbaux de la Législature du Nouveau‑Brunswick sont imprimés et publiés en français et en anglais, les deux versions des lois ayant également force de loi et celles des autres documents ayant même valeur.


 

 


                   19. (1) Either English or French may be used by any person in, or in any pleading in or process issuing from, any court established by Parliament.

 

                   (2) Either English or French may be used by any person in, or in any pleading in or process issuing from, any court of New Brunswick.


                   19. (1) Chacun a le droit d'employer le français ou l'anglais dans toutes les affaires dont sont saisis les tribunaux établis par le Parlement et dans tous les actes de procédure qui en découlent.

 

                   (2) Chacun a le droit d'employer le français ou l'anglais dans toutes les affaires dont sont saisis les tribunaux du Nouveau‑Brunswick et dans tous les actes de procédure qui en découlent.


 

 


                   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 a 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.


                   20. (1) Le public a, au Canada, droit à l'emploi du français ou de l'anglais pour communiquer avec le siège ou l'administration centrale des institutions du Parlement ou du gouvernement du Canada ou pour en recevoir les services; il a le même droit à l'égard de tout autre bureau de ces institutions là où, selon le cas:

 

a) l'emploi du français ou de l'anglais fait l'objet d'une demande importante;

 

 

 

b) l'emploi du français et de l'anglais se justifie par la vocation du bureau.

 

 

                   (2) Le public a, au Nouveau‑Brunswick, droit à l'emploi du français ou de l'anglais pour communiquer avec tout bureau des institutions de la législature ou du gouvernement ou pour en recevoir les services.


 

 


                   21. Nothing in sections 16  to 20  abrogates or derogates from any right, privilege or obligation with respect to the English and French languages, or either of them, that exists or is continued by virtue of any other provision of the Constitution of Canada.


                   21. Les articles 16  à 20  n'ont pas pour effet, en ce qui a trait à la langue française ou anglaise ou à ces deux langues, de porter atteinte aux droits, privilèges ou obligations qui existent ou sont maintenus aux termes d'une autre disposition de la Constitution du Canada.


 

 


                   22. Nothing in sections 16  to 20  abrogates or derogates from any legal or customary right or privilege acquired or enjoyed either before or after the coming into force of this Charter  with respect to any language that is not English or French.


                   22. Les articles 16  à 20  n'ont pas pour effet de porter atteinte aux droits et privilèges, antérieurs ou postérieurs à l'entrée en vigueur de la présente charte et découlant de la loi ou de la coutume, des langues autres que le français ou l'anglais.


 

 

 

(a) The Role of S. 16 

 

132.            It has been suggested by a number of writers and by some courts also that the meaning to be given to the official languages sections of the Charter  including s. 19(2)  will be heavily influenced by the view that is taken of s. 16 . I think this is probably correct and it might be useful therefore to see what the differing views of s. 16  are.

 

133.            According to André Tremblay ("The Language Rights (Ss. 16  to 23 )", in Tarnopolsky and Beaudoin (eds.), The Canadian Charter of Rights and Freedoms : Commentary (1982), 443), s. 16  of the Charter  was inspired by s. 2 of the Official Languages Act, R.S.C. 1970, c. O‑2, and despite minor differences in wording should be given the same effect. He expresses the view at p. 447 that:

 

... s. 16(1)  raises the wording of s. 2  of the Official Languages Act  to the rank of a constitutional norm of the first order.

 

Section 2  of the Official Languages Act  reads:

 


                   2.  The English and French languages are the official languages of Canada for all purposes of the Parliament and Government of Canada, and possess and enjoy equality of status and equal rights and privileges as to their use in all the institutions of the Parliament and Government of Canada.


                   2.  L’anglais et le français sont les langues officielles du Canada pour tout ce qui relève du Parlement et du gouvernement du Canada; elles ont un statut, des droits et des privilèges égaux quant à leur emploi dans toutes les institutions du Parlement et du gouvernement du Canada.


 

 

 

134.            Professor Tremblay discusses two possible approaches to s. 16  at p. 450:

 

There are two hypotheses. The declaration [in s. 16(1) ] can be considered as purely platonic or abstract, like a preamble which sets forth a goal or a general rule whose scope would be determined by ss. 17  to 22 . The aim of the declaration would not be to establish complete or absolute bilingualism, but only the level or forms of bilingualism specified in the subsequent sections. According to the second hypothesis, s. 16(1)  would be seen as containing the fundamental and autonomous principle of language policy at the federal level, or what can be called the cornerstone or pivot of all language provisions at the federal level. Section 16(1)  would have the effect of restricting the powers of the federal government, which would have the constitutional obligation to ensure equality of status and the equal rights and privileges of French and English. It would also have the effect of leading to extensive judicial control of the constitutionality of federal laws and rules which would be contrary to the principle of equality. This interpretation is feasible and we understand how the Supreme Court could arrive at it. It has already been adopted for s. 2 of the federal Official Languages Act  by Chief Justice Deschênes in the Joyal v. Air Canada [[1976] C.S. 1211 at pp. 1215‑16] case:

 

                  

 

                   [TRANSLATION]  Section 2 of chapter O‑2 actually goes further than section 1 of Bill 22, and the explanation for this is undoubtedly that there is a radical difference between the situations each act is aimed at resolving. Parliament could not stop at a statement of principle concerning the official status of English and French in Canada; the tangible results had to be foreseen immediately and this status had to be at once firmly rooted in the Canadian reality. From this follows the concrete conclusions of the principle: "they (the two official languages) possess and enjoy equality of status and equal rights and privileges as to their use in all institutions of the Parliament and government of Canada".

 

                   This provision for equality in chapter O‑2, which is absent from Bill 22 in accordance with the basic postulate of the Bill, established the principle of official languages in our country and gives it a basis in fact.

 

                   Section 2 of chapter O‑2 therefore contains much more than the simple ethereal principle to which the defence would like to restrict it.

 

                   It is also significant that in using in the Thorson case (Thorson v. A.G. of Canada [1975] 1 S.C.R. 138, 151) the same language as was used by Air Canada, the Supreme Court of Canada reached, in 1974, the exact opposite conclusion than the one Air Canada submitted to the Court in support of this particular aspect of its brief:

 

                   It (the Official Languages Act ) is both declaratory and directory in respect of the use of English by and federal authorities and agencies...etc.

 

Professor Tremblay comments at p. 451:

 

                   This point of view, eminently respectable and, moreover, held by a very distinguished jurist, could be adopted by a Supreme Court which tended to be liberal and reformist concerning language matters. But history tells us that our courts have not been very active in this area. The Chief Justice's remarks were made concerning an ordinary Act of Parliament and they were not enthusiastically adhered to in subsequent decisions.

 

135.            Professor Tremblay agrees with Deschênes C.J.S.C.Q. that s. 16  is more than just an abstract statement of principle; it is a provision, he says, on the basis of which a declaration of invalidity could be obtained under s. 52  of the Constitution Act, 1982 . He expresses the view also that employees of the federal government or persons employed in federal institutions whose rights under the section were infringed could obtain relief under s. 24  of the Charter . However, he seems to share Chief Justice Deschênes' concern that the courts will dismiss s. 16  as purely directory and introductory and treat the "new constitutional standard" which it sets "as a platonic assertion of good intention without sanction" (p. 457). Chief Justice Deschênes was in fact reversed on appeal, [1982] C.A. 39, 134 D.L.R. (3d) 410. Monet J.A., with whom Nolan J.A. concurred, rejected the notion that s. 2  was self‑executing and held that implementation of bilingualism required executive action. Barbes J. (ad hoc), in dissent, agreed with the broad view of s. 2  espoused by the Chief Justice.

