Contraventions Act Fund, Summative Evaluation

2. Description of the Contraventions Act Fund (cont'd)

2. Description of the Contraventions Act Fund (cont'd)

2.1.  Policy and legislative context ( cont'd )

2.1.2. Relevant language rights

In 2001, the Federal Court was asked to clarify the extent of language rights applicable to federal contraventions.[14] This case related specifically to the province of Ontario, the first to implement the Contraventions Act. At the time of this evaluation, this ruling was the only one dealing specifically with this issue and, as such, it serves as the foundation for the analysis contained in this subsection.

The federal government may use provincial prosecution schemes to prosecute federal contraventions, but in doing so, it must ensure that all judicial activities and extra-judicial services relating to federal contraventions are provided in accordance with the language rights of Canadians contained in the Canadian Charter of Rights and Freedoms, the Criminal Code and the Official Languages (see Figure 2). This sub-section further explores the extent of language rights applicable to federal contravention.

Language rights applicable to contraventions, as identified in the 2001 Federal Court ruling

Language rights applicable to contraventions, as identified in the 2001 Federal Court ruling

[Description]

Figure 2

Jurisdictional issues

In Canada, the power to make laws on the use of official languages is not specifically assigned to one or the other level of governments. Instead, it is an ancillary power that must be linked to specific areas of jurisdiction of the federal or provincial governments.[15]

In the specific case of contraventions, the federal government has exclusive jurisdiction with respect to their prosecutions.[16] As a result, the federal government has complete authority to structure the prosecution of contraventions. It may prosecute contraventions directly or it may delegate this role to provincial or municipal governments (as reflected in section 65.2 of the Contraventions Act).[17]

In making decisions on the prosecution of contraventions, the federal government must comply with its constitutional and legislative obligations, including those relating to languages. In this sense, the federal government's jurisdiction over the prosecution of contraventions may be exclusive, but it is not absolute. Two sets of language rights apply to federal contraventions: those relating to judicial aspects of contraventions (activities occurring in court, during judicial processes) and those relating to extra-judicial aspects of contraventions (activities occurring out of court, including services at the registry counter).

Judicial activities

Since the federal government has exclusive jurisdiction on the prosecution of federal contraventions, it must ensure that any structure put in place to prosecute and process contraventions complies with language rights that apply to the federal government. For criminal offences, Parliament opted for the adoption of an extensive language rights scheme found in sections 530 and 530.1 of the Criminal Code. In a landmark decision (R. v. Beaulac), the Supreme Court of Canada stated that the purpose of these sections of the Criminal Code is “to provide equal access to the courts to accused persons speaking one of the official languages of Canada in order to assist official language minorities in preserving their cultural identity.”[18] Courts called upon to deal with criminal matters are therefore required to be institutionally bilingual in order to provide for the equal use of the two official languages of Canada. The Supreme Court of Canada also emphasized that:

“(…) mere administrative inconvenience is not a relevant factor. The availability of court stenographers and court reporters, the workload of bilingual prosecutors or judges, the additional financial costs of rescheduling are not to be considered because the existence of language rights requires that the government comply with the provisions of the Act by maintaining a proper institutional infrastructure and providing services in both official languages on an equal basis. As mentioned earlier, in the context of institutional bilingualism, an application for service in the language of the official minority language group must not be treated as though there was one primary official language and a duty to accommodate with regard to the use of the other official language. The governing principle is that of the equality of both official languages.”[19]

The original prosecution scheme included in the Contraventions Act specifically incorporates sections 530, 530.1 and 531 of the Criminal Code, allowing a person alleged to have committed a contravention access to all language rights attributed to individuals alleged to have committed a criminal offence.[20] These sections have essentially become the threshold against which the application of a provincial scheme for prosecuting federal contraventions is to be assessed. In practical terms, this means that the federal government may use a provincial scheme for the prosecution of federal contraventions, but this scheme must, at the trial level, provide the same guarantees relating to official languages as those established in the Criminal Code.[21]

Extra-judicial services

Section 20 of the Canadian Charter of Rights and Freedoms confers to Canadians the right to be served by federal institutions in both official languages once certain conditions have been met.

