Caron v Alberta
The Supreme Court of Canada determined whether Alberta’s Languages ActFootnote 1 is ultra vires or inoperative insofar as it abrogates a constitutional duty owed by Alberta to enact, print and publish its laws and regulations in English and French, and whether the Traffic Safety ActFootnote 2 is inoperative.
Background
Factual background
Gilles Caron and Pierre Boutet were charged with traffic offences under Alberta’s Traffic Safety Act and Use of Highway and Rules of the Road Regulation. The accused argued that the Act and its Regulation were unconstitutional because they were enacted in English only. Moreover, they submitted that Alberta’s Languages Act was inoperative because 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 English and French. They maintained that, because the Rupert’s Land and North-Western Territory OrderFootnote 3 (1870 Order)—which admitted the North-Western Territory and Rupert’s Land to Canada—is part of the Constitution of Canada, it included a constitutional guarantee of bilingualism. Their challenge was successful at trial but was rejected by the summary conviction appeal court and the Alberta Court of Appeal.
Historical background
In 1870, the western territories controlled by the Hudson’s Bay Company became part of Canada following negotiations and an agreement between Canadian officials and representatives of the territories. The result was that the new province of Manitoba was added, as well as a vast land mass called the North-Western Territory and Rupert’s Land—which includes most of what is now Alberta, Saskatchewan, Nunavut, Yukon, the Northwest Territories and parts of Ontario and Quebec. Although Manitoba was annexed by virtue of the Manitoba Act, 1870,Footnote 4 which expressly provided for legislative bilingualism, the remainder of the lands under federal administration were annexed under the 1870 Order, which does not contain such an explicit guarantee.
The Supreme Court had to rule on whether language rights were guaranteed by the promise made by Parliament in 1867 (the 1867 Address), which was incorporated into the 1870 Order.
Decision
Absence of an entrenched guarantee (Reasons of the majority)
The Supreme Court rejected Mr. Caron and Mr. Boutet’s position.
Absence of explicit terms in the 1870 Order
The Court ruled that never in Canada’s constitutional history had the words “legal rights,
” used in the 1867 Address that was incorporated into the 1870 Order, been understood to confer language rights. Language rights have always been expressly conferred. Section 133 of the Constitution Act, 1867Footnote 5 and the Manitoba Act, 1870 include very clear provisions on this. The 1867 Address, enacted at the same time as these provisions, does not include any such express and mandatory language. Had the intent been to accord constitutional protection to language rights in the annexed territories outside Manitoba, wording similar to that in section 23 of the Manitoba Act, 1870 would have been used in the 1870 Order.
Lists of Rights
Contemporaneous discussions show that neither Canada nor the representatives of the territories ever considered that the phrase “legal rights
” included language rights. Language-related demands were treated as distinct from the protection of more general or proprietary rights in the Lists of Rights.
Parliamentary debates
A major point of disagreement throughout the parliamentary debates focused on the parliamentary grant of power to the executive to reach an agreement with the Hudson’s Bay Company about its “legal rights.
” It is clear from the debates that “legal rights
” referred to proprietary rights over the territory.
Language rights addressed in the Manitoba Act, 1870
The contemporaneous evidence also shows that the territorial representatives considered that language rights had been assured through the Manitoba Act, 1870, not the 1867 Address nor the 1870 Order. Although the representatives sought to entrench their language rights, there is no evidence that the negotiations resulted in a pact with Canada to establish legislative bilingualism in all of the annexed territories. The Court dismissed Mr. Caron and Mr. Boutet’s argument that the Métis would not have accepted legislative bilingualism for only part of the annexed territory, thereby abandoning the concerns of the settlers in outlying regions. In fact, many of the settlers’ demands were not met, including the demand that all territories enter Canada as a province. Only Manitoba was accepted as a province, and the rest of the territories were under Parliament’s jurisdiction. Many of the demands were tied to the creation of a province and the existence of a provincial legislature; these were incorporated in the Manitoba Act, 1870, but the population living outside the province received none of these rights.
