On May 17, 2024, the Honourable Dennis Galiatsatos, a judge of the Court of Quebec (provincial court), issued a decision on the constitutional applicability and validity, in criminal matters, of section 10 of Quebec's Charter of the French Language (Charter), which requires a French version to be attached "immediately and without delay" to any final judgment issued in English. Since its adoption in 1977, the Charter has been the central legislative piece in Quebec's language policy, governing the use of the French language in a broad range of activities. In this case, while Justice Galiatsatos' judgment was rendered in a criminal matter, it raises the question of the Charter's constitutional validity and applicability in a broader context.
Procedural Background
In R. v. Pryde (Pryde), the accused elected to have her trial in English pursuant to section 530 of the Criminal Code (Code). The trial on the merits began on June 3, 2024 — two days after section 10 of the Charter came into force. This new provision is part of a series of amendments made to the Charter when the Quebec National Assembly adopted the Act respecting French, the official and common language of Québec (Bill 96), in the spring of 2022. Section 10 of the Charter now provides that a French version is to be attached "immediately and without delay" to any judgment rendered in writing in English by a court of justice where the judgment terminates a proceeding or is of public interest.
Rather unusually, Justice Galiatsatos himself raised the issue of the constitutional validity and applicability of section 10 of the Charter in criminal matters and also rendered his May 17, 2024 judgment a few weeks before the provision came into force, even though the accused had not raised it herself and despite vigorous opposition from the Attorney General of Quebec (AGQ) and the Attorney General of Canada.
On May 7, 2024, the AGQ applied for judicial review before the Superior Court of Quebec (Superior Court), alleging, among other things, that the circumstances did not allow Justice Galiatsatos to rule on this issue and that he had shown bias. The AGQ asked the Superior Court to issue a stay of proceedings in the Court of Quebec until judgment was rendered on this application for judicial review.
On May 17, 2024, the Honourable Marc St-Pierre, a judge of the Superior Court, denied the AGQ's application for a stay of proceedings on the grounds that there was no irreparable harm in the circumstances since a judgment of the Court of Quebec would not change the state of the law.
On the same day, Justice Galiatsatos rendered his judgment, which included a lengthy and detailed analysis of the constitutional applicability and validity of section 10 of the Charter to judgments rendered in criminal matters.
Irreconcilable Charter and Code Provisions
In his decision, Justice Galiatsatos observed that section 10 of the Charter requires that the French and English versions of a judgment be filed simultaneously. He concluded that the required translation and quality-control revision process would necessarily result in the delayed delivery of final judgments drafted in English, creating an asymmetry between the delays faced by anglophone and francophone defendants. This asymmetry would create a conflict between, on the one hand, section 10 of the Charter and, on the other, the operation of criminal procedure and a defendant's language rights pursuant to Part XVII (section 530 and following) of the Code.
Justice Galiatsatos went on to apply the doctrine of federal paramountcy, which is employed when a conflict arises between two valid and applicable statutes, one federal and the other provincial. Pursuant to this doctrine, a provincial statute is rendered inoperative to the extent that it is incompatible with federal legislation. Over time, the doctrine's interpretation has evolved to apply only to cases of clear conflict. In this regard, the Supreme Court of Canada states that "[w]hen a federal statute can be properly interpreted so as not to interfere with a provincial statute, such an interpretation is to be applied in preference to another applicable construction which would bring about a conflict between the two statutes."
Applying this doctrine, Justice Galiatsatos concluded that there was an operational conflict between the Code and section 10 of the Charter, as the latter creates additional delays by preventing judges from filing judgments drafted in English as soon as they are ready. Justice Galiatsatos also concluded that there was another conflict between these provisions, as section 10 of the Charter frustrates the purpose of sections 530-530.1 of the Code, which is to ensure that both anglophone and francophone defendants are afforded the same rights. However, according to him, anglophone defendants will now have to wait longer than francophone defendants for the delivery of a judgment. He declared the obligation to translate into French "immediately and without delay" judgments rendered in English inoperable in criminal proceedings, although the obligation to translate such judgments into French remains valid and applicable.
The AGQ has announced its intention to appeal the judgment.
French Translation of Pleadings
Bill 96 has been the subject of other court challenges. In August 2022, the Superior Court of Québec suspended the coming into force of two sections of Bill 96, pursuant to which any English-language pleading emanating from a legal person needs to be filed along with a French version certified by a certified translator. The case is ongoing, pending a determination on the merits.
A stay was more recently granted regarding the application of certain provisions of Bill 96 that would, among other things, require English-language school boards in Quebec to use French exclusively in their written communications, contracts and agreements with certain organizations and businesses of the English-speaking community.
Conclusion
The Charter provisions relating to the administration of justice in French are currently being challenged in court. At issue in Pryde was the right of an accused to stand trial in the official language of their choice, as recognized by the Code. In this matter, the trial judge determined that the obligation imposed by section 10 of the Charter to attach a French version "immediately and without delay" to a final judgment rendered in English was incompatible with the language rights conferred on the accused by Part XVII of the Code. It will be interesting to see how appellate courts address this issue and whether the obligation imposed by section 10 of the Charter will be challenged in other contexts, such as in civil or administrative matters.
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