Supreme Court of Canada rules Alberta not constitutionally obligated to enact laws in French
20, November 20, 2015 - Filed in: Court Cases
"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."
The S.C.C. (6:3) dismissed the appeals.
From the decision:
Justices Cromwell and Karakatsanis wrote as follows (at paras. 1, 5-6, 100-103, 107, 110):
"…The province of Alberta’s Languages Act, R.S.A. 2000, c. L-6, provides that laws may be enacted in English only. The appellants claim that this is unconstitutional. While they take no issue with the general rule that the language of provincial legislation is a matter for the Province to decide, they say that an exception to this general rules applies here: there is a constitutional right, from which the Province may not derogate, to have Alberta laws enacted in both English and French. We will refer to this as a right to legislative bilingualism. The Province maintains that there is no such right.
There is, of course, no question that linguistic duality and linguistic rights with respect to French and English are deeply rooted in our history and reflect our fundamental principles of constitutionalism and the protection of minorities. They are basic to the very idea of Canada. The Court must, as it has often affirmed, “take special care to be faithful to the spirit and purpose of the guarantee of language rights”: Mercure, at pp. 269-70, quoting Société des Acadiens du Nouveau-Brunswick Inc. v. Association of Parents for Fairness in Education,  1 S.C.R. 549, at p. 564. The Court must also be mindful, however, that federalism — another fundamental constitutional principle — recognizes a large measure of “autonomy of provincial governments to develop their societies within their respective spheres of jurisdiction”: Reference re Secession of Quebec,  2 S.C.R. 217, at para. 58. We must be equally faithful to the spirit and purpose of all of these fundamental constitutional principles.
We therefore cannot, as the appellants ask us to do, allow the pursuit of language rights to trample on areas of clear provincial legislative jurisdiction. Neither can we resolve the tension arising from the interplay of fundamental constitutional principles, as the appellants ask us to do, by resorting to broad and uncontroversial generalities, or by infusing vague phrases with improbable meanings. Rather, we must examine the text, context and purpose of our Constitution to see whether there is a constitutional constraint on the power of the province of Alberta to decide in what language or languages it will enact its legislation.
In summary, at its highest the appellants’ argument is that there was a constitutional guarantee for bilingualism in the North-Western Territory located in the 1870 Order or in the 1869 Proclamation. In the context of the unrest, the Lists of Rights, and the negotiations, the promise to respect “legal rights” or “droits acquis” / “droits légaux” or “rights and privileges” represented an historic compromise and a constitutional guarantee operating to limit a province’s power to legislate within its own area of competence. The fact that the joint administration of the North-Western Territory beginning in 1870 was bilingual, combined with the operation of s. 133 of the Constitution Act, 1867 , shows that the inhabitants of the North-Western Territory were successful in getting what they bargained for: bilingual governance.
At their most basic, the essence of these lines of reasoning is as follows: the inhabitants of the territories demanded legislative bilingualism in the negotiations with Canada, and we must hold that Canada acceded to this demand and granted a constitutionally protected right throughout the territories, either because Parliament assured the inhabitants in the 1867 Address that their “legal rights” would be respected and this was attached to the 1870 Order, or because of the assurances given by the Governor General in 1869.
We note that these arguments have far-reaching consequences. They would require holding that bilingualism has been constitutionally entrenched not only for Alberta, but also for all of the former HBC lands, which now form part of Saskatchewan, Ontario, Quebec, Yukon, Nunavut and present-day Northwest Territories. This reasoning would also require holding that this Court’s decision in Mercure is erroneous because bilingualism has been protected in Saskatchewan since 1870. The logical extension of this reasoning would also lead inevitably to the conclusion that a variety of other demands made by the settlers have been constitutionalized by the words “legal rights”. To note but one example, the settlers demanded bilingual judges (“XVIII. that the Judge of the Supreme Court speak the English and French languages”: third List of Rights). As our colleagues describe, this reflected the practice of the time in the pre-annexation territorial courts. The argument that supports the entrenchment of legislative bilingualism throughout the annexed territories supports equally the entrenchment of a right to the exclusive appointment of bilingual judges to the Superior Court, which would continue to the present day.
However, these arguments cannot be sustained in the face of the historical record and the underlying principles of constitutional interpretation. Absent some entrenched guarantee, 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 French and English. But we 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. It has never been the case in our constitutional history that a right to legislative bilingualism was constitutionalized by inference through the vehicle of the words “legal rights”. The words in the 1867 Address cannot support a constitutional guarantee of legislative bilingualism in the province of Alberta. Parliament knew how to entrench language rights and did so in the Manitoba Act, 1870 but not in the 1867 Address.
With respect to the relationship between the Métis and the Crown, a fiduciary duty may arise as a result of the “Crown [assuming] discretionary control over specific Aboriginal interests” (Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73,  3 S.C.R. 511, at para. 18). While this Court has noted that the relationship between the Métis and the Crown, viewed generally, is fiduciary in nature, not all dealings between parties in a fiduciary relationship are governed by fiduciary obligations (Manitoba Metis, at para. 48; see generally paras. 46-50). The appellants have not demonstrated that a fiduciary duty attaches to the Crown in these circumstances.
While costs typically follow the outcome of the case, this Court has the discretion, in appropriate circumstances, to award costs on appeal and in the courts below regardless of the outcome (Supreme Court Act, R.S.C. 1985, c. S-26 , s. 47 ). Here, we would exercise our discretion to depart from the normal practice: despite their lack of success, we would award Mr. Caron and Mr. Boutet their costs on a party and party basis."
Note: The summary and body are drawn from Eugene Meehan’s SupremeAdvocacy Weekly Updates for the Law Community.