1867 Address incorporated into the 1870 Order
There is no evidence that shows the Imperial government entrenched the compromise regarding legislative bilingualism reached in 1870 by incorporating as a schedule the 1867 Address, which was issued by the Canadian government and does not make specific reference to language rights.
Federal legislation related to the new North-West Territories in 1875 and 1877
The federal legislation and the debates surrounding it 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. In 1875, the North-West Territories Act, 1875Footnote 6 governed the North-Western Territory, which had previously been governed by the Temporary Government of Rupert’s Land Act, 1869,Footnote 7 an act that said nothing about legislative bilingualism. In 1877, the North-West Territories Act, 1875 was amended, and Parliament added a section providing for legislative bilingualism. Subsequently, that section became section 110 of the North-West Territories ActFootnote 8 and was amended in 1891 to expressly place legislative bilingualism under the competence of the territorial legislature. In 1905, the provinces of Saskatchewan and Alberta were created, and the provisions of section 110 of the North-West Territories Act continued to be part of the legislation of these provinces. The argument that legislative bilingualism was entrenched for all of the annexed territories in 1870 must be rejected because it would make section 110 redundant and its subsequent amendment invalid.
R. v Mercure
In R. v Mercure,Footnote 9 the Supreme Court ruled that there was no entrenched right to legislative bilingualism in Saskatchewan and that the constitutional position of Alberta on this point was indistinguishable. Moreover, the expression “vested rights
” was interpreted in a different context in R. v Mercure and cannot be used to interpret the terms of the 1870 Order.
Subsequent events
The legislative history after 1870 cannot support an inference regarding the 1870 Order on legislative bilingualism. There is no evidence that the joint bilingual administration of the North‑Western Territory as of 1870 was part of the implementation of a constitutional guarantee. On the contrary, Canada ended the joint administration in 1875 with the enactment of the North‑West Territories Act, 1875, which contained no guarantee regarding legislative bilingualism. The 1877 amendment to this Act adding legislative bilingualism was not adopted out of a sense of constitutional obligation.
Moreover, section 133 of the Constitution Act, 1867 only applies to the Parliament of Canada and Quebec, and cannot be used to support Mr. Caron and Mr. Boutet’s argument.
Lastly, the 1869 Royal Proclamation does not entrench legislative bilingualism. In fact, the words “civil and religious rights and privileges
” do not connote a solemn promise to guarantee legislative bilingualism.
According to the Court, the words, the context and the purpose of the 1869 Royal Proclamation show that it was designed to defuse the conflict in the face of the annexation, rather than to accede to the demands of the residents of the territories concerning language rights.
The Court also dismissed the argument that Parliament and the Crown owed a fiduciary duty to Métis and the French-speaking population with regard to legislative bilingualism.
The Court ruled that the historical record and the underlying principles of constitutional interpretation cannot support Mr. Caron and Mr. Boutet’s arguments. Absent some entrenched guarantee, a province has the authority to decide on the language or languages to be used in its legislative process.
The will of the people (dissenting reasons)
Three judges gave dissenting reasons in as to why they would have allowed the appeal and concluded that Alberta is constitutionally required to enact, print and publish its laws in both English and French. The judges based their argument on the fact that 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. In their interpretation of the 1867 Address, the judges focused on the expression of the will of the people and reached the following three conclusions: (1) it can be seen from the historical record that legislative bilingualism was in effect throughout the territories before the annexation; (2) representatives of the territories demanded legislative bilingualism as a peremptory condition for annexation, and Canadian representatives gave assurances that this demand would be met; and (3) the 1867 Address enshrined the promise of legislative bilingualism, and this interpretation is supported by subsequent documents.
Footnotes
- Footnote 1
-
RSA 2000, c L-6.
- Footnote 2
-
RSA 2000, c T-6.
- Footnote 3
-
(1870) (U.K.).
- Footnote 4
-
SC 1870, c 3.
- Footnote 5
-
U.K. 30 & 31 Victoria, c 3.
- Footnote 6
-
SC 1875, c 49.
- Footnote 7
-
SC 1869, c 3.
- Footnote 8
-
RSC 1886, c 50.
- Footnote 9
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[1988] 1 SCR 234.