35842   Caron v. Alberta

Constitutional law — Language rights

On appeal from a judgment of the Alberta Court of Appeal, 2014 ABCA 71, setting aside the acquittals entered by Wenden Prov. Ct. J., 2008 ABPC 232.

C and B were charged with traffic offences under the Alberta Traffic Safety Act and the Use of Highway and Rules of the Road Regulation, which were enacted in English only. Both claimed that the law and regulation were unconstitutional because they were not enacted in French, and further that the Alberta Languages Act was inoperative to the extent that it abrogates what they claimed was a constitutional obligation on the part of Alberta to enact, print and publish its laws and regulations in both French and English.

In 1870, the vast western territories under the control of the Hudson’s Bay Company became part of Canada. The terms of this Canadian expansion were largely the result of negotiations and agreement between Canadian officials and representatives of the territories. The result was that the new province of Manitoba was added by the Manitoba Act, 1870. Further, the remainder of what had been the North‑Western Territory and Rupert’s Land — a vast land mass including most of what is now Alberta, Saskatchewan, Nunavut, the Yukon, the Northwest Territories, and parts of Ontario and Quebec — was annexed as a new Canadian territory under federal administration by the 1870 Rupert’s Land and North‑Western Territory Order (the “1870 Order”). The Manitoba Act, 1870 expressly provided for legislative bilingualism. The 1870 Order did not.

C and B contend, however, that legislative bilingualism was in fact guaranteed for both areas and therefore extends to the modern province of Alberta, which was created out of the new territory. Their argument is intricate and has changed over time, but rests on one key proposition: an assurance given by Parliament in 1867 (the “1867 Address”) that it would respect the “legal rights of any corporation, company, or individual” in the western territories must be understood as a promise of legislative bilingualism. And that promise is an entrenched constitutional right because the 1867 Address became a schedule to the 1870 Order, which is part of the Constitution of Canada by virtue of s. 52(2)(b) and the Schedule to the Constitution Act, 1982. Their challenge was successful at trial, but was rejected by the summary conviction appeal court and by the Court of Appeal.

Held (6:3) (Abella, Wagner and Côté JJ. dissenting): The appeals should be dismissed.

Per McLachlin C.J. and Rothstein, Cromwell, Moldaver, Karakatsanis and Gascon JJ.:

Alberta is not constitutionally obligated to enact, print and publish its laws and regulations in both French and English. C and B’s position is inconsistent with the text, context, and purpose of the documents on which they rely and must be rejected. Absent some entrenched constitutional guarantee of legislative bilingualism, a province has the authority to decide the language or languages to be used in its legislative process. Clearly, a province may choose to enact its laws and regulations in both French and English. But one cannot simply infer a guarantee of legislative bilingualism that would override this exclusive provincial jurisdiction absent clear textual and contextual evidence to support an entrenched right.

Linguistic rights have always been dealt with expressly from the beginning of Canada’s constitutional history. It has never been the case that the words “legal rights” have been understood to confer linguistic rights. The words “legal rights” in the 1867 Address cannot support a constitutional guarantee of legislative bilingualism in the province of Alberta. Contemporaneous guarantees of language rights were explicit and clear. The Canadian Parliament knew how to entrench language rights and did so in the Constitution Act, 1867 and the Manitoba Act, 1870 in very similar and very clear terms. The total absence of similar wording in the contemporaneous 1867 Address or 1870 Order counts heavily against C and B’s contention that the words “legal rights” should be understood to include language rights.

In fact, the contemporary discussions show that neither Canada nor the representatives of the territories ever considered that the promise to respect “legal rights” in the 1867 Address referred to linguistic rights. Rather, the contemporary evidence shows that the territorial representatives considered that their linguistic rights had been assured through the Manitoba Act, 1870, not 1870 Order, and not the 1867 Address, which is annexed as a schedule to the 1870 Order. In addition, the parliamentary debates related to the adoption of the 1867 Address show that language rights were not subsumed under the phrase “legal rights”.

