According to yesterday's news (see here for an article from the National Post), the government of New Brunswick will be asking the Supreme Court of Canada to look into the status of its language laws as it appeals the decision of its appellate court upholding the decision of a provincial judge who excluded breath-sample evidence of a suspected impaired driver pursuant to s. 24(2) of the Canadian Charter of Human Rights and Freedoms because his language rights had been violated (see R. v. Losier, 2011 NBCA 102 (CanLII)). Indeed, in that case, a police officer only offered the suspected impaired driver the right to be served in French thirty minutes into his detention, which was found to be contrary to the province's language laws. A similar defence has been raised in a number of New Brunswick cases already. The province seeks a decision on whether or not a Charter remedy can be used for the breach of a provincial law, in this case, New Brunswick's Official Languages Act.
Living and working in a province in which language rights are an extremely sensitive topic, this news is particularly interesting considering the impact any Supreme Court decision could have on language rights in Canada. Should the Supreme Court accept to hear this appeal, it looks like it will ultimately be asked to weigh in on the appropriate balance between the protection of language rights and the protection of the public.
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More: in Substantive Law: Judicial Decisions | from Geneviève Lay
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It will be interesting to see the role that the unilingual English speaking judges will play in this appeal. Should they recuse themselves?
No Gary – see Arsenault-Cameron v. Prince Edward Island, [1999] 3 SCR 851
And one of the great legal researchers, Côté JA of the Alberta Court of Appeal makes the point in R. v. J.L.A., 2009 ABCA 344 with all the necessary cites:
Or am I pulling the wings off the joke?
Simon, Don't you think that this is a very different situation in that the judges in accepting their appointments to the Supreme Court have determined that they are not required to be bilingual. Having reached such a conclusion, I do not see how they can review any language issue in an unbiased fashion.
A unilingual judge who has decided to accept a federal appointment isn't deciding what the correct interpretation is of the Charter, the Constitution Act, and any other applicable statute.
Adding to the point that Côté JA made: if a judge's prior decision on a point of law (as part of a law suit) meant he or she were biased (in the sense requiring recusal) when that issue arose again, we'd soon run out of judges.
It seems to me that the downtrodden are aware that it is better to seek justice before some third party chosen by themselves and their adversaries. The established tribunals can only guarantee fairness and justice based on a very narrow standard: the financial independence of the decisions makers. And this financial guarantee seems to maintain the development of conservative jurisprudence. Conservative or very conservative decision making does not necessarily equate justice or fairness.