Language Issues in Parliamentary Committees

Students of the ancient and arcane law and custom of parliament (lex et consuetudo parliamenti) and potential witnesses in the next round of committee hearings on copyright revision may be interested in the case of Knopf v. Speaker of the House of Commons (T-770-05 in the Federal Court). The application will be heard on May 24, 2006 here in Ottawa at 90 Sparks Street at 9:30 AM in Court Room 1104.

Back in April of 2004, I appeared before the Canadian Heritage Committee, which was chaired at the time by the Honourable Sarmite Bulte, P.C., M.P. I asked to have certain documents relevant to the issue of private copying and WIPO ratification distributed to the Committee members to assist them in their deliberations. These four documents included an excerpt from Mihály Ficsor’s authoritative book, published by Oxford University Press and available only in English. The subject of WIPO ratification was one of the issues - in fact the main issue - before the committee. The Chair refused to distribute my documents to the members because the material was in English only.

I felt that an important principle was at stake, namely whether a witness before a Parliamentary Committee can submit supporting relevant documents in either official language of Canada, or whether the documents must be in both official languages. Clearly, there are often insurmountable logistic problems with the latter practice - and I frankly don’t know how one can be assured of adequate translation of material such as Ficsor’s even if unlimited budget and time were available - which will rarely if ever be the case. For these and many other reasons, I looked into the law and decided to do try to do something about it. In my view, when the Official Languages Act (“OLA”) speaks of the right of Canadians to use “either” official language when communicating with Parliament, “either” means “either”. It does not mean “both”. This is backed up by the Charter.

I felt that the Committee needed to have essential relevant information, even if available only in one official language. The Committee clearly disagreed.

I filed a complaint with the Commissioner of Official Languages, who concluded that the Committee’s practice was OK according to the OLA. So I followed the procedure in the OLA and launched an application in the Federal Court.

The hearing, as noted, will be next week. Anyone attending will get a crash course in the truly fascinating law of parliamentary privilege - which is the main basis upon which the Speaker of House of Commons is defending the actions of Heritage Committee.

HK