There is no doubt that the territorial representatives sought to entrench bilingual rights, just as there is no doubt they sought for the territories to enter Canada as a province. However, the contrast between the two contemporaneous documents in relation to legislative bilingualism could not be more stark. There is express provision in the Manitoba Act, 1870 for legislative bilingualism in terms that were very similar to those used in s. 133 of the Constitution Act, 1867. However, in the 1870 Order, there is no express reference to legislative bilingualism. This strongly suggests that while legislative bilingualism was successfully negotiated and established for the new province of Manitoba, there was no similar agreement or provision for legislative bilingualism in the newly annexed territories.

The purpose of the 1870 Order was simply to effect the transfer of Rupert’s Land and the North‑Western Territory to Canada. To the extent that an historic compromise was reached to entrench legislative bilingualism as part of the annexation of Rupert’s Land and the North‑Western Territory, it was entrenched in the Manitoba Act, 1870, and not elsewhere. C and B’s position overlooks the failure of the territorial representatives to have the entire territories enter Canada as a province. Instead, the territorial representatives accepted a compromise whereby only a small portion of the territories — the province of Manitoba — would join the Dominion as a province, and the rest of the territories would be under Parliament’s jurisdiction. This is no small detail. Many of the territorial representatives’ demands were tied to the creation of a province and the existence of a provincial legislature (demands such as voting rights, representation in the Canadian Senate and House of Commons, and the subsidy to the province in proportion to its population). Like the right to legislative bilingualism, these demands were incorporated in the Manitoba Act, 1870, but the population outside the newly created province received none of these rights.

Furthermore, it would be incongruous for an 1867 document to embody a compromise reached only three years later in 1870. Rather, this tends to confirm that the end result of the negotiations was theManitoba Act, 1870 — a bill adopted at the culmination of the negotiations.

To be sure, it is possible that parties to a negotiation could agree to give effect to an agreement by entrenching an older document. In the present case, however, this is implausible. B’s assumption that the British government could effectively entrench the compromise regarding legislative bilingualism reached in 1870 — by incorporating as a schedule an 1867 document issued not by the British government but by the Canadian government, one that makes no specific reference to language rights — is purely speculative.

One cannot simply resort to the historical evidence of the desires and demands of those negotiating the entry of the territories, and presume that those demands were fully granted. It is obvious that they were not. The Court must generously interpret constitutional linguistic rights, not create them. It must look at the ordinary meaning of the language used in each document, the historical context, and the philosophy or objectives lying behind the words and guarantees.

Accepting C and B’s position that legislative bilingualism was entrenched for all of the annexed territories in 1870 would require holding that the understanding of the status of legislative bilingualism in the new province of Alberta was fundamentally misunderstood by virtually everyone involved in the debate in the House of Commons at the time the province was created. However, federal legislation and the related debates in relation to the new North‑West Territories in 1875 and 1877 show that no one involved thought that there had been any guarantee of legislative bilingualism in 1870.

Finally, in 1988, this Court held in R. v. Mercure, [1988] 1 S.C.R. 234, that there was no entrenched right to legislative bilingualism in Saskatchewan and the constitutional position of Alberta on this point is indistinguishable. If C and B’s position is right, Mercure was wrong. Although the English text of the1867 Address remains unchanged, the French text has evolved over time. In the initial version published in the Journaux de la Chambre des communes du Canada, the phrase “legal rights” is translated as “droits acquis”. But in the text of the 1867 Address that was eventually annexed as a schedule to the 1870 Order, the phrase used is “droits légaux”. In any event, the analysis in this case does not depend upon which version of the French text is used. Whether the French version reads “droits acquis” or “droits légaux”, the conclusion remains the same.