 

136.            Professor Magnet in "The Charter 's Official Languages Provisions: The Implications of Entrenched Bilingualism" (1982), 4 Supreme Court L.R. 163, expresses his view of the proper approach to s. 16 . He says at p. 172:

 

                   Section 16  of the Canadian Charter of Rights and Freedoms  declares that "English and French are the official languages of Canada." Although the section goes on to provide for "equality of status and equal rights and privileges as to their use" in all federal institutions, the declaration of official status stands by itself. It is my thesis that section 16  is like a twin‑headed hydra. The declaratory clause entrenches a complex precept of duality as a basic interpretational tenet of the constitution. The following clause guarantees the right of government employees to use either French or English as the language of work in the federal public service.

 

                   Section 16  is the same text, with insignificant modifications, as the provision that currently exists as section 2  of the Official Languages Act . All courts that have considered section 2  are agreed that, at a minimum, the provision declares Canada's fundamental commitment to linguistic duality. Section 2 , said Mr. Justice Marceau, "is a `declaration of status', which could not be formulated in stronger terms". The Quebec Court of Appeal underlined that the declaratory clause contained [TRANSLATION]  "the spirit of the Act and the intention of Parliament". Its legislative intent is specific. It defines "the irrevocable goal ... to introduce complete bilingualism in practice" and "imposes ... the duty to take steps to reach the (bilingualism) goal". Taken at its lowest common denominator, section 2  is an interpretive provision radiating a legislative purpose that impacts on the Act in which it is set.

 

137.            The reference to Marceau J. is a reference to his reasons for judgment in Association des Gens de l'Air du Québec Inc. v. Lang, [1977] 2 F.C. 22. In that case the Association sought the invalidation of an Order of the Minister of Transport made under the authority of s. 6  of the Aeronautics Act  restricting the use of French on the ground that the Order contravened the Official Languages Act . The Federal Court of Canada rejected the claim. Marceau J. saw in s. 2  of the Official Languages Act  not just a platonic principle but the "cornerstone" of the law. However, in his view the section could not be isolated from the other sections of the Act; it constituted a "declaration of status" but the declaration was purely introductory. He says at pp. 34‑35:

 

                   However, on the practical level of the legal rights and duties flowing from it, I do not see how section 2  can be isolated from the whole of the Act. In my opinion, it is a "declaration of status", which could not be formulated in stronger terms, but which remains introductory. Parliament sets out the conclusions to be drawn from it in the following sections where, in section 9 et seq. in particular, it defines the "duties" which it imposes on departments and agencies of the Government of Canada, to give effect to its "declaration of status".

 

Marceau J. then cites s. 9 of the Act which deals with, among other things, the obligation imposed on departments and agencies of the Government of Canada to ensure "to the extent that it is feasible for it to do so, that members of the public in locations other than those referred to in that subsection, where there is a significant demand therefor by such persons, can obtain available services from and can communicate with it in both official languages".

 

He then continues at p. 35:

 

                   "To the extent that it is feasible for it to do so": in my opinion, these are the basic terms to be considered. Parliament did not claim to introduce complete bilingualism in practice immediately, because obviously the facts in the context of which it was legislating did not permit it to do so. The status has been declared and the irrevocable goal defined, the duty to take steps to reach the goal is imposed, but the speed of progress toward the goal is measured in terms of feasibility.

 

138.            The views of Marceau J. and Deschênes C.J.S.C.Q. present a striking contrast. While Chief Justice Deschênes saw s. 2  as not merely declaratory but also "self‑executing", calling for immediate implementation to root it firmly in the Canadian reality, Marceau J. saw it merely as a declaration of status that was purely introductory, contemplating a much more gradual progression towards the ultimate goal of bilingualism.

 

139.            The Federal Court of Appeal, [1978] 2 F.C. 371, upheld Mr. Justice Marceau. Le Dain J. (with whom Hyde D.J. concurred) found a clear conflict between the Order of the Minister and the Official Languages Act  "in so far as ... the Order denies the legal right to use French in [a] branch of the federal government". He found that the Minister's Order was within the authority conferred by the Aeronautics Act , a federal enactment, and therefore stood on an equal footing with s. 2  of the Official Languages Act . That being so, it took merely an exercise in statutory interpretation in order to resolve the conflict between the two. Le Dain J. could nowhere find a legislative intent to subordinate regulatory power in the interests of air safety to the provisions of the Official Languages Act . The Order therefore survived judicial scrutiny. Le Dain J. expressed his view as to the effect of s. 2  at pp. 379‑80:

 

                   As I read section 2  it is more than a mere statement of principle or the expression of a general objective or ideal. That it is in relation to the Official Languages Act  as a whole‑‑the expression of the essential spirit of the Act to which reference is made in other provisions‑‑but it is also the affirmation of the official status of the two languages and the legal right to use French, as well as English, in the institutions of the federal government. Other sections of the Act, such as sections 9 and 10 , are concerned with what must be done by way of implementation to make this an effective right and a practical reality. What is chiefly involved is the provision of sufficient bilingual personnel in the public service to ensure that, in the words of section 9, "members of the public can obtain available services from and can communicate with it in both official languages". There are other provisions in the Act which impose specific duties on institutions of the Government of Canada to give effect to the official status of the two languages but section 2  would appear to be the only provision from which one may derive a right to use French, as well as English, as a language of work as well as a language of service in the federal government. As such, it is in my respectful opinion more than a merely introductory provision, but rather the legal foundation of the right to use French, as well as English, in the public service of Canada, whether as a member of the service or a member of the public who has dealings with it. Of course, the practical implementation required to make that an effective right is another thing.

 

140.            In my view, the difficulty in characterizing s. 16  of the Charter  stems in large part from the problems of construction inherent in s. 16(1) . I would read the opening statement "English and French are the official languages of Canada" as declaratory and the balance of the section as identifying the main consequence in the federal context of the official status which has been declared, namely that the two languages have equality of status and have the same rights and privileges as to their use in all institutions of the Parliament and government of Canada. Subsection (3)  of s. 16  makes it clear, however, that these consequences represent the goal rather than the present reality; they are something that has to be "advanced" by Parliament and the legislatures. This would seem to be in the spirit of Jones v. Attorney General of New Brunswick, [1975] 2 S.C.R. 182, namely that legislatures cannot derogate from already declared rights but they may add to them. Provided their legislation "advances" the cause of equality of status of the two official languages it will survive judicial scrutiny; otherwise not. I do not believe, however, that any falling short of the goal at any given point of time necessarily gives a right to relief. I agree with those who see a principle of growth or development in s. 16 , a progression towards an ultimate goal. Accordingly the question, in my view, will always be‑‑where are we currently on the road to bilingualism and is the impugned conduct in keeping with that stage of development? If it is, then even if it does not represent full equality of status and equal rights of usage, it will not be contrary to the spirit of s. 16 .

 

141.            One of the difficulties in interpreting s. 16  in the way I have suggested lies in s. 20(1) which confers a right to communicate in English or French with and receive available services from "any head or central office of an institution of the Parliament or government of Canada" but imports a limit on such right in dealing with "any other office of any such institution". The narrowness of s. 20(1), although it may very well be appropriate in terms of present resources and capabilities, seems to directly contradict the spirit of s. 16(1) . Any steps towards full accommodation of language rights endorsed by the courts under the growth principle in s. 16(1)  would have to be consistent with s. 20(1), a provision which can only be changed by constitutional amendment requiring the consent of all the provinces. It is perhaps possible, however, to find latitude for growth by combining the message of s. 16(3)  with the use in s. 20(1) of "significant demand for services and communications" and "reasonableness due to the nature of the office" as the determining factor in whether an individual has full rights under s. 20(1). If I am correct in my characterization of s. 16(1)  as constitutionalizing a societal commitment to growth, then presumably our understanding of what is significant and what is reasonable under present conditions will evolve at a pace commensurate with social change. Under the aegis of s. 16(3)  Parliament and the legislatures may legislate as to what is a "significant demand" and what is "reasonable" in a manner that reflects heightened social expectations. Accordingly, it is only judicial development of the right in s. 20(1) that is hampered by the section's limited scope.

