MONCTON, NB, Jan 13, 2014/ Troy Media/ – If you have lived in New Brunswick for the last 15 years you know who Mario Charlebois is. A businessman by trade, Charlebois has become the most visible advocate for linguistic rights in New Brunswick. His numerous lawsuits against the province and various municipalities have established much of the case law for the constitutional rights of French-speakers in the province.
Perhaps the most astonishing feature of Charlebois’ story is that he did all of this while representing himself. Despite the old adage of a self-represented person having a fool for a client, he has done well. In 2001, he succeeded in having the municipal bylaws of the city of Moncton ruled invalid due to their lack of availability in both official languages; in 2005, he lost another case based on linguistic rights and the province’s Official Language Act by a single vote in the Supreme Court. Still, his luck ran out in 2010 when a court in New Brunswick made an order qualifying Charlebois as a Frivolous and Vexatious Litigant – in other words, a person who was wasting the court’s time with repetitive and wasteful legal actions.
But this was not to be his last brush with the law. In 2013, the Town of Riverview, a suburb of Moncton, took Charlebois to court over a dispute concerning a zoning by-law. In order to be able to represent himself without having to follow the additional procedures required for someone who has been qualified as frivolous and vexatious, Charlebois applied to have this order overturned as part of the Town of Riverview’s action against him. On the morning of January 2nd of this year, the Court of Queen’s Bench in Moncton, Trial Division heard his arguments. Sadly, that day in court demonstrated some of the worst aspects of our current legal system, in which the law is used as a weapon by governmental institutions against ordinary citizens who are having their civil rights violated.
The current legal action began a few years ago, after Charlebois went to Town Hall in Riverview to discuss a problem with a zoning by-law. As Canada’s only officially bilingual province, New Brunswick has the constitutional obligation for its institutions to offer services to its citizens in the language of their choice. Upon meeting with the Town of Riverview’s lawyer, Charlebois was informed that the lawyer working for the town did not speak French, nor was he willing to make arrangements to communicate with him in French.
Mario Charlebois can speak English. But that’s not the point. The government of New Brunswick has consistently, systematically, and flagrantly violated the constitutional right of its citizens to have services in French for years. When Charlebois tried to exercise that right, the Town’s lawyer warned Charlebois that he had been ordered a frivolous and vexatious litigant – in other words, ‘You can’t do anything about it’. Following this exchange, the Town of Riverview commenced legal action against Charlebois, who in turn brought up linguistic rights arguments in his defence, leading to the events of January 2nd.
Consider the following spectacle; on one side of the bench, three lawyers – one for the Town of Riverview, one for the government of New Brunswick, and one for the city of Moncton with their wheeled briefcases and thick legal memos likely prepared by articling students – all of whom are being paid quite well using the taxes of hardworking citizens such as Charlebois; and on the other side of the bench, a man armed only with the legal knowledge he acquired on his own time, without the benefit of a legal education.
In fact, it is worth mentioning that there were in total four lawyers in the room who were being paid by taxpayers to oppose Charlebois; since the proceedings were in French, the Town of Riverview had to hire another lawyer to plead their case. Their original lawyer was also present, although he sat in the general seating and did not speak, ostensibly billing legal fees at public cost in order to attend a proceeding he could not understand.
The lawyers took turns, for over an hour, needling every aspect of Charlebois’ case by playing with words, arguing against the scope of his defence, alleging that his previous actions were somehow proof of his vexatious character despite the fact that they were often successful. If you didn’t know any better, you might think that they were using procedural grounds to complicate and draw out the proceedings. If you did know better, you would know that it was so.
In particular, the actions by the city of Moncton must be characterized as reprehensible. The city was in no way involved in the dispute with Riverview, and had no real reason to be a part of the affair, except for perhaps the fact that by having lost cases against Charlebois in the past they have the most to gain by forcing him to continue jumping through extra hoops in order to access the legal system.
Moncton’s high-priced lawyer from McInnes Cooper, one of the largest and most powerful law firms in Atlantic Canada, argued that, according to the Rules of Court, Charlebois was required to commence a separate suit to contest the Frivolous and Vexatious Order. According to their twisted logic, in order for a person to demonstrate that they are not commencing unnecessary legal actions, they should be forced to essentially ask the same question twice in two separate lawsuits, multiplying costs for everyone and delaying the process. All of this, Moncton’s lawyer said with a straight face, in order to respect a rule enacted with the purpose of simplifying legal proceedings and making them more efficient.
Oddly enough, the evidence that Moncton’s lawyer from McInnes Cooper used to support its arguments was amateurish at best – its Affidavit contained photocopied versions of previous judgments involving Charlebois, and articles from newspaper. As any second-year law student knows, such declarations qualify as “hearsay”, and are not admissible since they are not within the personal knowledge of the person making the statement. However, the judge presiding over the affair exercised her discretion to overlook this rule when Charlebois objected. “I know it’s hearsay,” she said, “but I’m going to accept it anyway.” So when powerful interests get tripped up in procedure it is an allowable error, but when private parties do so they should be held to the full and severest extent of the law? Can we really say that the two parties are playing by the same set of rules?
Concern for the reputation of the administration of justice in Canada is one of the most important features of our legal system. And our legal system is one of the best in the world; at least according to law school professors. But spend five minutes with an ordinary citizen who has had to deal with our justice system and you’ll often find they view the system as fundamentally flawed, unnecessarily complicated and obtuse, or simply biased in favour of the rich and powerful.
Guess what? That’s what most lawyers think too. The Canadian Bar Association even went so far recently as to characterize the ability of ordinary people to obtain fair results from the courts in Canada as “abysmal”.
The actions by the Province of New Brunswick, the Town of Riverview, and the city of Moncton against Charlebois can be said to exemplify the worst of the Canadian legal system, in which powerful interests use procedural requirements in the law to exhaust, confound, and intimidate weaker parties.
Faced with spending exorbitant fees to have a lawyer research an undeveloped area of the law, Charlebois took the unthinkable decision to struggle through the process and learn the law himself. Of course, this takes tenacity; the lack of technical knowledge and short learning curve will lead to mistakes and inefficiencies. But to call him frivolous and vexatious for daring to point out to the government its repeated and ongoing violations of constitutional rights? And then to have four lawyers hired to attack him, whose salaries are being paid using Charlebois’ own taxes? This is ridiculous.
Faced with such a situation, many people choose to, as the Chief Justice of Canada’s Supreme Court Beverly McLachlin stated, “just swallow their pain and their loss and live with it, I guess, in some unsatisfactory way feeling they can’t get justice.”
Thankfully for those who care about the respect of ordinary citizens’ civil rights by our government, Mario Charlebois hasn’t.
Nelson Peters has a degree in Civil law from Universite Laval in Quebec City.
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