Canadian Refugee Procedure/Language of Proceedings

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Charter of Rights and Freedoms[edit]

Sections 16 to 22 of the Canadian Charter of Rights and Freedoms concern language rights, the most probative provisions being:[1]

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.
...

Proceedings in courts established by Parliament	
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.

Communications by public with federal institutions
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.

The Board is considered to be a "court established by Parliament" for the purposes of Charter language rights[edit]

Section 19 of the Charter provides that "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." Is this right applicable to proceedings before the IRB? It is. The expression “courts” includes quasi-judicial organizations. The test to be applied in determining whether a quasi-judicial body is to be considered a "court" for such purposes is stated as follows: it includes any federal institution whose organizing statute confers the power to decide matters affecting the rights or interests of the individual, by applying principles of law and not considerations of convenience or administrative policy.[2] The position that the government has taken before is that s. 19 of the Charter is applicable to proceedings before the Board: Taire v. Canada.[3]

Rule 17 - Language of proceedings for a claim for refugee protection[edit]

The text of the relevant rule reads:

Language of Proceedings

Choice of language — claim for refugee protection
17 (1) A claimant must choose English or French as the language of the proceedings at the time of the referral of their claim for refugee protection to the Division.

Changing language
(2) A claimant may change the language of the proceedings that they chose under subrule (1) by notifying the Division and the Minister in writing. The notice must be received by the Division and the Minister no later than 10 days before the date fixed for the next proceeding.

Rule 18 - Language of proceedings for an application to vacate or cease refugee protection[edit]

Choice of language — application to vacate or cease refugee protection
18 (1) The language that is chosen under rule 17 is to be the language of the proceedings in any application made by the Minister to vacate or to cease refugee protection with respect to that claim.

Changing language
(2) A protected person may change the language of the proceedings by notifying the Division and the Minister in writing. The notice must be received by the Division and the Minister no later than 10 days before the date fixed for the next proceeding.

Commentary[edit]

Policy Statement on Official Languages and the Principle of the Substantive Equality of English and French[edit]

The IRB has a Policy Statement on Official Languages and the Principle of the Substantive Equality of English and French which provides that "Recognizing that provisions establishing language rights must generally be given a broad and liberal interpretation, the IRB will ensure respect for English and French as the official languages of Canada and ensure equality of status and equal rights and privileges as to their use in the administration of justice, in communicating with or providing services to the public and in carrying out the Board’s work."[4]

Board has the operational capacity to entertain requests to change the language of proceedings across the country[edit]

A question can arise about how often a participant begins proceedings in one official language and then wishes to change to proceed in the other official language. In 2009 the Board received 125 such requests. In 2010, they received 164 such requests to change language after a proceeding had commenced.[5]

The Board has capacity across the country to offer proceedings in either official language. An illustration of the linguistic capabilities of Members was offered in testimony before the House of Commons in 2010:

As of December 14, two days ago, the linguistic breakdown of our decision-makers was the following. In the eastern region, we have 54 members, of whom 44 are bilingual, seven are unilingual French, and three are unilingual English. In the central region, we have 111 members, of whom nine are bilingual and 102 are unilingual English. In the western region, we have 38 members, of whom six are bilingual and 32 are unilingual English.[6]

A claimant may impliedly waive their right to proceed in their language of choice[edit]

In Brahim v. Canada, the claimants allowed their counsel to deliver part of his oral arguments in English, given that counsel for the applicants’ notes were in English and he wished to communicate them in that language. On judicial review, the claimants argued that given that they had elected to proceed in French, their counsel's English-language submissions denied them this right. What had occurred during the hearing was that was the applicants’ counsel himself who switched to English of his own volition, preferring to speak English during oral argument because that was the language in which his notes had been written:

Perhaps I’ll move straight into the… just a few references in the documentation which is, my notes, in English.[7]

The court rejected this argument as follows:

As for the matter of the language at the hearing, the Court is of the view that, based on a detailed transcript of the hearing before the RPD, the applicants were not denied a hearing in French; rather, they themselves waived their right to an interpreter when they allowed their counsel to deliver part of his oral arguments in English, given that counsel for the applicants’ notes were in English and he wished to communicate them in that language. The RPD was under no obligation to ask the applicants whether they wanted an interpreter at the time or to get them to specifically waive their right to an interpreter. This Court has clearly ruled that a party can implicitly waive the language rights granted to it under the Official Languages Act.[8]

Rule regarding language of documents[edit]

See also Rule 32 regarding the language that parties must supply documents in, including the language that the Minister is to use where a claimant has elected for a particular official language: Canadian Refugee Procedure/Documents#Rule 32 - Language of documents

References[edit]

  1. The Constitution Act, 1982, Schedule B to the Canada Act 1982 (UK), 1982, c 11, s 16 <http://canlii.ca/t/ldsx#sec16> retrieved on 2020-01-25
  2. Blaikie v. Quebec (Attorney General), [1979] 2 S.C.R. 1016, at pages 1017-18 and Société des Acadiens v. Association of Parents for Fairness in Education, [1986] 1 S.C.R. 549) at paragraph 53.
  3. Taire v. Canada (Minister of Citizenship and Immigration), 2003 FC 877 (CanLII), paras. 51 and 55, <http://canlii.ca/t/1g6pm#51>, retrieved on 2020-01-25
  4. Immigration and Refugee Board of Canada, Policy Statement on Official Languages and the Principle of the Substantive Equality of English and French, Date modified: 2018-07-03 <https://irb-cisr.gc.ca/en/legal-policy/policies/Pages/pnnpollo.aspx> (Accessed January 22, 2020).
  5. Comments of Executive Director, Office of the Executive Director, Immigration and Refugee Board of Canada, House of Commons Hansard <https://openparliament.ca/committees/official-languages/40-3/39/simon-coakeley-31/> and <https://openparliament.ca/committees/official-languages/40-3/39/simon-coakeley-37/>.
  6. Testimony of Simon Coakeley Executive Director, Office of the Executive Director, Immigration and Refugee Board of Canada, Official Languages Committee on Dec. 16th, 2010, House of Commons Hansard <https://openparliament.ca/committees/official-languages/40-3/39/simon-coakeley-1/>.
  7. Brahim v. Canada (Citizenship and Immigration), 2014 FC 734 (CanLII), par. 10, <http://canlii.ca/t/g8tvj#10>, retrieved on 2020-01-25.
  8. Brahim v. Canada (Citizenship and Immigration), 2014 FC 735 (CanLII), par. 9, <http://canlii.ca/t/gjhl5#9>, retrieved on 2020-01-25.