 

142.            I am inclined to accept this as a workable interpretation of the interplay between the provisions in the official languages part of the Charter  and as a way around the difficulty posed by s. 20(1) . I find it unlikely that the finite language employed in s. 20(1)  was meant to inhibit the interpretive impact of s. 16(1)  on the rest of the language provisions and to negate the principle of growth which has traditionally been associated with the interpretation of constitutional provisions. Such a finding would render s. 16(1)  redundant or at best a formal embellishment and would run counter to the approach of this Court which has been to give full and purposive meaning to every word of the Charter .

 

(b) Sections 27  and 14 

 

143.            In addition to considering s. 16  of the Charter  in relation to the interpretation to be given to s. 19(2)  consideration also has to be given to ss. 27  and 14 :

 


                   27.  This Charter  shall be interpreted in a manner consistent with the preservation and enhancement of the multicultural heritage of Canadians.


                   27.  Toute interprétation de la présente charte doit concorder avec l’objectif de promouvoir lemaintien et la valorisation du patrimoine multiculturel des Canadiens.


 

 


                   14. A party or witness in any proceedings who does not understand or speak the language in which the proceedings are conducted or who is deaf has the right to the assistance of an interpreter.


                   14. La partie ou le témoin qui ne peuvent suivre les procédures, soit parce qu'ils ne comprennent pas ou ne parlent pas la langue employée, soit parce qu'ils sont atteints de surdité, ont droit à l'assistance d'un interprète.


 

 

 

144.            It has been suggested that there may be some conflict between s. 27  and s. 16(3) , particularly the French text of s. 16(3) , if the phrase "favoriser la progression", in contradistinction to the word "advance" in the English text, is construed as involving an element of preferment to English and French over other languages: see Alain Gautron, "French/English Discrepancies in the Canadian Charter of Rights and Freedoms " (1982), 12 Man. L.J. 220. While I appreciate the point that is being made, I do not believe that s. 27  was intended to deter the movement towards the equality of status of English and French until such time as a similar status could be attained for all the other languages spoken in Canada. This would derogate from the special status conferred on English and French in s. 16 .

 

145.            As far as s. 14  is concerned it might be argued that it supports the view that translation or interpretation would be adequate under s. 19 . But this is far from clear. The right to an interpreter has usually been identified with the right to be present at a trial. For example, in Attorney General of Ontario v. Reale, [1975] 2 S.C.R. 624, this Court held that an accused, though physically present at his trial, was not present within the meaning of s. 577(1)  of the Criminal Code  because he was unable to understand the language in which the proceedings were being conducted. It seems to me that the right to the assistance of an interpreter would extend to all cases where the right to be heard was either expressly or impliedly provided for by law and also to all cases where the rules of natural justice required that a hearing take place. Indeed, this seems to be the effect of the existing Canadian jurisprudence. For example, in Unterreiner v. The Queen (1980), 51 C.C.C. (2d) 373, it was held that the absence of a competent interpreter amounted to a denial of natural justice serious enough to order a re‑trial. These cases certainly indicate that the ability to understand and be understood is a minimal requirement of due process. They do not, however, assist in answering the question whether the assistance of an interpreter satisfies the requirements of s. 19(2) . Indeed, it may be significant that s. 14  is not included in the sections dealing with Canada's official languages.

 

146.            It is interesting to note that in the Final Report to the Council of the Barristers' Society of New Brunswick, Committee on Integration of the Two Official Languages in the Practice of Law, September 1981, strong views were expressed on the subject of interpreters and translation. The Report was particularly critical of the use of simultaneous translation. Quoting from p. 64:

 

                   The discussion focussed primarily on the problems resulting from the use of translation. The majority of lawyers felt that simultaneous translation would not work in a trial in New Brunswick. In their opinion there was no properly qualified interpreter in the province who possesses the necessary competence to do simultaneous translation in a trial because of the high standards required for this form of translation. They mentioned as examples, the difficulties resulting from fast exchanges between two and maybe more persons in a trial, and the highly technical and legal language unique to each trial. Experience shows that the interpreter has some difficulty in following the proceedings often rendering an incomplete translation which is unacceptable in "a profession of words". Only if properly qualified interpreters such as in the Federal Court of Canada were available, should this method be preferred.

 

The view was expressed in the Report, however, that simultaneous translation in its present state might be adequate in situations where there was very little cross‑examination such as in the Court of Appeal and in some tribunals. The Committee also pointed out the limitations of consecutive translation where the testimony of witnesses is completely modified through the use of an interpreter and becomes for all practical purposes the testimony of the interpreter. The Report indicated that the lawyers thought the use of an interpreter reduced the effectiveness of trial techniques. However, the Committee concluded "In spite of these problems, consecutive translation is preferred to simultaneous translation at the present time because the system offers the possibility of correcting the interpreter if he does not give the right interpretation" (p. 64).

 

147.            If the views expressed in the Report are sound they would certainly seem to suggest that simultaneous translation and perhaps consecutive translation also would place a litigant at a disadvantage at least in trial proceedings and would therefore fall under the ban of s. 13(1) of the Official Languages of New Brunswick Act.

 

(c)               Section 133 of the Constitution Act, 1867

 

148.            The striking similarity in language between ss. 17 , 18  and 19  of the Charter  and s. 133  of the Constitution Act, 1867  would appear to support the view expressed by Professor Tremblay that one of the characteristics of the Charter  is constitutional continuity (p. 445). The jurisprudence developed under s. 133  would therefore apply to these sections including Jones v. Attorney General of New Brunswick, supra; Attorney General of Quebec v. Blaikie, [1979] 2 S.C.R. 1016 (Blaikie No. 1); Attorney General of Quebec v. Blaikie, [1981] 1 S.C.R. 312 (Blaikie No. 2), and the recent decision of this Court in Reference re Manitoba Language Rights, [1985] 1 S.C.R. 721. The crucial difference, he points out, is that by virtue of the amending provisions in the Charter  linguistic rights are "doubly entrenched", first by s. 33  which precludes "opting out" of these provisions and secondly by s. 41  which requires the unanimous consent of all the provinces to change them (pp. 445‑46). The salient, and for purposes of these reasons most useful, feature of the jurisprudence under s. 133  is its expansive and purposive approach to the scope of linguistic rights at least at the level of this Court.

 

149.            The Jones case dealt with inter alia the constitutional validity of the Official Languages Act, R.S.C. 1970, c. O‑2 in relation to s. 133 of the British North America Act, 1867. It was argued that s. 133 articulates the maximum as well as minimum protection to be given to the use of the French and English languages. Laskin C.J. responded as follows at p. 192:

 

I do not accept that submission which, in my opinion,is unsupportable under the language of s. 133 , unsupportable as a matter of such history thereof as is available, and unsupportable under the scheme of distribution of legislative power as established by the British North America Act and as construed by the Courts over a long period of time.

 

And later at p. 195:

 

Section 91(1) aside, there are no express limitations on federal legislative authority to add to the range of privileged or obligatory use of English and French in institutions or activities that are subject to federal legislative control. Necessary implication of a limitation is likewise absent because there would be nothing inconsistent or incompatible with s. 133  , as it relates to the Parliament of Canada and to federal Courts, if the position of the two languages was enhanced beyond their privileged and obligatory use under s. 133 . It is one thing for Parliament to lessen the protection given by s. 133 ; that would require a constitutional amendment. It is a different thing to extend that protection beyond its present limits.