Per Abella, Wagner and Côté JJ. (dissenting):

Alberta is constitutionally required to enact, print and publish its laws and regulations in both French and English. This is because the historic agreement between the Canadian government and the inhabitants of Rupert’s Land and the North‑Western Territory contained a promise to protect legislative bilingualism. That agreement is constitutionally entrenched by virtue of the 1867 Address, which stated that upon Great Britain’s agreeing to transfer the territories, Canada would provide for the “legal rights” of any individual therein.

The constitutional status of the 1867 Address is reaffirmed in the modern context by virtue of it being annexed to the 1870 Order, which is a constitutional document pursuant to s. 52(2)(b) of and the Schedule to the Constitution Act, 1982. The principles of constitutional interpretation must therefore be applied to the 1867 Address in order to establish the meaning of the term “legal rights”. Properly understood, the constitutional compromise that gave rise to the promise to respect “legal rights” encompasses legislative bilingualism. Moreover, the case of R. v. Mercure, [1988] 1 S.C.R. 234, is not dispositive because this Court did not undertake an analysis of the compromise underlying the1870 Order.

The historical context leads to the unavoidable conclusion that there was a historic compromise regarding legislative bilingualism. The 1867 Address established a constitutional guarantee of legislative bilingualism throughout the territories annexed in 1870. The Address promised that, once the annexation took place, Canada would provide for the “legal rights” of any individual therein. By its very terms, this promise was a forward‑looking undertaking that was meant to be shaped by subsequent negotiations. The meaning of its terms must therefore be informed by those negotiations.

The historical record shows convincingly that the territorial representatives demanded legislative bilingualism as a condition of annexation, and that the Canadian representatives accepted that demand without objection — indeed, with assurances that it would be met. This demand for legislative bilingualism and its acceptance by Canada were grounded in the pre‑annexation linguistic rights and practices in the territories, including an established right to legislative bilingualism. This historical context shows that by the time the 1870 Order annexed the territories to Canada, the Canadian government had come to accept that legislative bilingualism was among the rights of the territories’ inhabitants. Thus, when the documents are properly interpreted in their entire context, legislative bilingualism was included in the promise of the 1867 Address — itself incorporated into the 1870 Order— to respect the inhabitants’ “legal rights”.

Specifically, the historical evidence shows that linguistic rights were of paramount importance to the inhabitants, and that they demanded and obtained a promise that these rights would be protected. This conclusion is reached on the basis of six overarching points. First, bilingualism was indisputably well established throughout Rupert’s Land and the North‑Western Territory in the period leading up to — and immediately following — the annexation. This was true of legislative bilingualism but also permeated the social and judicial fabric of the community.

At trial, the judge thoroughly canvassed the pre‑1870 legislative and judicial practices in Rupert’s Land. His findings of fact are entitled to deference and may be disturbed only on the basis of a palpable and overriding error. He found that legislative and judicial bilingualism had existed before the annexation, and extended throughout the territories. He concluded that the French language had had equal and official status before the annexation. These commitments to bilingualism illustrate how deeply the French language was rooted in the region, and the fact that it formed an important part of the context in which the deal took place.

Second, legislative bilingualism was consistently demanded in the negotiations and met with no resistance from the Canadian delegates, who were eager to reach a compromise with representatives of the inhabitants. Third, it was necessary to negotiate with those representatives in order to proceed with the annexation. Fourth, the Canadian and British governments made a number of promises that assured the inhabitants that bilingualism would be preserved. Fifth, the governments kept these promises and conducted themselves in accordance with them in the years immediately following the 1870 compromise. Sixth, these linguistic practices, the demands that they be maintained and the promises to maintain them applied throughout the territories and were not confined to the Red River Colony.

The result of the negotiations was the addition of two new regions to the Dominion of Canada. That these new regions entered the Dominion pursuant to different instruments is no reason to ignore the singular context of the negotiations. The creation of the Province of Manitoba and the explicit protection of minority language rights in that province cannot lead to an inference that no such rights existed in the North‑Western Territory. Such an interpretation is inconsistent with fundamental principles of constitutional interpretation. Moreover, there is no evidence that the delegates simply capitulated and renounced their conditions as regards the extensive territory. The annexation was achieved not by conquest, but by negotiation.

