Language Rights Issues Returning to the Supreme Court?

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.


  1. It will be interesting to see the role that the unilingual English speaking judges will play in this appeal. Should they recuse themselves?

  2. No Gary – see Arsenault-Cameron v. Prince Edward Island, [1999] 3 SCR 851

  3. 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:

    [14] Time does not permit citing all the authorities saying that having previously expressed opinions on a relevant question of law does not disqualify a judge for bias. But it is worth citing the following cases so holding, some binding. See dicta in Arsenault-Cameron v. P.E.I. (Govt.) 1999 CanLII 641 (SCC), [1999] 3 S.C.R. 851 (one S.C.C. judge); C.N.R. v. Cdn. Human Rts. Comm. (1985) 64 N.R. 312 (F.C.A.), citing an unreported Supreme Court of Canada decision; Ellis Don v. I.B.E.W. reflex, (1993) 64 O.A.C. 321, 323-24, quoting same unreported Supreme Court of Canada decision; R. v. Toth 1991 CanLII 184 (BC CA), (1991) 63 C.C.C. (3d) 273, 276-77, 286 (B.C. C.A.), leave den. (1991) 136 N.R. 404; Samson I.B. v. R. 1997 CanLII 6390 (FC), [1998] 3 F.C. 3, 141 F.T.R. 109, affd. (1998) 227 N.R. 386 (F.C.A.); Vivace Tavern v. R. 2005 CanLII 19773 (ON SC), (2005) 77 O.R. (3d) 371 (para. 12); O’Leary J.A. in McElheran v. R., 2006 ABCA 161 (CanLII), 2006 ABCA 161, Calg. 0401-0338-AC (May 26); cf. Krop v. College of P. & S. 2002 CanLII 53258 (ON SCDC), (2002) 156 O.A.C. 77 (para. 234) (D.C.) (expert member of statutory tribunal). Similar is the American Bar Association’s Annotated Code of Judicial Conduct, Canon 3E(1) notes, p. 193.

    [15] Indeed, a judge is not disqualified even if he or she has expressed or reached previously, in the same case, an opinion on a topic which comes up again for decision again: R. v. Perciballi 2001 CanLII 13394 (ON CA), (2001) 146 O.A.C. 1, 54 O.R. (3d) 346, 355-57 (C.A.), affirmed and adopted 2002 SCC 51 (CanLII), 2002 SCC 51, [2002] 2 S.C.R. 761, 289 N.R. 376; Re C.D.I.C and Cwth. Tr. Co. (#2) 1993 CanLII 959 (BC SC), (1993) 106 D.L.R. (4th) 636, 23 C.B.R. (3d) 9, leave den. (1993) 35 B.C.A.C. 296 (one J.A.); Blueberry R. I.B. v. Dept. of Indian Aff. 1999 CanLII 7935 (FC), (1999) 171 F.T.R. 91 (para. 9); R. v. Bolt reflex, (1995) 162 A.R. 204 (C.A.); Broda v. Broda, 2001 ABCA 151 (CanLII), 2001 ABCA 151, 286 A.R. 120; Vysek v. Nova Gas Int., 2002 ABCA 112 (CanLII), 2002 ABCA 112, 303 A.R. 209 (paras. 23 ff.); Tracy v. Instaloans Finan. Solution Centres (B.C.), 2009 BCCA 110 (CanLII), 2009 BCCA 110, [2009] 4 W.W.R. 236, 246 (paras. 31-3); cf. Dykun v. Odishaw, 2001 ABCA 204 (CanLII), 2001 ABCA 204, Edm. 0003-0421-AC (July 27); cf. Schwormstede v. Schwormstede (1993) 141 A.R. 263, 264 (paras. 2, 3).

    Or am I pulling the wings off the joke?

  4. 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.

  5. 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.

  6. 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.