 

150.            In the two Blaikies the Court, reflecting the spirit of Jones that s. 133  did not establish a ceiling of linguistic rights protection but rather a base that could be built upon, found that the section contained an organic principle of growth capable of responding to changing social realities. In Blaikie No. 1 by giving "full weight ... to every word of s. 133 " (p. 1022) the Court found that the requirement to enact legislation in both official languages was implicit in the section. Similarly, the Court found that the phrase "‘Courts of Quebec’ ought to be considered broadly" (p. 1028) to include other adjudicative agencies and that ‘Acts...of Quebec’ ought to include delegated legislation in order not to "truncate the requirement of s. 133 " (p. 1027). In both instances the Court demonstrated a willingness to enlarge the scope of the literal words so as to tailor the protection to the exigencies of contemporary structures of law‑making and adjudication. The spirit of this approach is continued in Blaikie No. 2 where the Court, taking account of "the phenomenal growth of delegated legislation since 1867" held that s. 133  applied to regulations made by certain boards and subordinate law‑making agencies. It is in its treatment of Court rules of practice, however, that its expansive approach to the section is most visible. The Court found that the rules of practice were subject to s. 133  "by necessary intendment" not so much because of their legislative nature but because of their judicial character. The Court stated at p. 332:

 

                   All litigants have the fundamental right to choose either French or English and would be deprived of this freedom of choice should such rules and compulsory forms be couched in one language only.

 

The Court was clearly unsympathetic to any interpretation which would run counter to the litigant's right to have his or her case conducted in the language of his or her choice.

 

151.            Finally, in Reference re Manitoba Language Rights, supra, the Court rejected the submission that the first part of s. 133  should be construed as merely "directory" in order to uphold the validity of legislation which did not comply with the section. In exploring the doctrinal underpinnings of the distinction between mandatory and directory legislation, the Court found that it was premised on the desire to avoid serious inconvenience. The Court stated at p. 742:

 

                   More important than the lack of authority to support the application of the mandatory/directory distinction to constitutional provisions, however, is the harm that would be done to the supremacy of Canada's Constitution if such a vague and expedient principle were used to interpret it. It would do great violence to our Constitution to hold that a provision on its face mandatory, should be labelled directory on the ground that to hold otherwise would lead to inconvenience or even chaos.

 

This spirit of vigilance in safeguarding a meaningful exercise of linguistic rights should also, in my view, inform our approach to ss. 16  and 19  of the Charter .

 

9. The factual context

 

152.            Having canvassed briefly the statutory context of s. 19(2)  I turn now to the factual context in which it must be applied. The appellant's complaint is that its linguistic rights under the section were violated by Stratton J.A.'s sitting as a member of the Court of Appeal when his level of understanding of the French language was inadequate. It did not, in the appellant's submission, solve this problem that his two colleagues were bilingual: the appellant was entitled to a panel composed of three judges all of whom understood the French language. The appellant takes no position as to whether, had simultaneous translation been provided, this would have been adequate. Nor does it have to since no translation was in fact provided in the Court of Appeal.

 

153.            The appellant seems to rely for its statement that Stratton J.A.'s level of understanding of the French language was inadequate upon the fact that when it initially requested a bilingual judge to hear its application for leave to appeal and for an extension of time to appeal on the basis that some submissions might be made in English and others in French, Stratton J.A. acceded to the request and referred the applications to Angers J.A. This, the appellant submits, was a clear acknowledgment by Stratton J.A. that his level of understanding of French was inadequate. How could he then feel qualified to sit on the case? With respect, I cannot accept this submission. If counsel, expressing lack of confidence in the language competence of a judge, requests that he or she not sit, I feel fairly sure that that judge would consider seriously whether or not there was a basis for counsel's concern. If the judge concluded that there was some basis for it, he or she might decide not to sit even although personally of the view that counsel's concern was greatly exaggerated. A good parallel is conflict of interests. No judge will sit if counsel alleges that he or she has a conflict of interests and there is some basis for the allegation. Even if the judge is satisfied in his or her own mind that he or she can be completely impartial, it is probably wise for that judge not to sit on the basis that justice must not only be done, it must be seen to be done. I would not, therefore, conclude from Stratton J.A.'s accession to counsel's request that he refer the applications to a bilingual judge that he necessarily agreed with the appellant that his level of understanding of the French language was inadequate.

 

154.            The point made by counsel does, however, raise very important questions as to the level of understanding of a language required of a judge sitting on a case and who is to determine whether or not a particular judge has attained that level. If we are merely talking due process, then the answer to the first question seems relatively simple: the judge must have sufficient understanding of the language to provide a fair hearing. If we are talking equality of linguistic rights in the court structure, this may fall far short of what is required.

 

155.            On the question of how the judge's level of competence is to be determined, it seems to me that in the absence of any system of testing in both languages applicable uniformally to all judges sitting in New Brunswick courts (and federal courts also under s. 19(1)), a judge must assess in good faith and in as objective a manner as possible his or her own level of understanding of the language of the proceedings. If the judge is in doubt as to whether or not he or she attains the requisite level, presumably he or she does not sit. If counsel expresses doubt, as already mentioned, he or she may or may not sit.

 

156.            I think we may safely infer from his conduct that Stratton J.A. considered that he had an adequate understanding of the French language to sit on the case. I think we may also infer that his two colleagues who sat with him thought so also. To infer otherwise is to suggest that all three decided to have a member of the court sit who was not capable of understanding the language in which the proceedings were being conducted. It is also, I believe, extremely significant that counsel did not raise the issue of Stratton J.A.'s competence to sit on the panel of three despite the fact that he had acceded to their request for a bilingual judge initially. It may be a reasonable inference that they considered him perfectly capable of sitting as one of three. Stratton J.A. certainly appears to have considered himself sufficiently proficient in the language to sit on a panel of three whether or not he considered himself sufficiently proficient to sit as a single judge. However, as already mentioned, I do not draw from his accession to counsel's request the inference that he considered himself not sufficiently proficient to sit as a single judge; I conclude rather that he responded with sensitivity to the doubts expressed by counsel, doubts not repeated before the panel of three.

 

157.            During the course of the hearing of the appeal to this Court, counsel were asked for their submissions as to whether the requirements of s. 19(2)  of the Charter  could be met by the provision of simultaneous translation. Counsel indicated that they did not wish to make submissions on this subject or to have it decided by the Court on this appeal. They pointed out that, since no translation was available in the New Brunswick Court of Appeal, the issue is simply not raised in this case. In accordance with counsels' wishes I express no view on the matter.

 

158.            Professor Leslie Katz, in an article entitled "Are There Constitutionally Guaranteed Language Rights in Criminal Code  Proceedings?" (1973), 11 Osgoode Hall L.J. 545, discusses the question whether the right of the litigant to address the courts orally in English or French includes the right to a judge who understands the language spoken. He concludes that "the provisions [of s. 133] must implicitly require courts capable of understanding both English and French". Professor Katz relies on Miller v. The Queen, [1970] S.C.R. 214, as authority for this proposition but I am not sure that the case supports him. In that case counsel for the two accused at their trial for attempted murder sought to use the French language in the examination of French speaking witnesses. The trial judge refused the request on the ground that both accused were English speaking, the jury was made up entirely of English speaking jurors and counsel for the accused, although French speaking, was perfectly familiar with the English language. The conviction was upheld by the Court of Appeal and leave to appeal to this Court was denied. In brief reasons Fauteux J., as he then was, held that in view of s. 133 of the British North America Act, 1867, the trial judge's refusal to accede to counsel's request was an error of law (as, indeed, was acknowledged by accused's counsel) but no substantial wrong or miscarriage of justice resulted from it. It seems to me that while Miller stands for the proposition that counsel are entitled to speak French in the courts and it is error of law to deny them that right, it says nothing about the need for understanding by the judge.

 

159.            Nor was the issue directly addressed in an earlier decision of this Court, Veuillette v. The King (1919), 58 S.C.R. 414. In that case the appellant who was being tried for murder indicated that he wanted his trial in French and the trial judge directed the impanelling of a mixed jury. Each of the six French speaking jurors stated to the court at the time of their selection that they understood and spoke both English and French. The trial proceedings were carried on in English. The main issue before the Supreme Court of Canada was the effect of the trial judge's failure to sum up the case to the jury in French. Four of the five judges who sat on the case held that the appellant was entitled to have the case conducted in both English and French. However, the Court held that no substantial wrong or miscarriage of justice resulted from its being conducted wholly in English. The basis of their conclusion was that only an ordinary conversational skill in the use of English was required in the case and the accused himself gave his evidence wholly in English. However, in the course of his reasons Anglin J. stated at p. 419:

 

                   I am inclined to agree with the learned Chief Justice of Quebec that

 

after the election of the accused for a mixed jury, and after the impanelling of such a mixed jury, the case should have been conducted in both languages.

 

That, in my opinion, was a right of the accused implied by the statute. If not, its object would be purely sentimental and no right real and substantial in character would be conferred by it.

 

160.            Brodeur J. dissented on the "no substantial wrong" aspect. He would have set aside the conviction and ordered a new trial. Commenting on the relevant provision of 27‑28 Vict., c. 41, s. 7 , Brodeur J. said at p. 423:

 

                   [TRANSLATION]  As indicated by the very wording of the statute, the right of an English‑ or French‑speaker to be tried in the province by at least six of his fellow citizens who speak his mother tongue is an absolute one. The judge does not even have the discretion to decide whether to grant the accused's request for a mixed jury. It is an absolute and indefeasible right; and once he has expressed this wish, the judge must note it and ensure that the jury is mixed.

 

And later he said at pp. 424‑25:

 

                   [TRANSLATION]  Now, how far does the right conferred on accused persons go?

 

                   It has been suggested that this right applied only to jury selections and did not impose on the Court a duty to ensure that all the proceedings are conducted in both languages so they can be understood by all members of the jury.

 

                   In my view, the right would be wholly illusory if, for example, despite the fact that an English‑speaker was entitled to select a mixed jury it was open to the prosecution to call witnesses who spoke French and not have their testimony translated into English, so that its content would be understood by English‑speaking members of the jury. This would be a serious denial of justice.

 

                   The same would be true of the judge's charge to the jury. He must make certain that what he says is understood by all its members.

 

                   It is true that the statute is silent on the way in which a case should be conducted before a mixed jury. However, there could be no better interpretation of it than the practice, consistently followed for over a hundred and fifty years in cases where there is a mixed jury, of translating the depositions of the witnesses into both languages and making the judge's charge in, or translating it into, English and French..

 

161.            Mignault J. (one of the majority) expressed a similar view at p. 430:

 

                   [TRANSLATION]  Returning now to 27‑28 Vict. c. 41, it is clear that the provision in question is illusory if, in a case before a mixed jury, the testimony is not translated from French into English and vice versa, and if at least the gist of the charge by the presiding judge is not made in both languages. That has always been the practice in the province of Quebec, and learned counsel for the respondent in this Court, Mr. Gaboury, in answer to a question I put to him, admitted that the practice has also been followed in the Pontiac district. I consider, therefore, that a prisoner who requests a mixed jury is entitled to have the case heard in both languages, and this certainly includes the judge's charge to the jury.

 

162.            The issue of a litigant's right to have his case heard by a judge who understands the language in which the litigant has chosen to have the proceedings conducted has been raised directly in a number of lower courts. In Rural Municipality of De Salaberry v. Robidoux, Man. Prov. Ct., June 8, 1981 (unreported), the defendants, who live in the predominantly French‑speaking community of St‑Pierre Jolys southeast of Winnipeg, were charged with the violation of a zoning by‑law by piling debris from a demolished church on their property. They were liable to a fine of up to $1,000 if convicted. They asked for a trial in French pursuant to s. 23 of the Manitoba Act, 1870. Provincial Court Judge Minuk, who does not speak French, ruled that s. 23  did not entitle the defendants to have a French speaking judge; an interpreter was adequate. While the defendants had the right to choose French the judge and others in the courtroom had the right to choose English.

 

163.            In R. v. Mercure, [1981] 4 W.W.R. 435, the Saskatchewan Provincial Court, interpreting s. 110 of the North‑West Territories Act, agreed that a French‑speaking judge was not required, that the provision of an interpreter was adequate. Provincial Court Judge Deshaye referred to the "authoritative void" in the jurisprudence as to what exactly the litigant's right to use his own language in the courts entailed.

 

164.            On appeal to the Saskatchewan Court of Appeal, [1986] 2 W.W.R. 1, Bayda C.J. considered whether s. 110 conferred a right on the litigant to use either English or French in the courts of Saskatchewan or merely a power. The distinction was important in his view because, while rights involve correlative duties, powers do not. They involve only liabilities in the sense that persons may be vulnerable to the exercise of the power by the holder of it. The Chief Justice found that it was not necessary in this case to decide whether s. 110 conferred a right or a power although he seems to express a preference for a power. On the assumption, however, that the section confers a right on the litigant the Chief Justice finds some ambiguity as to the precise nature of the right. He says it may be (at p. 20):

 

1) the right to use either the English or the French language in contradistinction to any other language (e.g. German, Ukrainian, Cree, Chinese, etc.); or 2) the right to use English in contradistinction to French coupled with the equal right to use French in contradistinction to English.

 

(Emphasis added.)

 

The Chief Justice concluded that if the first interpretation is correct the State has no duty to provide judicial services in the language chosen by the litigant; it can proceed in either English or French. If, on the other hand, the second interpretation is correct, then the State must provide judicial services in the language chosen by the litigant. If other participants in the proceedings choose the other language, then the Chief Justice says it will only be a partial solution to provide a bilingual judge and bilingual court personnel. Simultaneous translation may have to be provided in both languages for the entire proceedings. Again the Chief Justice finds it unnecessary for purposes of the case to decide which interpretation is the correct one but he expresses a preference for the first interpretation. He concludes that if s. 110 confers a mere power or, in the alternative, if it confers the first kind of right, then the litigant has no right either way to have his trial conducted wholly in French before a French‑speaking judge.

 

165.            Hall J.A. agrees that s. 110 does not require the provision of a French‑speaking judge. He does not, however, consider the provision of an interpreter adequate but expresses the view that "having regard to the current state of technology" simultaneous translation into both languages will suffice. Tallis J.A. does not find it necessary to deal with the question whether other participants in the proceedings can use either English or French when the litigant has chosen one of those languages. Cameron J.A. is of the view that the primary concern is that the litigant understand and be understood and that this can be achieved through accurate and effective translation.

 

166.            Leave to appeal the decision of the Saskatchewan Court of Appeal to this Court was granted by this Court on January 27, 1986.

 

167.            In R. v. Tremblay (1985), 20 C.C.C. (3d) 454, Halvorson J. of the Court of Queen's Bench of Saskatchewan agrees that s. 110 of the North‑West Territories Act gives an accused the right to use either English or French but says this does not entitle him to demand a trial entirely in French including a French‑speaking judge and prosecutor. He says at p. 461:

 

                   The accused's right, as I see it, is to have his case presented in French. The Crown is likewise entitled to present its case in English. Of necessity, translations will be required. I have no doubt that at the accused's hearing a bilingual judge will be provided by the Chief Justice, and there is no reason why bilingual court staff cannot be made available.

 

168.            In Paquette v. R. in Right of Canada, [1985] 6 W.W.R. 594, Sinclair J. of the Court of Queen's Bench of Alberta held that the accused's right under s. 110 of the North‑West Territories Act to use either English or French at his trial entitled him to a judge who was able to comprehend the French and English languages in both their spoken and written form. It also required the court to make available the services of an interpreter so that other participants in the process such as witnesses and jury members would fully understand the proceedings. Quoting from the reasons of Sinclair J. at p. 629:

 

                   In my opinion, if the section is to have meaning the Provincial Judge who will hold the preliminary hearing and the Court of Queen's Bench judge assigned to conduct the trial must be able to comprehend the French language as it is spoken and written. Otherwise, I believe the applicant's right to use the French language in the proceedings will be less than is intended by s. 110. It seems to me that if one person speaks a language to another who is unable to directly understand what is being said, the language is not being used for its fundamental purpose of effective communication.