“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

  1. there is a significant demand for communications with and services from that office in such language; or
  2. 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 federal government has implemented these rights through the Official Languages Act, particularly through Part IV dealing with “communication with and services to the public.” Section 25 of the Official Languages Act specifies that any third party providing services on behalf of a federal institution must respect all obligations that would otherwise be applicable to that institution.

These parameters directly apply to federal contraventions. The federal government must either directly provide services in both official languages as prescribed in Part IV of the Official Languages Act (in the event that it would process federal contraventions itself), or ensure that any provincial institution processing federal contraventions on its behalf provide such bilingual services. In its ruling, the Federal Court confirmed that any provincial or municipal governments processing federal contraventions are, indeed, acting on behalf of the federal government and are, therefore, covered by Section 25 of the Official Languages Act.[22]

The Court order

After reviewing the structure in place in Ontario in 1997 for the implementation of the Contraventions Act, the Federal Court concluded that “in the measures that they have taken in enacting and applying the CA [Contraventions Act], the respondents [the federal government] violated the statutory language rights in the OLA [Official Languages Act], and the provisions of the Charter, with respect to the status and use of the two official languages in the province of Ontario.”[23]

The Court concluded that the federal government “must ensure that the quasi-constitutional language rights of all Canadian citizens are guaranteed by any measure taken to arrange for the implementation of the CA [Contraventions Act].”[24] More specifically, the Federal Court ordered the following:

Following the Federal Court ruling, the Department of Justice initiated the process of modifying its Contraventions Act agreements to include new provisions addressing language rights requirements identified in the decision. To support this process, the Department of Justice received funding to establish the Contraventions Act Fund, which is the object of this evaluation.

2.2. Program logic

The Fund supports a number of activities that are expected to contribute to the achievement of specific policy goals. This section describes the Fund's program logic. It is based on the Fund's logic model included as Figure 3 on page 18.

2.2.1. Program goals

The central goal of the Fund is to achieve an implementation of the Contraventions Act that respects all applicable language rights requirements. More specifically, the Fund pursues three objectives:

2.2.2. Program activities and outputs

Activities undertaken as part of the Fund occur at both the federal and provincial levels.

At the federal level, the Department of Justice is expected to negotiate Contraventions Act agreements that address the language rights requirements established by the Criminal Code and the Official Languages Act. The federal government must also modify, as applicable to each covered jurisdiction, the Application of Provincial Laws Regulations (SOR/96-312) to recognize language rights included in the Criminal Code.

At the provincial level, the Fund supports a range of activities deemed necessary to increase the language capacity of existing provincial offence schemes, so as to respect language rights requirements applicable to federal contraventions. The list of activities funded in each jurisdiction is expected to vary based on identified gaps and needs, but will typically include some of the following components:

2.2.3. Expected impacts

The implementation of activities, particularly at the provincial level, is expected to contribute to the achievement of a series of immediate, intermediate, and long-term outcomes:

Finally, the Contraventions Act Fund is expected to support the Department's strategic objective of making the justice system relevant, accessible, and responsive to the needs of Canadians and to provide effective stewardship of that system.

2.3. Management structure

The Contraventions Act Implementation Management Division, within the Department of Justice Canada, manages the Contraventions Act Fund. The Division leads the negotiations of Contraventions Act agreements with the provinces, territories, and municipal governments, as applicable. The Division also leads the process of establishing the proper regulatory framework to incorporate provincial and territorial prosecution schemes into the Contraventions Act.

The provincial and territorial governments (typically the Attorney General) manage the ongoing implementation of Contraventions Act Fund activities, in close collaboration with managers in court locations. The responsibilities of provincial and territorial governments include, among other things:

Provincial and territorial governments are also responsible for submitting performance reports to the Department of Justice Canada. These reports include, among other things: