Pouvez-vous dire violation de la Charte? Minority Language Education Rights in Canada

How does the Charter of Rights and Freedoms regulate provincial governments’ funding decisions with respect to minority language schools? In a recent decision, Conseil scolaire francophone de la Colombie-Britannique v. British Columbia (Conseil Scolaire),[1] the Supreme Court of Canada (SCC) confronted this question in relation to French-language education in British Columbia. Prior to this decision, Canadian courts had repeatedly confirmed the existence of a link between language, culture and the overall sense of well-being for individuals and linguistic communities.[2] The SCC has stressed that “[l]anguage is more than a mere means of communication, it is part and parcel of the identity and culture of the people speaking it.”[3] School plays a role in promoting the development of minority linguistic communities as “a setting for socialization where students can converse with one another and develop their potential in their own language and, in using it, familiarize themselves with their culture.”[4] This begins to explain why the right to receive instruction in one of Canada’s official languages is entrenched in the Canadian Constitution under section 23 of the Canadian Charter of Rights and Freedoms, 1982.[5] (more…)

Bill 101

This article was written by a law student for the general public.

The Charter of the French Language (S.Q. 1977, c. 5), an important statute adopted by the Quebec National Assembly in 1977, is popularly known as ‘Bill 101’ from its designation on the order paper when it was first introduced by the Parti Québécois government.

Concern for the future of the French language began to be expressed in Quebec during the 1960s after the birth rate declined abruptly during the Quiet Revolution. Immigrants tended to adopt English rather than French and to send their children to English schools, and some demographers predicted that Montreal would again become a mainly English-speaking city, as it briefly had been in the mid-nineteenth century. In 1973, the Gendron Commission recommended measures to encourage the use of French, especially in the economy, and the Liberal government introduced an Official Language Act (‘Bill 22’) in 1974. The Parti Québécois, deeming the latter measure inadequate, replaced it with ‘Bill 101’, which makes French the “normal” language of municipal, public and para-public administration, imposes stringent French language tests for admission to the professions, requires most businesses with more than fifty employees to operate mainly in French, and requires collective agreements to be drafted in French. Originally it restricted the use of English in the National Assembly and the courts, but these provisions were contrary to section 133 of theConstitution Act, 1867 and were struck down by the Supreme Court of Canada in 1979 (see Quebec (A.G.)v. Blaikie, [1979] 2 S.C.R. 1016).

The most controversial sections of ‘Bill 101’ were those restricting access to English schools and prohibiting the use of English on commercial signs. Both became vulnerable after the Canadian Charter of Rights and Freedoms took effect in 1982. Soon afterwards the Supreme Court of Canada ruled that ‘Bill 101’ must be brought into conformity with section 23(1)(b) of the Charter, which guarantees Canadian citizens who received an English education in Canada the right to educate their children in English (see Quebec (A.G.) v. Quebec Protestant School Boards, [1984] 2 S.C.R. 66). In 1988 the provision relating to signs was struck down as a violation of freedom of expression (see Ford v. Quebec A.G., [1988] 2 S.C.R. 712), but the Bourassa government promptly used the notwithstanding clause to re-enact it in a modified form, a measure that caused three anglophone cabinet ministers to resign. In 1993 a further modification allowed English to appear on signs posted outdoors provided the French words were more prominent.

Although it has been amended several times and is resented or ridiculed by many Quebec Anglophones, ‘Bill 101’ remains an important symbol of Quebec’s determination to maintain French as a viable language in a continent that speaks mainly English.


Are Canada’s ‘Official Languages’ Still Relevant in Canada Today? (2)

This article was written by a law student for the general public.

Are Canada’s ‘Official Languages’ Still Relevant in Canada Today?


Language is more than just a communication tool. While speech is indeed a means to exchange thoughts, it is also deeply tied to concepts of identity, culture, and nationalism. Today, Canadian citizens speak a multitude of languages, yet English and French are the only two that are constitutionally protected.

Recent cases challenge the status quo. For instance, organizations in Nunavut have expressed dissatisfaction over the lack of federal funding for Indigenous language studies[1] Additionally, the Truth and Reconciliation Commission released its report on June 2, 2015, which called for the acknowledgement of Aboriginal language rights, the adoption of an Aboriginal Languages Act, and the appointment of an Aboriginal Languages Commissioner.[2] Many Indigenous communities recognize a different local vernacular, such as Inuktituk or Ojibway. Moreover, immigration has introduced new and diverse languages into Canadian communities. This begs the question: do Canada’s official languages still matter in 2015?

The Development of Canadian Bilingualism

Bilingualism is defined as the ability to communicate in two languages. Fluency means to read, write, and speak in both languages with ease. In Canada, bilingualism refers to English and French, recognizing that equal usage fluctuates across the country. According to the latest census data, Statistics Canada reports a total of 5.8 million Canadians speak English and French.[3] While this may seem like a large number, from 2001 to 2011 the number of dual language speakers in Canada decreased after four consecutive decades of growth.[4] Although the number is still sizeable, data shows the proportion of individuals who speak both languages to be falling. So, why are English and French prioritized above other languages?

Canada became a country as a result of a “compact” between two groups: the English and the French.[5] A federal system of government allowed for a compromise between these two groups, as they sought to balance uniqueness with the need for unity. Language was a seminal theme and, as such, section 133 of the British North America Act referred to dual languages in legislative institutions as a means of preserving French culture. [6]

Movement to further enshrine Canada’s official languages emerged in the 1960s. From 1967 to 1970, a royal commission held public consultations concerning bilingualism and biculturalism.[7] The authors of this report recommended that English and French be declared the official languages of the country.[8] From here, official bilingualism was made law through the Official Languages Act.[9] This policy was then further entrenched in the Charter of Rights and Freedoms.[10] Sections 16 through 22 of the Charter state that English and French are Canada’s official languages, making it a right to use French or English in Parliament, courts, or governmental offices. Section 23 provides minority language rights to linguistic minorities in a given province or territory. In essence, the use of both languages must be allowed. However, neither statute nor practice mandates that every person speak both languages across Canada.

Where Does Canadian Bilingualism Stand Today?

There are at least two perspectives on Canada’s official languages. One view seeks to preserve existing English and French language practices. For example, in April 2015, the Supreme Court released a decision concerning section 23 minority language rights. The justices ruled in favour of a parental association in Vancouver that claimed the French educational services being provided were not equivalent to those in English.[11] In this decision, it was unanimously agreed that the school was not doing enough to equate French and English education services. They determined that minority language education is a “sliding scale,” with those in a minority situation being put at a disadvantage compared to the majority.[12] Therefore, French and English education should be given equal priority.

R v Caron, a case that has been heard by the Supreme Court of Canada, also tests minority language rights under section 23 of the Charter.[13] This case deals with the use of French in Alberta courts. Mr. Caron and Mr. Boutet were issued multiple traffic violations and claimed that the court documents were invalid because they were printed in English. Mr. Caron further argued for his right to use French in Alberta courts. This raises the question of whether, in a province such as Alberta where the majority of people speak English, it is necessary for all public information to be printed in both French and English. In February 2014, the Alberta Court of Appeal ruled that the Alberta Languages Act, which stipulates the rules and procedures for English and French usage in provincial institutions, is constitutional.[14] The Supreme Court of Canada heard this case in February 2015 and a decision is expected fall 2015.

Another perspective prioritizes alternative languages. Recently, organizations such as the Nunavut Tunngavik Inc. advocated for greater federal funding of local dialects. According to one individual, "we all know that English and French are the official languages of Canada … Don't forget the Inuktitut language is one of the official languages recognized in our area."[15] In these communities, there is a tension between legal language requirements and day-to-day life. Neither English nor French fits the needs of this specialized population. This complicates the notion of official language application in Canada.

Further, the Truth and Reconciliation Commission released its findings on June 2, 2015. The commission recommended the federal government prioritize traditional languages as a step towards reconciliation. In particular, action items 13 to 17 call on the federal government to: recognize Aboriginal language as part of a broader Aboriginal right; to pass new language legislation; to appoint an Aboriginal Languages Commissioner in consultation with Aboriginal groups; to institute post-secondary education in Aboriginal languages; and to support the reclamation of family names compromised by residential schools. These proposals effectively raise the question of the appropriateness of English and French across the country today, not to mention the assumption of two founding nations.


There is no clear answer whether English and French are appropriate official languages in Canada today. This article only begins to scratch the surface of the modern relevance of Canada’s official languages. For some, French and English are integral to the foundation of this country and must be preserved for future generations. For others, given the increasing awareness of Canada’s Aboriginal history, and the changing demographic of the country with immigration, other languages require equal if not greater attention.

[1] "Nunavut Tunngavik wants more federal funding for Inuktituk" CBC News Online (11 May 2015).

[2] Truth and Reconciliation Commission of Canada: Calls to Action (Winnipeg: Truth and Reconciliation Commission of Canada, 2015) at 13 to 15.

[3] “Study: The evolution of English-French bilingualism in Canada from 1961 to 2011” Statistics Canada (28 May 2013).

[4] Ibid.

[5] For a more in-depth discussion on ‘compact theory’ between the English and French, see Peter H Russell, “Provincial Rights” in Christian Leuprecht & Peter H Russell, eds, Essential Readings in Canadian Constitutional Politics (Toronto: University of Toronto Press, 2011) 159.

[6] Constitution Act, 1867 (UK), 30 & 31 Vict, c 3, reprinted in RSC 1985, App II, No 5 at s 133.

[7] Canada, Report of the Royal Commission on Bilingualism and Biculturalism, (Ottawa, 1967-70) (Chairs: A Davidson Dunton, André Laurendeau, Jean-Louis Gagnon).

[8] Ibid.

<[9] Official Languages Act, RSC 1985, c C-31.

[10] Canadian Charter of Rights and Freedoms, Part I of the Constitution Act 1982, being Schedule B to the Canada Act, 1982 (UK), 1982, c 11.

[11] See Association des parents de l’école Rose-des-vents v British Columbia (Education), 2015 SCC 2.

[12] Ibid.

[13] R v Caron, 2011 SCC 5.

[14] Languages Act, RSA2000,c L-6.

[15] Supra, note 1.

Reference re: Manitoba Language Rights

The Reference power is a uniquely Canadian aspect of the legal system. This means that government is able to submit a “reference question” to the Supreme Court on constitutional matters that haven’t yet and may not ever become a court case. For example, the government can ask whether a law that they are drafting would be constitutional.

In  , the Government of Canada asked the Supreme Court four questions dealing with whether it was constitutionally required for the Government of Manitoba to pass laws in both English and French and whether laws that did not do this would have to be struck down.

The decision that resulted from this Reference deals with a number of critical constitutional issues, from language rights to constitutional supremacy to the rule of law and the “doctrine of necessity”. This reference case is unusual for starting from mutual agreement that the constitution had been violated, for a long time and repeatedly. Disagreement rested, chiefly, on whether and which consequences should be applied.

Chain of Events Leading to the Reference

Relevant historical context begins in 1870, just after the Red River Rebellion. [1] To make peace, the Manitoba Act was drafted between the Métis and the Government of Canada, giving the Métis their own province. [2] The act was “entrenched” into the Constitution Act, 1867 , meaning that, in 1871, the Manitoba Act became part of the Constitution. [3] All statutes – normal laws – must comply with the Constitution. If they do not, they can be struck down by a court. Section 23, of the Manitoba Act was at issue in the Manitoba Reference case. Section 23 reads:

“Either the English or the French language may be used by any person in the debates of the Houses of the Legislature and both those languages shall be used in the respective Records and Journals of those Houses; and either of those languages may be used by any person, or in any Pleading or Process, in or issuing from any Court of Canada established under the Constitution Act, 1867, or in or from all or any of the Courts of the Province, The Acts of the Legislature shall be Printed and published in both those languages.” [4]

Perhaps because of the majority Métis population, who are French-speaking, Manitoba emulated Quebec’s system of bilingualism in its legislatures and courts. Section 23 lays out that requirement and is similar to section 133 of the Constitution Act, 1867, which requires bilingual enactment of laws by the legislature of Quebec. [5]

At the insistence of the Government of Canada, the Manitoba Act had left all un-owned land (Crown land) and the natural resources on that land under federal ownership. [6] In other cases, the provinces had received that power. The federal government wanted control in this area of policy, worried that the Métis would interfere with “white” settlement to the province. [7] As well, Manitoba in 1870 was much smaller than it is now, limited to the Métis stronghold. Its territory was extended in 1881 by the Manitoba Boundaries Extension Act. [8] As settlement continued, demographics in Manitoba changed. Combined with the province’s expanded size, settlement patterns resulted in a francophone minority of roughly one-tenth of the population by 1890. [9]

The large Anglophone majority prompted Manitoba’s Official Language Act, 1890, which declared Manitoba to be a unilingual province.  [10] After that, Manitoba’s legislature passed laws only in English.

Because the Manitoba Act is part of the Canadian Constitution, it cannot be overruled by an ordinary law. It wasn’t long before the Official Language Act, 1890 was ruled unconstitutional. In an 1892 case held in St. Boniface County Court, Pellant v. Hebert, Judge Prud’homme ruled the Act unconstitutional when considering the admissibility of bilingual documents submitted to the court. Manitoba ignored the ruling, neither appealing nor changing the legislation. [11] In Bertrand v. Dussault, 1909, it was once again ruled unconstitutional. However, paying no heed to the ruling of the Court, the Official Language Act remained in use. Manitoba’s legislature continued enacting its laws in English only. [12]

In 1976, the Official Language Act was ruled unconstitutional for a third time, in R. v. Forest. Again, the province made no changes to comply with the ruling. A challenge reached the Supreme Court of Canada in 1979. In Attorney General of Manitoba v. Forest, the highest court found the Official Language Act to be unconstitutional. [13]

The Manitoba legislature reacted in 1980 by making a new law, An Act Respecting the Operation of Section 23 of the Manitoba Act in Regard to Statutes. This act repealed the Official Language Act and took steps to deal with ninety years of legislation that was in English only. [14]

The Reference

Manitoba had a problem: many unilingual laws had been passed after 1890. The Supreme Court ruled that Manitoba had violated the Constitution when it declared itself an English province, meaning that all unilingual laws were unconstitutional. Did that mean all laws instituted after 1890 were completely invalid? Did laws actually have to be written and passed bilingually or was it okay to translate them afterwards? Did the new Act that they had created actually fix the constitutional problem? Manitoba’s entire legal system occupied a state of limbo, providing the impetus to file a reference with the Supreme Court.

In 1984, the Government of Canada submitted  to the Supreme Court of Canada. [15] Four questions were asked. Summarised, the questions were:

1. Is s.23 of the Manitoba Act mandatory or directory? Will the courts enforce the section by striking down laws not enacted bilingually?

2. Are all laws that were not bilingually enacted invalid?

3. Are all of the invalid laws completely without “force and effect”?

4. Manitoba passed an Act in 1980 which attempted to fix the problem of unilingual legislation. Is that Act unconstitutional?

Seven “interveners” – people or organizations not directly involved in the case, but given the ability to offer their input – were allowed. In 1985, the Supreme Court rendered a unanimous decision.

Question #1

Is Section 23 Mandatory or Directory?

The Supreme Court had to decide whether section 23 of the Manitoba Act created a “mandatory” obligation or only a “directory” one. If a mandatory obligation is disobeyed, the violating law will be declared invalid. Violating a directory obligation carries a less drastic consequence. The mandatory vs. directory issue came up because of a court case which was, at the time, awaiting the Supreme Court of Canada’s decision. In the case of Bilodeau v. Attorney General of Manitoba, Manitoba’s 1970 Highway Traffic Act and The Summary Convictions Act were under challenge because they were enacted in English only. The Manitoba Court of Appeal had ruled that, while these two laws did violate s.23 of the Manitoba Act, they were valid because s.23 was only “directory” and not “mandatory”. [16]

The Supreme Court ruled that s.23 was mandatory, for several reasons. It looked at grammatical meaning, intended textual meaning, desired effect, and the impact of using directory vs. mandatory distinctions in constitutional interpretation.

The Court established that s.23 of the Manitoba Act and s.133 of the Constitution Act, 1867 were “coterminous” – comparable, similar. In the decision, what they said about one section applied to the other. [17] Because of this, the Court looked at both to decide whether s.23 is a mandatory or directory requirement. Drawing on the Interpretation Act, 1970, the Court determined that the word “shall” (in French, “seront” or “sera obligatoire”) indicated a mandatory requirement, in contrast to the permissive word “may”. [18] Both sections used “shall” when referring to the bilingual legislation requirement.

Next, the Court ruled that the s.23 was created to guarantee access for French and English speakers to their legislature, laws, and courts. [19] This guarantee must indicate a mandatory obligation, to be meaningful.

The Supreme Court then moved, more generally, onto the doctrine of mandatory vs. directory obligations. Montreal Street Railway Co. v. Normandin, often the point of reference for the mandatory vs. directory doctrine, describes the application of “directory” obligations as being to prevent “serious general inconvenience or injustice.” [20] The standard for applying this doctrine is vague and asks judges to look at consequences in order to interpret whether a rule is mandatory or directory.

Constitutional supremacy is at the heart of our legal system. It holds that our Constitution is separate from and above other laws. Unlike statutes, the Supreme Court held that interpretation of the Constitution should not be shaped by the use of a doctrine which is applied for the sake of expediency. As such, it ruled that the mandatory-directory doctrine is not to be applied when the constitutionality of a law is at issue. The Constitution is assumed to be mandatory. [21]

Questions #2 and #3

The Supreme Court Gets “Meta”: Defining its own Role

The SCC ruled that Section 23 of the Manitoba Act establishes a mandatory duty on the Government of Manitoba. [22] Essentially, all legislation must be bilingual in form in order to be constitutional. What is the consequence for laws that don’t comply with this obligation?

In beginning to answer reference questions 2 and 3, whether unilingual laws would all be struck down, the Supreme Court first reviewed to the role of the judiciary.

Canada is a country governed by constitutional supremacy, which limits the ways in which branches of government can act. Government action is granted legitimacy by virtue of a constitutional mandate. The Supreme Court pointed out that, at least in part, this is meant to protect minorities from tyranny of the majority. [23] It is the judiciary’s role to protect constitutional supremacy, the “supreme law” of Canada. Judges fulfil this duty by being “unsuffering of laws inconsistent with it.” [24] This is termed the invalidity doctrine. The Supreme Court described precedent for the invalidity doctrine, from the Colonial Laws Validity Act, 1865 to s.52 of the Constitution Act, 1982.  [25]

The Court also pointed to past cases where failure to enact, print, or publish legislation in both official languages has meant the invalidation of that legislation: Société Asbestos Ltée v. Société nationale de l’amianteProcureur générale du Québec v. Collier; and Procureur générale du Québec v. Brunet. [26]

Yes, provincial legislation that wasn’t enacted in the format required by s.23 of the Manitoba Act (bilingually) was invalid and of no force and effect. [27] Effectively, it was erased from Manitoban law.

Coping with Anarchy: Constitutional Supremacy and the Rule of Law

The judiciary has a duty to protect constitutional supremacy, which usually aligns with its duty to preserve the rule of law.   represented a rare case where the two values were in conflict.

The result of invalidating unconstitutional laws would likely have been chaos. The Supreme Court referred to a “legal vacuum” that would have been created. [28] Among the laws that Manitoba established since 1890, it granted women suffrage and changed the number of representatives in the legislature – the composition of the current legislature would have been invalid, in effect. Courts, local governments, school boards, ministries, public officials, tribunals, and other groups would have lost legal authority to act. [29]

If this had happened, it would have destroyed the existing legal order. Nearly all existing provincial law in Manitoba would have been open to challenge. This clearly would have damaged the rule of law.

In dealing with this, the Supreme Court began by deciding that the “rule of law” was a legally enforceable constitutional principle.

In Canada, we have both a written and “unwritten” Constitution. We do have written documents that make up our Constitution. But the Court also enforces principles that do not appear as a part of the Constitution’s text. Some constitutional principles are held as implicitly a part of our Constitution, whether in the documents themselves, in the historical development of them, or in the Constitution’s use over time. [30] The Patriation Reference (1981) enforced federalism as a constitutional principle. [31] The Secession Reference (1998), decided after this ruling, articulated four constitutional principles: federalism, rule of law/constitutionalism, respect for minorities, and democracy. [32]

How did the Supreme Court present the rule of law as a constitutional principle? It began by asserting that the rule of law has two requirements. First, law is supreme: it is above government and individuals. [33] Second, law is a tool for securing social order. This means that an actual body of law has to exist, to set expectations for citizens and promote the “normative order”. [34] Rule of law, the Court affirmed, is a prerequisite of democratic society. More than that, it pointed to the preamble of both the Constitution Act, 1867 and the Constitution Act, 1982. [35]

In the Constitution Act, 1867, the preamble declares that we will have a constitution “similar in principle to that of the United Kingdom.” [36] The Court’s decision showed how the rule of law was important to constitutionalism in the United Kingdom. As well, the Constitution Act, 1982 explicitly names the rule of law in its preamble. [37] Finally, the rule of law is a necessary foundation for any constitution and must be considered a fundamental principle of it, the Court said. [38]

With the legitimacy of considering the rule of law set up, the Court considered how to enforce the legislature’s duty to comply with the Constitution but also ensure the continued rule of law in Manitoba, avoiding a legal vacuum.

Selecting a Remedy

is chiefly about what “remedy” to apply, given the need to enforce constitutional supremacy while simultaneously protecting the rule of law. A remedy is the action which a court orders in a case where a violation has been found. Often, in constitutional cases, the remedy is striking down a law or overturning a conviction. In the hearing, several potential remedies were forwarded.

The first remedy proposed that the offending laws should all be struck down and the legislature should deal with its own mess – possibly by amending the Constitution. It was ruled out. [39] The Court found that striking down all of the laws which offended the Constitution would create a great deal of uncertainty, harming the rule of law.

Arguing for the Attorney General of Manitoba, counsel posited that it should be left to the Lieutenant Governor to refuse royal assent when violations of section 23 occur. The Court had two problems with this. First, though the Lieutenant Governor has what is called a “royal prerogative” to refuse royal assent if he/she wants to, this power hasn’t been used in a long time. Second, leaving the duty to refuse royal assent to the Lieutenant Governor would make the executive responsible for guaranteeing constitutional language rights, which is the role of the court. [40]

The Court found a similar problem with another proposal. The Constitution Act, 1867, gives the federal government power to disallow any law made by the provincial government. [41] This power hasn’t been used since 1943 and would, again, pass the court’s crucial duty onto another branch of government. [42]The Court did not endorse the notion that deciding whether unilingual laws were invalid should have been up to some other branch of government.

The de facto doctrine, res judicata, and the doctrine of mistake of law were all offered as ways to prevent anarchy if the Court were to declare all unilingual laws invalid. As piecemeal solutions which would not have affected many situations, these were not given much consideration. [43]

The Court would have to fulfil its duty by declaring the offending laws invalid, it ruled. But it would be impossible for Manitoba to instantly translate, re-enact and publish ninety years of legislation. What should happen during the time that Manitoba was doing this?

In the end, the Supreme Court declared that Manitoba’s invalid laws would have temporary force and effect for a period of time during which the province was to re-enact the legislation bilingually. [44] To justify this, the Court drew on the doctrine of state necessity.

The Doctrine of State Necessity: Justifying the Remedy

Under the doctrine of state necessity, the government’s actions undertaken during a public emergency can be declared valid, even though those actions would ordinarily be illegal, if the action promotes the rule of law. The Supreme Court used precedents from four different countries to support the doctrine’s application to this case. [45]

The Supreme Court applied the doctrine of state necessity to Manitoba’s situation. It declared that, although Manitoba’s unilingual laws have always been invalid, they would have legal force during a minimal period of time where the province was expected to make its legislation bilingual. It was considered a state necessity because there would be anarchy without the laws.

Lastly, with respect to the fourth reference question, the court had to determine whether the Act created by Manitoba’s legislature, An Act Respecting the Operation of Section 23 of the Manitoba Act in Regard to Statutes, met the constitutional requirements of s.23 of the Manitoba Act.

Question #4

Constitutionality of the 1980 Law

Though its title is long, An Act Respecting the Operation of Section 23 of the Manitoba Act in Regard to Statutes (1980 Act) is quite short in that it contains only 8 sections. There was some controversy over whether the Act had been enacted in English and then translated into French or enacted bilingually. The Supreme Court said that evidence was inconclusive on this question, but that the Act would be invalid if it had been unilingually enacted.

At any rate, 5 of the 8 sections were found to be unconstitutional. Part of this had to do with Manitoba’s use of official translations as a remedy. A bill must actually come into force – be enacted – bilingually in order to fulfil the requirements of section 23. [46] As well, the English and French texts of legislation must both have official status and must be used simultaneously.

Section 4(1) says that, if legislation is unilingual, it can be translated and the translation given to the Clerk of the House. If the Speaker’s designated aid certifies it as a true translation, the translated version officially becomes a part of the unilingual bill. The Supreme Court ruled this unconstitutional on the basis of s.23 of the Manitoba Act [47] because it does not meet the requirement that a bill be enacted bilingually. The Supreme Court also ruled it unconstitutional because it usurps the Lieutenant Governor’s role, by giving the Clerk of the House the power to give the translations status as law. Only the Lieutenant Governor can give a law royal assent. [48]

Sections 2(a) and 5 of the act deal with what happens if a conflict in meaning appears between the English and French versions. In section 2(a), preference is to be given to the original version, if the law was originally enacted in only one language. Section 5 says that if there is confusion about which provision a law is referring to when it mentions legislation before 1981, it refers to the provision in the English version. Both of these were declared unconstitutional for not giving the English and French versions equal status. [49]

Inseparable from these unconstitutional provisions, sections 1, 3, and 2(b) were also declared unconstitutional. [50] So, the Supreme Court struck down sections 1 through 5 of the 1980 Act. The Supreme Court took no issue with sections 6, 7, and 8, assuming the 1980 Act was enacted bilingually. [51]

In  , the Supreme Court considered a true legal quagmire, in the end employing the doctrine of state necessity to balance the rule of law with the need to invalidate unconstitutional legislation. The Court’s decision stands as a reaffirmation of constitutional supremacy, a refusal to employ the mandatory vs. directory doctrine to the constitution, and a resurfacing point for several rules and legal doctrines.

Further Reading:

Michael Beaupré, “Judicial Review of the Legislative Process: The Case of Manitoba Language Rights”Canadian Parliamentary Review (1987) 10:4, online: Canadian Parliamentary Review <http://www.revparl.ca/english/issue.asp?param=123&art=750>.

Natasha Dubé, “Minority Language Rights in Canada” Centre for Constitutional Studies (August 2008).


[1] Claude Bélanger, “The Manitoba Act [1870]” The Quebec History Encyclopedia (n.d.), online: Quebec History, Marianapolis College <http://faculty.marianopolis.edu/c.belanger/quebechistory/encyclopedia/ManitobaAct.html>.

[2] Manitoba Act, SC 1870 (33 Vict), c 3.

[3] Constitution Act, 1867 (UK), 30 & 31 Vict, c 3, s 91, reprinted in RSC 1985, App II, No 5.

[4] Supra note 2.

[5] Supra note 3.

[6] Supra note 2.

[7] Ibid.

[8] Manitoba Boundaries Extension Act, RSC 1881 (44 Vict), c 14.

[9] Cornelius J. Jaenen, “The French Presence in the West, 1734-1874” The Manitoba Historical Society(1992), online: Manitoba Historical Society. <http://www.mhs.mb.ca/docs/mb_history/24/frenchpresence.shtml>.

[10] Official Language Act, RSM 1890, c 14.

[11] Raymond Hébert, Manitoba's French-Language Crisis: A Cautionary Tale (Montreal : McGill-Queen's University Press, 2004).

[12] Ibid.

[13] Ibid.

[14] An Act Respecting the Operation of Section 23 of the Manitoba Act in Regard to Statutes, RSM 1980, c 3.

[15] Re Manitoba Language Rights, [1985] 1 SCR 721 .

[16] Bilodeau v. A.G. (Man.), [1986] 1 SCR 449.

[17] Manitoba Language Reference, supra note 15 at para 131.

[18] Manitoba Language Reference, supra note 15 at paras 25-29.

[19] Manitoba Language Reference, supra note 15 at paras 30-33.

[20] Montreal Railway Co. v. Normandin, [1917] AC 170 at paras 174-175; Manitoba Language Reference, supra note 15 at para 37.

[21] Manitoba Language Reference, supra note 15 at paras 34-40.

[22] Manitoba Language Reference, supra note 15 at para 45.

[23] Manitoba Language Reference, supra note 15 at para 47.

[24] Manitoba Language Reference, supra note 15 at para 48.

[25] Manitoba Language Reference, supra note 15 at paras 49-52.

[26] Manitoba Language Reference, supra note 15 at para 53.

[27] Manitoba Language Reference, supra note 15 at para 54.

[28] Manitoba Language Reference, supra note 15 at para 55.

[29] Manitoba Language Reference, supra note 15 at paras 56, 57.

[30] Luc Tremblay, “Les Principes Constitutionnels Non Écrits“ Review of Constitutional Studies vol.17 no.1 (1 November 2012), online : Centre for Constitutional Studies.

[31] Re: Resolution to amend the Constitution, [1981] 1 SCR 75 .

[32] Reference re Secession of Quebec, [1998] 2 SCR 217.

[33] Manitoba Language Reference, supra note 15 at para 59.

[34] Manitoba Language Reference, supra note 15 at para 60.

[35] Constitution Act, 1982, being Schedule B to the Canada Act 1982(UK), 1982, c 11.

[36] Supra note 3.

[37] Supra note 34.

[38] Manitoba Language Reference, supra note 15 at para 64.

[39] Manitoba Language Reference, supra note 15 at para 68.

[40] Manitoba Language Reference, supra note 15 at para 69-70.

[41] “Constitutional Keywords: Reservation and Disallowance” Centre for Constitutional Studies (n.d.).

[42] Manitoba Language Reference, supra note 15 at para 71.

[43] Manitoba Language Reference, supra note 15 at paras 74-82.

[44] Manitoba Language Reference, supra note 15 at para 83.

[45] Manitoba Language Reference, supra note 15 at paras 86-95.

USA, pertaining to the American Civil War: Horn v. Lockhart, Texas v. White, United States v. Insurance Companies, and Baldy v. Hunter; Southern Rhodesia: dissenting opinion in Madzimbamuto v. Lardner-Burke; Pakistan: Special Reference No. 1 of 1955; Cyprus: Attorney General of the Republic v. Mustafa Ibrahim, 1964.

[46] Drawing on precedent related to s.133 of the Constitution Act, 1867, the court brought up Blaikie No.1. In this case, the court ruled that, for Quebec, bilingual printing and publication is insufficient to meet s.133.

[47] Section 4(2) and 4(3) elaborate on the process described in Section 4(1), so the Supreme Court ruled them unconstitutional as well. Section 4(2) describes how the Clerk should express that a certified translation has been presented to him and section 4(3) makes arrangements for the Deputy Speaker to act for the Speaker if he is not available.

[48] Manitoba Language Reference, supra note 15 at paras 131-136.

[49] Manitoba Language Reference, supra note 15 at paras 140-141.

[50] Section 1 just defines “official language” as English or French. It is meaningless outside of the context of the bill. Section 3 deals with administrative needs arising from section 2. The Supreme Court ruled that it could not be severed from section 2(a). Section 2(b) says that if the bill was printed in both languages when it was first distributed, conflicts of meaning between languages should be resolved by the spirit and intent of the legislation. The court did not take issue with this, except in relation to section 2(a).

[51] Section 6 assigns the bill a chapter number in Manitoba’s list of statutes. Section 7 repeals the 1890Official Language Act, which made English the only official language of Manitoba. Section 8 says that the Act will come into force when it gets royal assent.

The "Khadr Resolution" & the Conservative Party convention, 2011

During the lead-up to the 2011 Conservative Party convention in Ottawa, media attention turned to a proposal termed by some as the “Khadr Resolution”.[1] The resolution was inspired by the case of Omar Khadr, a young Canadian citizen who fought alongside the Taliban in Afghanistan in 2002, while Canada was engaged in combat against the Taliban.[2] The case was controversial because it pitted the Canadian government's duty to protect citizens' Charter rights against its interest in punishing what might amount to treason.[3]

If the Khadr Resolution had been successful, the Conservative Party would have sought to allow the revocation of Canadian citizenship as punishment for those convicted of treason. This would have required an amendment to the Criminal Code.[4] Members voted to defeat the resolution. This proposal raises questions regarding the appropriate limits for government action in redefining citizenship. Does the government violate a constitutional right when it arbitrarily changes the rules of citizenship acquisition or revocation?   The answer to this question is unclear, since the Canadian Charter of Rights and Freedoms does not contain an explicit right to citizenship. Some might fear that the government will be allowed to sidestep its duty to protect citizens' Charter rights under sections 3, 6, & 23 simply taking a person's citizenship away through the enactment of legislation. In other words, when the government simply enacts legislation that revokes people’s citizenship, people will automatically lose the Charter rights that specifically protect them as citizens. If the Khadr Resolution had been agreed to, there are many ways in which it would likely have been challenged: i)        based on the argument that the Charter contains a right to citizenship; or, ii) based on the argument that the arbitrary removal of an individual's Canadian citizenship to constitute a violation of that individual's “security of the person”.[5]

[1]    See Steven Chase, “Conservatives reject proposal to strip citizenship of anyone fighting against Canada”, Globe and Mail (11 June 2011). [2]    “Indepth: Khadr”, CBC News Online (30 October, 2006). [3]  See Canada (Prime Minister) v Khadr, 2010 SCC 3, [2010] 1 SCR 44. [4]    Criminal Code, RSC 1985, c C-46, s 46. [5]    This would be based on the idea that the proposed amendment might have violated section 7 of the Charter; that is, “the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice”.

Language Rights in Alberta — R. v. Caron

On December 4, 2003, Gilles Caron was charged with making an unsafe left turn. While paying the traffic ticket would have cost him well under $100, Caron sought to challenge the ticket on the basis that the legislation authorizing the traffic ticket was not enacted in both English and French, and so infringed his language rights.[1] Caron beat the charge [2] in one of the longest running cases in Alberta court history. His case has also addressed important supplemental issues such as the determination of entitlement to interim cost awards to help pay for legal expenses, an issue of importance to Caron after the federal government scrapped the Court Challenges Program that been supporting his court costs. This case brief offers a glimpse into the various court appearances by Mr. Caron, beginning with his first appearance in court in 2006, and ending in the recent Alberta appeal court decision on costs, discussed elsewhere by my colleague Alex Bailey.[3] Of particular importance in the constitutional context is the 2008 Alberta provincial court decision, which dives into the historical context surrounding Caron’s language rights claim. The result of the case could have a long lasting impact on how legislation in drafted in Alberta.

First visit to the Provincial Court  2006 ABPC 278[4]

On December 9, 2003, Caron sent a letter to the provincial court requesting to have his trial in French. He also plead that his traffic ticket was constitutionally invalid as it was not in both official languages.[5] A number of interactions between the court, the Crown prosecutor initially involved in the case (Mr. Kennedy), and Caron’s lawyer (Mr. Beaudais) took place between 2004 and 2006, yet it was only on February 13, 2006 (16 days before the trial started) that Theresa Haykowsky was named the Crown’s lawyer.[6] Because she was involved in another case at the time, many requests were made for adjournments. Notably, Mr. Kennedy was fully bilingual and there was much debate as to why the Crown needed to hire an outside lawyer at all to represent the Crown.[7] The outcomes sought by Caron in his case were as follows: an award of costs (under the authority of section 24(1) of the Charter of Rights and Freedoms) for the denial of his rights under the Charter’s sections 11(b) and 11(d),[8] as well as an award of interim costs to help cover Caron’s onerous legal fees.[9] Regarding the award of costs, Justice Wenden, the provincial court judge involved in the case, ordered the Crown to pay Caron’s legal fees, as well as to pay for the expenses of the expert witnesses for the continuation of the trial. This amounted to $15,949.65.[10] Regarding the award of interim costs, Justice Wenden decided that they should not be awarded in a quasi-criminal case like the one at hand, and so Caron’s request was rejected.[11]

Issue of costs gains importance — 2007 ABQB 262[12]

In April 2007, three issues from the provincial court case were considered on appeal in the Court of Queen’s Bench: a) the order of costs ($15,949.65) against the Crown, b) the dismissal of Caron’s request for interim costs, and c) an appeal by the Crown of the costs awarded by the provincial court under section 24(1) of theCharter.[13]

Justice Marceau found that the Crown had indeed delayed the trial, which is contrary to section 11(d) of theCharter. However, the legal standard relevant to the case being “correctness,”and in the absence of a clear, palpable, and overriding error on the part of the lower court judge, the award of costs against the Crown was not interfered with on appeal.[14] As for the second issue of interim costs, Justice Marceau found that the provincial court did not have jurisdiction to make an order relating to interim costs, and he left for “another day the question as to whether a party in proceedings before the Provincial Court might bring an application or have the matter referred to the Court of Queen’s Bench.”[15] In the end, the first issue was dismissed, the second issue was dismissed for lack of jurisdiction, and the third issue was allowed. The third issue became the subject of further litigation.[16]

Costs continue to be at issue  2007 ABQB 632[17]

On October 22, 2007, Justice Ouellette presided over Caron’s request of an order for interim costs. Caron’s argument was that “public interest issues” were at stake, and so he should receive government funding as a remedy for his inability to cover his own courts costs.[18] Caron argued that he would pass the “Okanagan” test for an award of interim costs laid out by the Supreme Court of Canada in British Columbia (Minister of Forests) v. Okanagan Indian Band[19] In the end, Justice Ouellette ordered that approximately $94,000 be granted to Caron to pay for his interim court costs, and costs associated with expert witnesses.[20]

Appealing the interim cost award  2008 ABCA 111[21]

Justice Keith Ritter of the Alberta Court of Appeal declined to stay the interim funding award when it was appealed by the Crown. The Crown had not agreed with Justice Ouellette’s award of approximately $94,000 for Caron’s legal costs, and asked the court to stay the funding order pursuant to the Supreme Court’s decision in Okanagan.[22] Caron had been able to obtain, in total, over $300,000 in a series of cost orders, but they had all been set aside by Justice Marceau in 2007. This is why Caron applied for the interim funding order at issue here.[23] In siding with Caron, Justice Ritter looked at the test for a stay pending appeal, originating in RJR-MacDonald Inc. v. Canada (A.G.).[24]

Language rights and crucial historical evidence — 2008 ABPC 232[25]

In order to defend himself against his traffic violation, Caron provided notice to the Alberta Crown of his constitutional argument that because the law authorizing his ticket had not been translated into French, his constitutional rights had been violated. Caron sought four important remedies in light of his constitutional challenge:
  1. A declaration stating that Alberta’s Languages Act[26] was constitutionally invalid because it clashes with article 110 of the North-West Territories Act,[27] in place at the time the province was created. Because the Languages Act clashes with provisions of the Constitution, it should be invalidated under the authority of section 52(1) of the Constitution Act, 1982;
  2. As a remedy, an order that the accusations against him be struck from the court record on the authority of section 24(1) of the Charter;
  3. A declaration, based on section 52 of the Constitution Act, 1982, that Alberta’s provincial legislature should adopt and translate into French all of its laws and legislations, starting with those required by Caron for his trial.
  4. A declaration based on section 52 of the Constitution Act, 1982 that everyone has a constitutional right to a trial in French anywhere in Alberta.[28]
The trial, which started in March 2006, featured eight experts testifying over 89 days, and included four citizens who testified to the hardships of living in French in the province of Alberta.[29] Over 9000 pages of transcription and 93 pieces of evidence were used over the course of the trial. It is important to note that the trial was held entirely in French, with the exception of some interveners who were unilingual, and their testimony was translated in real-time in French.[30] The Crown was adamant that this trial not turn into an examination of historical evidence, as it felt this had been previously achieved in cases such as R v. Paquette[31] and R v. Mercure.[32] Mercure looked at section 110 of the NWT Act, which provides that “either the English or the French language may be used by any person in the debates of the Legislative Assembly of the Territories and in the proceedings before the courts; … and all ordinances made under the Act shall be printed in both those languages.” After a review of the case law as well as statutory obligations, it was deemed that Alberta was not constitutionally obligated to enact laws in both official languages.[33] Following the verdict in Mercure, Alberta passed the Languages Act in 1988 to repeal the statutory requirement in theNWT Act and declare its English-only laws retroactively valid.

The crux of the Caron argument during this trial focused on expert evidence showing that “people of what is now Alberta only agreed to join Confederation if French language rights were protected.”[34] University of Alberta Campus Saint-Jean professor Edmond Aunger showed that over 75 percent of the western Canadian population spoke French in the 1800s, and that they also enjoyed an “official, recognized right” to use French in courts prior to the creation of the Northwest Territories in 1870.[35] Aunger went on to add that a provision was added in the NWT Act in 1877 to ensure that such rights would be adopted, and it carried over to Alberta when it was created in 1905. These rights were never respected.[36] In other words, the historical argument can be articulated as follows: “When the transfer of Rupert’s Land from the Hudson’s Bay Company to the Government of Canada was negotiated by Riel, it included the entire North West Territories and not only the Red River Colony.”[37]

Some examples of injustice towards Francophones in the province were discussed during the course of the trial. Leo Piquette, a former MLA for Athabasca-Lac La Biche, recounted the events surrounding the prohibition on him asking a question in French during question period in the Alberta legislature in the mid-1980s.[38] Another expert witness for the defence, Professor Dennis, who holds a doctorate in sociology, also testified about questions of cultural and social disadvantages of Francophones in Alberta.[39] Expert evidence, whether from academics or frontline people, is crucial in these types of cases. As stated by Nova Scotia judge Scanlon in R v. Marshall:[40] “the courts are very much dependant on the work of historians and anthropologists and the materials presented to the court by experts working in those areas.”[41]

Crucial to Caron’s case was a December 6, 1869 governor general proclamation, deemed by Caron to be a constitutional document guaranteeing linguistic rights.[42] As discussed earlier when talking about Aunger’s expert testimony, the defence’s main focus in the case was on the years 1846-77, with the argument that French was used in tribunals and the Assiniboia district council meetings for many years prior to the transfer of Rupert’s Land.[43] Three important events were held to have taken place prior to this land transfer, and Caron considered them important in order to show the extent of the use of French before the land transfer date: 1) documents (mémoires) exchanged between Métis Francophones and “half-breed” Anglophones in 1846, 2) the Sayer trial in 1849 and finally, 3) the use of French by the government of Assiniboia.[44] The importance of the Sayer trial was also much contested between the parties. The defence viewed it as an important case dealing with the use of French, while the Crown and many experts only viewed it in the context of fair trade.[45] Justice Wenden also decided to accept evidence that French was an official language of the Assiniboia council, and was widely used in tribunals there at the time.[46]

The Métis in Rupert’s Land organized a convention in December 1869, where a first list of rights was drafted, including linguistic rights. Among these rights was the declaration that “the English and French languages are common in the Legislature and the Courts, and that all public documents and Acts of the Legislature be published in both languages,” as well as that “the Judge of the Supreme Court speak the English and French languages.”[47] A second Métis convention was organized in Fort Garry in 1870, with the main objective being to draft a constitution. Professor Aunger suggested the list of rights was discussed at this convention, with the goal of assuring the status of French as an official language in the West. According to Aunger official bilingualism was solidified in Manitoba by section 23 of the Manitoba Act,[48] and that this extended to the North-West Territories, as the latter territories had the same governor as Manitoba.[49] Defence counsel stressed the importance of not only examining how established the Métis were in Manitoba, but also in the rest of the country. For example, many Métis were established in Rupert’s Land and the North-West Territories prior to 1870, and some were also employed by the Hudson’s Bay Company and spoke French in the course of employment. They also acted as interpreters with First Nations peoples.[50]

When the province of Manitoba was created, two administrations were needed but the defence alleged that in practice the two were the same, and that this ensured that bilingualism would continue in both Manitoba and the North-West Territories. Defence argued that this thesis is supported by a) relevant sections of theManitoba Act, b) the administrative structure of the North-West Territories, c) the membership of the North-West Territories council and d) the politics of the council.[51] The resistance of the Métis in 1869-70 was the result of a miscommunication between people in power and the Métis concerning their rights. The need for a constitutional guarantee regarding linguistic rights was a priority, as a simple political guarantee would not have been enough. The Métis wanted to make sure linguistic rights would be entrenched for future generations.[52]

Going back to the outcome of Caron’s case, Justice Wenden found that the law was clear that when it came to declarations stemming from section 52(1) of the Constitution Act, 1982, prior case law shows that “there is no inherent jurisdiction in the provincial court to issue general declarations of invalidity.”[53] Justice Wenden further concluded that he did, however, have the competence to give a limited declaration that the Traffic Safety Act[54] is invalid with respect to the portions of the Act authorizing Caron’s traffic ticket, as well as parts of the Use of Highways and Rules of the Road Regulation.[55] Because Justice Wenden was convinced by the constitutional arguments raised before the provincial court, Mr. Caron was found not guilty.[56]

Court of Appeal awards costs — 2009 ABCA 34[57]

My colleague Alex Bailey discusses the Court of Appeal’s decision here in greater detail. The appeal concerned two interim funding orders granted by the Court of Queen’s Bench regarding expert witnesses and legal fees.[58] Specifically, this decision has to do with the period of time in which Court Challenges Program funding was not available, leaving Caron to rely on funding orders granted by the courts.

Natasha Dubé (March 26, 2009)
Further Readings:

Natasha Dubé, “The Infamous $54 Traffic Ticket” Centre for Constitutional Studies (7 July 2008)

Natasha Dubé, “Minority Language Rights in Canada” Centre for Constitutional Studies (August 2008)


[2] In R  c. Caron, 2008 ABPC 232, Justice Wenden ruled in favour of Caron’s language rights claim, and dismissed the traffic offence.
[3] Alex Bailey, “Alberta Court of Appeal Awards Costs in Caron Case” Centre for Constitutional Studies (7 February 2009).
[4]R  c. Caron, 2006 ABPC 278.
[5] Ibid. at para. 1.
[6] Ibid.
[7] Ibid. at para. 40. This case also addressed the importance of Caron’s case, and that since it was a quasi-criminal matter, the justice minister should ”have assured himself that this case was managed by a prosecutor experienced in criminal law more than in constitutional law.” Ibid at para. 100.
[8]Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to theCanada Act 1982 (U.K.), 1982, c. 11 .
[9] Supra note 4 at para. 1.
[10] Ibid. at para. 126.
[11] Ibid. at para. 159.
[12]R v. Caron, 2007 ABQB 262.
[13] Ibid. at para. 1.
[14] Ibid. at para. 13.
[15] Ibid. at para. 142.
[16] Ibid. at para. 143.
[17] R v. Caron, 2007 ABQB 632
[18] Ibid. at para. 8.
[19] 2003 SCC 71 . This test was further considered in Little Sisters Book and Art Emporium v. Canada (Commissioner of Customs and Revenue), 2007 SCC 2. In should be noted that the request for interim funding considered by Justice Ouellette followed the comments of Justice Marceau who had decided that interim costs could be awarded in a quasi-criminal case in R. v. Caron, 2007 ABQB 262.
[20] Supra note 15 at para. 46. As stated earlier, my colleague Alex Bailey discusses the issue of costs in a separate article found here.
[21] R v. Caron, 2008 ABCA 111
[22] Ibid. at para. 1.
[23] Ibid. at para. 5.
[24]1994 SCC 117. The three parts of the test are: serious question to be tried, irreparable harm, and balance of convenience.
[25]Supra note 2.
[26]Languages Act, R.S.A. 2000, c. L-6.
[27] R.S.C. 1886, c. 50 .
[28] Supra. note 2 at para. 4.
[29] Ibid. at paras. 14-15.
[30] Ibid. at para. 21.
[33] Ibid.
[34] Supra note 1.
[35] Geoff McMaster, “Campus Saint-Jean Prof Debunks Myth of English Alberta” Office of the Vice President (Research), University of Alberta (8 January 2009).
[36] Ibid.
[37] La Cause Caron, “The Argument”.
[38] Supra note 2 at para. 47.
[39] Ibid. at para. 60.
[41] Ibid. at para. 16.
[42] Supra note 2 at para. 73.
[43] Ibid. at para. 77.
[44] Ibid. at paras. 80-82. The following paragraphs explain what was found in those memoires exchanged between the Métis and the Half-breeds. While it is not important for this case brief to discuss all the intricate details found in them, it is important to note that at least one of the expert witnesses of the province feels these memoires have absolutely no value to the case. See ibid. at para. 106.
[45] Ibid. at para. 120.
[46] Ibid. at para. 167.
[47] Ibid. at para. 179.
[48] An Act to amend and continue the Act 32 and 33 Victoria chapter 3; and to establish and provide for the Government of the Province of Manitoba, 33 Victoria, c. 3 (Canada) .
[49] Ibid. at para. 185.
[50] Ibid. at para. 302.
[51] Ibid. at para. 324. The importance of section 23 has been examined elsewhere in the paper. Specifically, it guarantees the use of French or English in all matters that go to court, the court in question being the Supreme Court of Manitoba and the North-West Territories. See ibid. at para. 326. Section 35 also states that the Lieutenant-Governor of Manitoba is also that of the North-West Territories.
[52] Ibid. at paras. 559-560.
[53] Alberta v. K.B., 2000 ABQB 976 at paras. 565 and 568.
[55] Alta. Reg. 304/2002. Supra note 2, at para. 571.
[56] Ibid. at para. 575.
[57] R v. Caron, 2009 ABCA 34.
[58] Ibid. at para. 1.

Important Minority Language Rights Victory at the SCC

In the recent case of DesRochers v. Canada (Industry),[1]  the Supreme Court of Canada ruled unanimously against a Franco-Ontarian who requested a declaration that “the federal government failed the French-speaking minority in the North Simcoe area by offering an economic development program that did not have equal results for francophones.”[2] Raymond DesRochers, Executive Director of the Corporation de development économique communautaire (CALDECH), put forth the argument that French services offered by an Industry Canada-sponsored community future development corporation (CFDC) were not of the same level as those being offered in English. As a result, DesRochers argued, the ministry was violating language rights protected by the Charter of Rights and Freedoms and the quasi-constitutionalOfficial Languages Act.[3] At issue along with section 20(1) of the Charter[4] was section 22 of the Official Languages Act,[5] which states that:

22. Every federal institution has the duty to ensure that any member of the public can communicate with and obtain available services from its head or central office in either official language, and has the same duty with respect to any of its other offices or facilities
a) within the National Capital Region; or
b) in Canada or elsewhere, where there is significant demand for communications with and services from that office or facility in that language.

Supreme Court Justice Louise Charron agreed with the Federal Court of Appeal that Industry Canada was constitutionally obliged to provide services in French in the relevant region of Ontario, thus taking into account the needs of the minority Francophone community. However, because Industry Canada had already redressed the inadequate provision of French-language services by the CFDC, no remedy was required of Industry Canada other than costs.