 

169.            The appellant relies on a recent decision in the Manitoba Courts, Robin v. Collège de Saint‑Boniface (1984), 28 Man. R. (2d) 301, in which the right of an English speaking judge to preside at a trial intended to be conducted wholly in French was challenged. Hewak J. was assigned by Wilson J. to the trial upon the untimely death of the originally scheduled judge, Deniset J. Hewak J. indicated that he wanted two interpreters to be present at the trial "should he require them". Counsel for the plaintiff concluded from this that he did not fully understand French and that if he sat on the trial the plaintiff would be deprived of his constitutional right under s. 23 of the Manitoba Act, 1870 to use French in court. He moved for a declaration that Hewak J.'s sitting on the case would constitute a violation of s. 23 . The following constitutional question was stated:

 

Was there non‑compliance on the part of the Honourable Mr. Justice Wilson with section 23 of the Manitoba Act of 1870 which gives to the plaintiff and to the defendant the right to a trial in French with a judge who is entirely conversant with the language in which the trial is to be held?

 

170.            Hewak J., in dismissing the motion, said at p. 304:

 

                   I believe that one of the purposes of s. 23  was and is to accord French and English‑speaking persons the right to a full and fair trial by providing them with the right to choose the language they wish to use in court. All that litigants are entitled to, and all that judges can provide, is that the trial be properly and adequately conducted in either French or English. A judge assigned to the case is expected to provide such a full and fair hearing as he would be in any case involving litigants speaking a language other than his mother tongue. He cannot and should not be expected to function according to some undefined French language competency standard, otherwise, who is to decide if that judge is fully competent to hear the case in the French language.

 

                                                                    ...

 

                   If the assigned judge feels, in a fair and conscientious way, that he is able to understand the evidence in French and then to give a sensible judgment, then that is all you should expect from him. If he feels on the other hand that he needs the assistance of a translator to accomplish that, then so be it. It does not mean that because he needs a translator, that the language rights of the litigants under s. 23  are being violated or that a fair and impartial trial cannot be provided or a sensible conclusion arrived at.

 

171.            The Manitoba Court of Appeal on appeal from Hewak J. (1984), 30 Man. R. (2d) 50, seems to agree that it is the responsibility of the judge to determine his competence in each case. O'Sullivan J.A., writing for the majority, states at p. 56:

 

                   In my opinion, it is essential that a judge who hears a case where French is used must be able to understand the French evidence. To give a fair hearing in accordance with the constitutional rights of a Francophone he must put himself into a position of being able to understand what is said in French. But he need not himself speak French and he need not understand French unaided by a translator. If a judge can understand what is said in French with the help of a translator, I see no reason to think he cannot fairly hear witnesses who speak French.

 

172.            Monnin C.J.M., dissenting with respect to the acceptability of translation, was also of the view that the decision as to his or her competence should rest with the judge. He states at p. 65:

 

... the judge alone is capable of declaring that he is linguistically competent. He must do so in fairness to all the parties and keeping in mind the duty of the courts to dispense justice in either English or French.

 

Monnin C.J.M. expresses the view that there are four phases to the comprehension of a language:

 

1)                understanding of the written language;

 

2)                understanding of the spoken language;

 

3)                the ability to express oneself orally in the language; and

 

4)                the ability to write in the language.

 

He finds that it is not necessary for judges to qualify in the third or fourth phases although it is obviously desirable. It is, however, in his view, essential that they qualify in the first two phases. Translation is not good enough. The Chief Justice says at p. 63:

 

No burden must be put upon those who ask for a trial in French nor should the evidence of witnesses using one or the other of the two constitutionally recognized languages have to be sifted for the trier of facts through the mind and mouth of an interpreter. Any witness who delivers his testimony in either one of these two languages must be understood by the trier of facts in the language which he uses in the courtroom.

 

The Chief Justice indicates, however, that simultaneous translation may be adequate at the appellate level. The appellant appears to agree that the determination as to a judge's level of understanding of a language must be left to the judge but expressly dissociates itself from the views of the Manitoba courts on the adequacy of translation.

 

173.            An application for leave to appeal the decision of the Manitoba Court of Appeal to this Court was heard by this Court on March 3, 1986. Judgment on the application is under reserve*.

 

*The application for leave to appeal was dismissed May 22, 1986.

 

10. Conclusions

 

174.            As mentioned at the outset, many questions are subsumed in the constitutional question framed for the Court. On the most simplistic level it may be answered by a simple yes. On the broader question of how the litigant's right under s. 19(2)  of the Charter  may be given practical effect, some aspects of this question are left at counsels' request to another day. However, it seems to me that the appeal cannot be disposed of without answering at least two questions, namely:

 

(a)               what level of language comprehension must a judge sitting on an appellate process have? and

 

(b)               how is the question whether he or she has that level of comprehension to be determined?

 

(a) The Level of Comprehension

 

175.            In order to answer the first question it is, I believe, necessary to revert to a question already touched upon, namely whether s. 19(2)  affords the litigant something more than the fair hearing rights accorded by ss. 7  and 14 . I think that it does.

 

176.            Section 19(2)  is in the part of the Charter  entitled "Official Languages of Canada" which I have quoted in its entirety at pp. 611‑12 of these reasons. Sections 7  and 14 , on the other hand, are in the part entitled "Legal Rights" and, as I discussed earlier, the s. 14  right to an interpreter flows from the overall right to be present at one's own trial. According to Brodeur J. in Veuillette, supra, the same concern for natural justice requires that the evidence and the judge's address to the jury be translated where the right to a mixed jury has been exercized by the accused. It seems unlikely therefore that ss. 19(1)  and 19(2)  were intended to do no more than duplicate the pre‑ and post‑Charter  entitlement to rudimentary fairness.

 

177.            The legislative context of s. 19  also, in my view, requires account to be taken of Canada's fundamental commitment to the "equality of status" of the French and English languages as set out in s. 16 . At the very least this opening section would appear to provide an interpretative framework for the language provisions which follow. Accordingly, even if we assume that due process considerations in a language context lie at the heart of s. 19 , the constitutional minimum required by the section must in some way reflect s. 16 's commitment to the equal status of the two official languages.

 

178.            Going beyond the legislative text it seems to me that the existing jurisprudence on linguistic rights supports the view that the protection afforded by s. 19(2)  was responsive to a broader concern than that underlying s. 14 . It grew out of our peculiar Canadian heritage and the evolution of our social and political history. Thus in Jones, supra, Laskin C.J. was critical of the appellant's contention that s. 133  exhausts the scope of permitted legislative protection for the use of French and English. Commencing with the Act of Union in 1840 he established that such a contention was simply not supported by our history. Similarly, in Blaikie No. 2 the Court reverted to the customs and conventions of 1774 in order to clarify the impact of s. 133  on Court rules of practice. The message that emerges from the case law on s. 133 , it seems to me, is that linguistic rights are a response to the peculiar facts of Canada's history. There is a sociocultural content to those rights which gives them a dimension beyond that of mere due process. The words of this Court in Reference re Manitoba Language Rights, supra, come to mind (at p. 744):

 

The importance of language rights is grounded in the essential role that language plays in human existence, development and dignity. It is through language that we are able to form concepts; to structure and order the world around us. Language bridges the gap between isolation and community, allowing humans to delineate the rights and duties they hold in respect of one another, and thus to live in society.

 

History, no doubt, will continue to add a dimension to the social and legal content of these rights. Indeed, the double entrenchment of language rights in the Charter  and the commitment to linguistic duality in s. 16  would seem to support the view expressed by Professor Tremblay that in terms of importance linguistic rights now stand "at the highest level of the constitutional hierarchy": see André Tremblay, loc. cit., at pp. 445‑46.

