T-3099-80
Canadian Javelin Limited (Applicant)
v.
Restrictive Trade Practices Commission
(Respondent)
Trial Division, Mahoney J.—Ottawa, October 14
and 20, 1980.
Prerogative writs — Applications for writs of prohibition
and certiorari to quash evidence taken in French in the course
of an investigation under s. 144 of the Canada Corporations
Act — Application for writ of mandamus to order re-attend
ance of witnesses and to provide simultaneous translation of
testimony — Applicant's anglophone counsel denied simulta
neous translation by presiding officer — No request for inter
preter — Reliance by applicant on par. 2(g) of the Canadian
Bill of Rights — Application dismissed — No equation be
tween right not to be denied assistance of an interpreter and
right to be provided with simultaneous translation — Official
Languages Act, R.S.C. 1970, c. 0-2, s. 11(2) — Canadian Bill
of Rights, S.C. 1960, c. 44 /R.S.C. 1970, Appendix !!!], par.
2 (g).
APPLICATIONS.
COUNSEL:
M. L. Phelan and P. S. Bonner for applicant.
D. Scott, Q.C. and J. B. Carr-Harris for
respondent.
SOLICITORS:
Herridge, Tolmie, Ottawa, for applicant.
Scott & Aylen, Ottawa, for respondent.
The following are the reasons for judgment
rendered in English by
MAHONEY J.: The affairs and management of
the applicant, hereinafter "Canadian Javelin", are
subject of an investigation under section 114 of the
Canada Corporations Act.' Canadian Javelin has
been recognized as a "person whose conduct is
being investigated" under subsection (13) and has
been represented by its counsel, as it is expressly
entitled to be, at the interrogation of witnesses
conducted under subsection (10). Some of that
' R.S.C. 1970, c. C-32, as amended by R.S.C. 1970 (1st
Supp.), c. 10.
interrogation and the attendant argument and dia
logue in Montreal has been in French, a language
well understood by the presiding officer, the
inspector's counsel, the particular witnesses and
their counsel, but not Canadian Javelin's anglo-
phone counsel who sought, and was denied, simul
taneous translation. He did not seek, and was not
denied, an interpreter or an adjournment to
arrange one and was, in fact, permitted to be
joined by a bilingual associate counsel.
Since Montreal has not been proclaimed a fed
eral bilingual district, subsection 11(2) of the
Official Languages Act 2 is not in play. It is not,
therefore, necessary to consider whether the
respondent, hereinafter "the Commission", is
otherwise within the prescription of subsection
11(2).
Canadian Javelin relies on paragraph 2(g) of the
Canadian Bill of Rights. 3
2. Every law of Canada shall, unless it is expressly declared
by an Act of the Parliament of Canada that it shall operate
notwithstanding the Canadian Bill of Rights, be so construed
and applied as not to abrogate, abridge or infringe or to
authorize the abrogation, abridgment or infringement of any of
the rights or freedoms herein recognized and declared, and in
particular, no law of Canada shall be construed or applied so as
to
(g) deprive a person of the right to the assistance of an
interpreter in any proceedings in which he is involved or in
which he is a party or a witness, before a court, commission,
board or other tribunal, if he does not understand or speak
the language in which such proceedings are conducted.
2 R.S.C. 1970, c. O-2.
11....
(2) Every court of record established by or pursuant to an
Act of the Parliament of Canada has, in any proceedings
conducted before it within the National Capital Region or a
federal bilingual district established under this Act, the duty to
ensure that, at the request of any party to the proceedings,
facilities are made available for the simultaneous translation of
the proceedings, including the evidence given and taken, from
one official language into the other except where the court,
after receiving and considering any such request, is satisfied
that the party making it will not, if such facilities cannot
conveniently be made available, be placed at a disadvantage by
reason of their not being available or the court, after making
every reasonable effort to obtain such facilities, is unable then
to obtain them.
3 S.C. 1960, c. 44 [R.S.C. 1970, Appendix III].
While I do not think the presiding officer was
wrong to deny the application for simultaneous
translation, the authority he cited for doing so
must have antedated enactment of the Canadian
Bill of Rights.
Whatever practical considerations may dictate
to be sensible, no one is obliged to instruct counsel
able to function in both official languages even if
there is a certainty or probability that the proceed
ing for which he is instructed will be conducted,
wholly or partially, in the language in which he
cannot function. The expression of opinion
attributed by the learned Vice-Chairman to Rin-
fret C.J.C., at page 653 of the transcript, to the
effect that a lack of knowledge of French on the
part of counsel appearing before the Supreme
Court of Canada was "his tough luck", while of
undoubted validity in many senses, has, in other
senses, been rendered invalid by enactment of
paragraph 2(g) of the Canadian Bill of Rights.
The language of paragraph 2(g) is, in its ordi
nary meaning, very broad. When, as here, someone
is entitled by law to be represented by counsel at a
hearing, that counsel is "a person ... involved .. .
before a court, commission, board or other tribu
nal". The paragraph is express that "person" is not
limited to a party or witness. Excepting them, who
could be more involved than counsel, assuming the
tribunal would not deprive itself of needed assist
ance and has, therefore, no real need to be protect
ed from itself? Canadian Javelin's counsel has a
right to the assistance of an interpreter at any
interrogation conducted in a language he does not
understand. To cloak that right with substance he
also has the right to reasonable notice that the
interrogation will be conducted in that language or
to a reasonable adjournment to permit him to get
an interpreter if the notice is not forthcoming.
Notwithstanding that interpreters translate and
translators interpret and that interpretation and
translation, interpreter and translator are, in their
relevant meanings, synonymous, simultaneous
translation is but a method by which an interpreter
may function. It is not the only method nor is it
the mandatory method unless subsection 11(2) of
the Official Languages Act applies. A right not to
be denied the assistance of an interpreter and a
right to be provided with simultaneous translation
cannot be equated.
Canadian Javelin is not entitled to demand that
the Commission provide simultaneous translation.
Its application for writs of prohibition and certio-
rari quashing the evidence taken in French and for
a writ of mandamus requiring the Commission to
order re-attendance of those witnesses and to pro
vide simultaneous translation of testimony given in
French must be dismissed.
JUDGMENT
The application is dismissed with costs.
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