The end result of the negotiations regarding legislative bilingualism was not the enactment of theManitoba Act, 1870 alone. Any other conclusion rests on the contrast between the Manitoba Act, 1870and the 1870 Order and, in particular, on the fact that the latter contained no express reference to legislative bilingualism. This contrast is a “red herring” and is of no help in this case. These two instruments are not really comparable, as they did not come from the same legislative authorities — the Manitoba Act, 1870 was passed by the Canadian Parliament, while the 1870 Order was issued by the British authorities. Furthermore, the 1870 Order contained an explicit promise to respect the “legal rights” of the inhabitants set out in the 1867 Address. This promise encompassed the protection of legislative bilingualism. In addition, the Manitoba Act1870 not only dealt with matters arising in the new province, but also in the territories. Therefore, a proper understanding of the safeguards for legislative bilingualism set out in the Manitoba Act, 1870 is that they effectively extended to the newly created territories. Finally, the annexed territories fell under federal authority. It was therefore guaranteed pursuant to s. 133 of the Constitution Act, 1867 that federal Acts applicable to the territories would be printed and published in both languages as a consequence of their being Acts of the Parliament of Canada.

In sum, after the annexation, there were two Canadian legislatures that were competent to pass laws in the annexed territories — the new Manitoba legislature and the Parliament of Canada. Both were under a constitutional obligation to publish laws in English and French. 

In addition to the historical context, there are three principles of constitutional interpretation that must inform any reading of the 1867 Address. The first is that the Constitution must be interpreted in light of its historical, philosophical and linguistic context. The second is that constitutional provisions must be interpreted broadly and purposively. The third relates to the very nature of a constitution, which is an expression of the will of the people. The application of these principles to the 1867 Address leads to the conclusion that it enshrined a constitutional guarantee of legislative bilingualism that applied throughout the territories annexed in 1870.

It can be seen from the historical record that legislative bilingualism was in effect throughout the territories before the annexation. In fact, the Parliament of Canada delivered the 1867 Address in both languages. In the initial French version, the equivalent of the expression “legal rights” was “droits acquis”. This initial translation is significant because it provides insight into the drafters’ intent. The French term “droits acquis” is more naturally translated into English as “vested rights”. Such a right can be defined as one based on “very strong expectations the fulfilment of which citizens had just cause to count on”. This description of the rights that were to be respected and protected by Canada upon the transfer of the region is apt given the historical context. Canada was making a commitment in relation to the annexation of the territories. The meaning of the term “legal rights” is therefore anchored in the context of the transfer — it refers to the “vested rights” of the inhabitants. And legislative bilingualism was one of them.

In addition, representatives of the territories demanded legislative bilingualism as a peremptory condition for annexation, and this demand was met with no resistance from Canada. On the contrary, Canadian representatives offered clear assurances that legislative bilingualism in the territories would unquestionably be provided for.

Read against this background, the 1867 Address enshrined the promise of legislative bilingualism, and this interpretation is supported by subsequent documents, notably the Royal Proclamation of 1869. Finally, nothing in the Manitoba Act, 1870 negates this reading; indeed, that Act effectively ensured that legislative bilingualism would continue to prevail throughout the territories after the annexation.

In short, the historical record clearly shows that there was an agreement to protect legislative bilingualism throughout the annexed territories. This agreement was constitutionally enshrined in the1870 Order, which incorporated the 1867 Address, as is confirmed by the events of that period.

Reasons for Judgment by Cromwell and Karakatsanis JJ.

Dissenting Reasons by Wagner and Côté JJ.

Neutral Citation: 2015 SCC 56 Docket No. 35842

http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/15629/index.do