 

179.            The difficulty lies in giving a precise formulation of what this qualitative difference means in terms of the court process above and beyond the fair hearing concern which the jurisprudence would seem to indicate can be satisfied by translation. Indeed, it is because of this difficulty that I am limiting my discussion to the requirements at the appellate level, leaving the more problematic issue of the requirements at the trial level to another day.

 

180.            It seems to me that given the commitment to linguistic duality contained in s. 16  of the Charter  and the principle of growth implied by that commitment, the Court's process cannot be perceived as static. What may be adequate to‑day in terms of protection for the litigant's right under s. 19(2)  may not be adequate tomorrow. The last few decades have witnessed a concentrated and broadly based effort to give practical effect to language rights. The passage of Official Languages Acts has heightened the sensitivity of public officials and raised the expectations of the Canadian public with regard to the provision of government services in both official languages in the federal and in certain provincial jurisdictions. As Monnin C.J.M. pointed out in his dissent in Collège de Saint‑Boniface, the federal government has taken concrete steps towards the creation of a bilingual judiciary both through its judicial appointments and its provision of training in the French language for those who are unilingual. We are looking at a process which will call for a progressively expansive interpretation of the litigant's right under s. 19(2)  to meet gradually increasing social expectations. Clearly the courts cannot define in futuro what is going to be required from time to time to satisfy the litigant's language right but they can determine ex post facto whether or not it was satisfied in a particular case and this is what the Court must decide here. It must decide what, as a practical matter, the state was called upon to do at this point in time in order to accommodate the appellant's language right under s. 19(2)  of the Charter .

 

181.            The obvious intention of the framers of the Charter  to constitutionalize linguistic duality in New Brunswick is evident in ss. 16(2) , 18(2)  and 20(2)  as well as s. 19(2) . Section 20(2) , when compared with s. 20(1) , may be seen as indicating greater expectations for achieving the goal of bilingualism in the public service of New Brunswick than has been achieved in the federal public service generally. In addition, some of the materials submitted by counsel indicate that some of the expectations in New Brunswick with regard to the exercise of language rights in the court structure are not currently being met. The report to the New Brunswick Barristers Society discloses this as does also the report prepared for the New Brunswick government in 1982, Towards Equality of the Official Languages in New Brunswick. These documents provide vital demographic data, a description of current facilities and a useful insight into local attitudes towards the present level of implementation of language rights in the Province. Although both reports recommend that the Court of Appeal include among its members at least three bilingual judges, their main criticism is directed to the trial process and the inadequacy of translation as an aid to comprehension in that context. Neither report explains what is envisioned by the use of the term "bilingual". Towards Equality of the Official Languages in New Brunswick uses the term "genuinely bilingual" at p. 324 to describe the only valid alternative to translation at trial but goes on to suggest that a two‑year training program should be sufficient to bring a judge's abilities up to the requisite level. Later at p. 325 the report seems to take the same position as Monnin C.J.M. that direct comprehension by court personnel is an acceptable minimum at trial. Neither report discusses in any depth the manner in which an appellate bench which is not fully bilingual "truncates" (Blaikie No. 1) a litigant's linguistic right or "places" a litigant "at a disadvantage" (s. 13(1) of the Official Languages of New Brunswick Act).

 

182.            The affidavits of Léon Richard and D. Leslie Smith both deal with Stratton J.A.'s facility in the French language but only by way of asserting either the insufficiency or the sufficiency of his comprehension. Richard, for the appellant Society, recounts counsel's distress because Stratton J.A. was unable to understand the written material submitted to him. Presumably, because official translators for written documents are provided under the New Brunswick scheme (see: Official Languages (Documents) Regulation, (N.B.) Reg. 76‑47), what is challenged here is Stratton J.A.'s assessment of his need or rather lack of need for translation. Richard also maintains that Stratton J.A. could neither communicate orally in French with French speaking counsel nor follow the course of oral argument in French. D. Leslie Smith, for the respondent Association, asserts that Stratton J.A. gave no indication that he was unable to deal with written submissions in French and maintains that his comments on argument presented orally in French demonstrated that he had followed and understood that argument.

 

183.            These two affidavits serve to clarify the area of controversy in this case. They also illustrate the usefulness of Monnin C.J.M.'s analysis in Robin v. Collège de Saint‑Boniface, supra, of linguistic ability into four phases which, if nothing else, provides an intelligible means of describing an appropriate level of proficiency. Monnin C.J.M. suggests that judges currently should be required to understand the written and spoken language but not necessarily to speak or write it. Léon Richard, by attesting to Stratton J.A.'s inability to communicate, seems to be of the opinion that a judge must have attained at least three of Monnin C.J.M.'s levels of proficiency while Smith, in line with Monnin C.J.M.'s view, implies that proficiency at the first two levels is sufficient.

 

184.            It seems to me that the question of whether Stratton J.A. could follow and comprehend French argument to the level required by s. 19(2)  again goes to the issue of the manner of assessing the judge's language competence. As stated earlier, I think it is clearly established by the pre‑eminent position of language rights in the Charter  and their sociocultural content that, at the very least, the standard against which the judge's level of comprehension should be measured goes beyond that required by fairness. However, as pointed out by the Royal Commission on Bilingualism and Biculturalism (Report of the Royal Commission on Bilingualism and Biculturalism, Book I, The Official Languages, at pp. 6‑8) individual bilingualism is a relative and not an absolute concept. The Commission states at pp. 6‑7:

 

                   8. One of the greatest obstacles to understanding the nature of bilingualism‑‑and probably to accepting it‑‑is the still commonly‑held notion that, to be bilingual, a person must have an equal command of two languages. In fact, this phenomenon is so distinct as to have a special name, "equilingualism".

 

                   9. Insistence on an equal command of two languages as the criterion of bilingualism has long retarded research in this field. In recent years, however, the concept of bilingualism has become broader. It is now no longer identified with equilingualism, which some consider to be theoretically and practically impossible; for they believe that a bilingual's language learning experience would have to be identical in both languages in order to produce identical results.

 

185.            The Commission then goes on to differentiate "receptive bilinguals" i.e. those who can receive communications in both languages through the written and spoken word but can express themselves in only one language; those who can function in both languages but have a lower level of proficiency in one or in both from unilingual persons; and those who are bilingual only in the particular area of their life's experience. All may be described as bilingual in some contexts and for some purposes.

 

186.            Accepting that the concept of bilingualism is relative and not absolute and that it must be related to function and purpose, I would conclude that the judge's level of comprehension must go beyond a mere literal understanding of the language used by counsel. It must be such that the full flavour of the argument can be appreciated. To the extent that this requires what Monnin C.J.M. describes as a comprehension of the nuances of the spoken word, I would agree with him that a judge must attain that level of sophistication in order to make the litigant's linguistic right meaningful in the context of the court's process. I do not think, however, that the content of s. 19(2)  can be expanded beyond this at the present time. Furthermore, I believe that in the absence of evidence to the contrary, we must assume that Stratton J.A. applied this standard to himself and concluded that he met it. However, as mentioned earlier, because the content of the litigant's right is not static, the standard to be met by the judiciary must be subject to continuous scrutiny.

 

187.            While there was little discussion in this case of the acceptability of either simultaneous translation or the practice mentioned in Towards Equality of the Official Languages in New Brunswick at p. 320 of taking a bilingual judge from the trial division to sit ad hoc on the appellate bench, it would seem to me that such mechanisms might, from the purely language point of view, provide a more satisfactory interim measure than reliance on a judge who cannot fully participate in the proceedings. However, there may be other disadvantages to the use of trial judges sitting ad hoc on appeal. Counsel and the public may be concerned over the fact that appellate adjudication is significantly different from trial adjudication. They may also be under the misguided impression that trial judges will inevitably be disposed to favour the views of their colleagues in the courts below.

 

188.            Simultaneous translation, which if conscientiously used allows some sort of interchange between the bench and counsel, may be a preferable solution to the need for a fully responsive bench. A judge in Stratton J.A.'s position could perhaps solve some of the problems arising from his or her inability to converse in the language by inviting counsel to use the translation service to receive questions in English to which he might respond in French. Ultimately, however, any such measures can only be viewed as inadequate substitutes for true equality. It is evident that linguistic duality has a crucial role to play in social and cultural development in New Brunswick and that heightened public expectations with regard to that role are reflected in the Charter  as well as in provincial legislative attempts to expand and protect the exercise of language rights. Against this backdrop, the inequality of status of a litigant who must present his or her case to a bench that is not fully able to respond must eventually give way to the escalating standard in s. 16(1)  and (2) .

 

189.            The appellant argued additionally that s. 13(1) of the Official Languages of New Brunswick Act supports their claim that French speaking litigants in New Brunswick have the right to be heard in the language of their choice and not to be disadvantaged by that choice. Again the same comments apply. Even if one assumes that "heard" and "disadvantage" in this context envision more than the requirements of fairness, I do not think that an examination of the statute as a whole supports the formulation of a standard higher than that found in s. 19(2)  of the Charter . I have set out here for convenience the relevant provisions of the New Brunswick statute:

 


                   2 Subject to this Act, the English and French languages


                   2 Sous toutes réserves prévues par la présente loi, l’anglais et le français


 

 


(a) are the official languages of New Brunswick for all purposes to which the authority of the Legislature of New Brunswick extends, and


a) sont les langues officielles du Nouveau-Brunswick pour toutes les fins relevant de la compétence de la Législature du Nouveau-Brunswick, et


 

 


(b) possess and enjoy equality of status and equal rights and privileges as to their use for such purposes.


b) bénéficient d’un statut équivalent de droit et de privilège, lorsqu’ils sont employés aux fins visées à l’alinéa a).


 

 


                   13 (1) Subject to section 15 , in any proceeding before a court, any person appearing or giving evidence may be heard in the official language of his choice and such choice is not to place that person at any disadvantage.


                   13 (1) Sous réserve de l'article 15 , dans toute procédure devant un tribunal, toute personne qui comparaît ou témoigne peut être entendue dans la langue officielle de son choix et ne doit être, en fait, nullement défavorisée en raison de ce choix.


 

 


                   13(1.1) Subject to subsection (1), a person accused of an offence under an Act, or a regulation of the Province, or a municipal by-law, has the right to have the proceedings conducted in the official language of his choice, and he shall be advised of the right by the presiding judge before his plea is taken.


                   13 (1.1) Sous réserve du paragraphe (1), une personne accusée d’une infraction à une loi ou à un règlement de la province, ou à un arrêté municipal, a droit au déroulement des procédures dans la langue officielle de son choix, et elle doit être informée de ce droit par le juge qui préside au procès avant d’enregistrer son plaidoyer.


 

 


15(1) Where

 

(a) warranted by reason of a number of persons involved,


15 (1) Le lieutenant-gouverneur en conseil peut,

 

a) si le nombre de personnes en cause le justifie,


 

 


(b) the spirit of this Act so requires, or


b) si l’esprit de la présente loi l’exige, ou


 

 


(c) it is deemed necessary to so provide for the orderly implementation of this Act.


c) s’il est jugé nécessaire de le faire pour assurer la bonne application de la présente loi,


 

 


the Lieutenant-Governor in Council may make regulations determining the application of sections 8, 9 and 10 .


édicter des règlements précisant l’application des articles 8, 9 et 10 .


 

 


15(2) The Lieutenant-Governor in Council may make regulations governing the procedure in proceedings before any court, including regulations respecting the giving of notice as he deems necessary to enable the court to exercise or carry out any power or duty conferred or imposed upon it by section 13.


15  (2) Le lieutenant-gouverneur en conseil peut établir des règlements régissant les procédures engagées devant tout tribunal, y compris les règlements relatifs aux notifications qu’il estime nécessaires pour permettre au tribunal d’exercer toute fonction ou pouvoir qui lui est conféré ou imposé par l’article 13.


 

 



 

190.            The declaration of status in s. 2  is in a sense less restrictive than that found in the Charter  in that it seems referable to any and all constitutionally valid purposes rather than to usage within certain institutions. However, the specificity of the subsequent provisions and the fact that they appear in a statutory rather than constitutional document belies the notion that s. 2  is meant to have immediate effect. Of particular note is the qualification based on numbers and the requirement of orderly implementation of the Act contained in s. 15(1) . This seems to parallel the qualification imposed in s. 20  of the Charter . The same qualification applied to the right contained in s. 13(1) but was removed by an amendment to the statute in 1975. In 1982 s. 13(1.1) was added to give an accused person the right to have the proceedings conducted in the official language of his or her choice. Section 13(1) read in this context clearly gives a lesser right than s. 13(1.1) and thus falls short of the s. 2  ideal. It does, however, contain the prohibition against disadvantage relied on by the appellant.

 

191.            The disadvantage spoken of here, like the right itself, must reflect the declaration in s. 2 . Accordingly, it may be said to be self‑evident that a litigant who appears before a bench, one of whose members is unable to pursue a point raised in argument, is in a disadvantaged or unequal position vis‑à‑vis other litigants who can communicate directly with the entire bench. Perhaps it is this discrepancy in status which underlies Léon Richard's conviction that a judge must be proficient at three of Monnin C.J.M.'s levels of language ability. It seems to me, however, that in order to take advantage of the protection afforded by s. 13(1) the appellant must not only assert the disadvantage, it must establish it. No evidence was adduced to demonstrate that the appellant was disadvantaged in this case. Furthermore, the provision would seem to invite some evidence as to the alternatives which were available, such as simultaneous translation or the substitution of a bilingual trial judge, which could have been resorted to in order to mitigate the alleged disadvantage. In summary, I am unable to find in the present case that the appellant has been denied a "hearing" or has established that it suffered a "disadvantage" under s. 13(1) of the Official Languages of New Brunswick Act.

 

(b) Assessment of Comprehension

 

192.            I expressed the view earlier in these reasons that, in the absence of a system of testing, a judge must be the arbiter of his or her own level of comprehension and must determine that level in as an objective a manner and with as much good faith as possible. Such a determination can of course be challenged but, as already mentioned, only on the basis of proof. It follows also from what I have said about Canada's commitment to the principle of linguistic duality that the judge in making his or her assessment from time to time must apply an escalating standard commensurate with the evolution of social expectations. Only in this way can meaningful effect be given to the principle of growth contained in s. 16 . At a certain point, for example, the steps taken to upgrade the bilingual capabilities of the federal judiciary will lead the public to expect access to a bilingually competent court. Those expectations would then be not only legitimate but also the subject of constitutional protection under ss. 16  and 19 .

 

11. Disposition of the Appeal

 

193.            I would dismiss the appeal with costs. I would answer the constitutional question as follows:

 

Question:  Does s. 19(2)  of the Canadian Charter of  Rights and Freedoms  entitle a party pleading in a court of New Brunswick to be heard by a court, the member or members of which are capable of understanding the proceedings, the evidence and the arguments, written and oral, regardless of the official language used by the parties?

 

Answer:    Yes.

 

                   Appeal dismissed with costs.

 

                   Solicitors for the appellants: Charest, Bourque & Cyr, Edmundston.

 

                   Solicitors for the respondent: Duffie, Friel & Godbout, Grand Falls.

 

                   Solicitor for the intervener the Attorney General of Canada: Roger Tassé, Ottawa.

 

                   Solicitor for the intervener the Attorney General for New Brunswick: Gordon F. Gregory, Fredericton.

 

 

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