Justice Charron did not approve of the lower court’s “narrow view of linguistic equality” in assessing whether the CFDC had meet its constitutional duty to provide minority language services, stating instead that “depending on the nature of the service in question, it is possible that substantive equality will not result from the development and implementation of identical services for each language community.”[6] Heenan Blaikie lawyer Ronald Caza believes this ruling will have an impact on all departments and agencies of the federal government, and will allow minority communities to better function in their own language and slow down the assimilation process.[7]

[2] Janice Tibbetts, Supreme Court Rejects Program Inequality Claim, The Vancouver Sun (5 February 2009).
[3] Radio-Canada, “Importante Victoire en Cour Suprême” (5 February 2009).
[4] Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11.
[6] Supra note 1 at 51.
[7] Supra note 3.

Alberta Court of Appeal Awards Costs in Caron Case

On January 30, 2009, in R. v. Caron,[1] the Alberta Court of Appeal affirmed the Court of Queen’s Bench decision to award costs to Gilles Caron for the legal fees he incurred in preparing his defence to an alleged violation of section 34(2) of the Use of Highway and Rules of the Road Regulation.[2] Caron did not dispute that he failed to make a left hand turn safely. He argued instead that the ticket was invalid because it was not in French.[3]

To help pay for his court costs, Caron applied to the Provincial Court judge for an interim cost order on the basis of the test developed in the Supreme Court case British Columbia (Minister of Forests) v. Okanagan Indian Band.[4] On November 6, 2006, the order was granted but set aside on appeal at the Court of Queen’s Bench, where the judge held that the Provincial Court judge lacked jurisdiction to grant Okanagancosts orders.[5] Thereafter, Caron successfully applied to the Court of Queen’s Bench for a funding order according to Okanagan.[6] The Court of Queen’s Bench judge directed the Crown to pay for Caron’s counsel and expert witnesses on May 16, 2007. On October 19, 2007, the same judge awarded Caron costs of $91,046.29 plus GST, representing the remainder of Caron’s legal fees for the trial. On July 2, 2008, the trial judge handed down his decision on the traffic infraction, stating that Caron’s language rights had been violated. Caron was granted the relief he sought.[7]

The issues on appeal at the Alberta Court of Appeal were:[8]

1. Are Okanagan interim costs available in quasi-criminal litigation?
2. Does the Court of Queen’s Bench have inherent equitable jurisdiction to award Okanagan interim costs for the purposes of a Provincial Court summary conviction proceeding?
3. Was the test set out in Okanagan properly applied in this case?

Issue 1: Are Okanagan interim costs available in quasi-criminal litigation?

In the criminal context an accused person enjoys the right to counsel.[9] Occasionally that right entails having counsel provided at government expense. In order for that to occur, the offence must be serious and complex. This principle arose from the case R. v. Rowbotham.[10] In Alberta, it was decided in R. v. Rain[11]that government funding may additionally require that the accused’s liberty be at stake. The same principles apply in the quasi-criminal setting.[12] The charge against Caron was neither complicated nor serious; therefore, he could not be awarded costs under either Rowbotham or Rain.[13]

In the civil context, advance costs are available to those who meet the test laid out in Okanagan:[14]

1. The party seeking interim costs genuinely cannot afford to pay for the litigation, and no other realistic option exists for bringing the issues to trial – in short, the litigation would be unable to proceed if the order were not made.

2. The claim to be adjudicated is prima facie meritorious; that is, the claim is at least of sufficient merit that it is contrary to the interests of justice for the opportunity to pursue the case to be forfeited just because the litigant lacks financial means.

3. The issues raised transcend the individual interests of the particular litigant, are of public importance, and have not been resolved in previous cases.

4. In the 2007 case Little Sisters Book and Art Emporium v. Canada (Commissioner of Customs and Revenue),[15] the Court added a fourth component to the test, emphasizing that only in exceptional circumstances should advance costs be granted.

In R. v. Caron, the Crown argued that no cost award should have been made because Caron should have raised the constitutional challenge by filing a civil notice of motion instead of challenging Alberta’s Languages Act[16]in a quasi-criminal context.[17] The Crown submitted that Caron should not receive the protection of criminal processes and simultaneously be allowed access to rights which are restricted to civil processes. The Court of Appeal found that where the constitutional issue is clear from the start, there is little difference between a constitutional challenge in the quasi-criminal sphere and one brought via strictly civil litigation.[18]The appeals court concluded that “in principle, an Okanagan order may be available with respect to quasi-criminal proceedings when the real issue is not the guilt or innocence of the accused, but rather a constitutional question of public importance.”[19]

Issue 2: Does the Court of Queen’s Bench have inherent equitable jurisdiction to award Okanagan interim costs for the purposes of a Provincial Court summary?

The Court of Appeal concluded that in Okanagan the Supreme Court established the right to costs; however, that right is not capable of being enforced in the Provincial Court. On the authority of Board v. Board,[20] the right must therefore be enforceable by the Alberta superior court if there is no other avenue of enforcement.[21] There is a presumption that where a right exists, there is a court with the power to enforce it.

Issue 3: Was the test set out in Okanagan properly applied in this case?

The Court of Appeal found that the Okanagan test had been satisfied.[22] The Crown argued that several errors had made in the application of the test by the Queen’s Bench judge. First, the Crown suggested that reliance on the argument of an imbalance of resources between the Crown and the defendant was inappropriate.[23] The Court of Appeal, however, pointed out that the Okanagan test implies that there must be an imbalance of resources before such an order is made.[24] Additionally, the appeals court said that this principle is an important one because a gross imbalance of resources in a constitutional case may lead to the possibility of future arguments that the case was not fully litigated.[25] It is always in the interest of the government to fully resolve constitutional issues.

Another important argument made by the Crown was that the Provincial Court’s jurisdiction limits the scope of any order, meaning that the order granted affects only Caron’s personal rights and not those of Albertans in general.[26] This makes Okanagan funding inapplicable. The Court of Appeal pointed out, however, that the case law demonstrates that quasi-criminal litigation has often established important constitutional principles that have precedential value for all Canadian citizens.[27] Caron admitted the facts underlying the traffic ticket, making “everyone well aware that this was constitutional litigation.”[28]

The Court of Appeal did note, however, that the Queen’s Bench judge failed to address the second requirement of the first Okanagan criteria.[29] The defendant had to show that he could not pay for the litigation and that there was no other realistic way that the issue could come to trial. The Court of Appeal found that omitting to show that no other realistic way exists would not affect the outcome of the appeal.[30] The Supreme Court of Canada must have meant that if there is an alternative means of proceeding with respect to the charge that is laid, the litigant might not be entitled to Okanagan costs.[31] The Court of Appeal judge stated that if Caron had been able to mount a complicated language challenge on his own, this might have been considered a realistic alternative for the issue to come to trial.[32] As it stands, the Court of Appeal judge did not find any other realistic way for the issue to come to trial.

Finally, the Queen’s Bench judge disagreed with the Crown that Caron had not gone to exhaustive efforts to obtain funding.[33] The Court of Appeal found no legal error in this determination, stating that “the applicant does not need to show that it checked with absolutely every person, organization, or institution that might be remotely interested in the question. It is sufficient if the applicant sought funding from the primary players interested in the constitutional question before the court.”[34]

February 7, 2009 - Alex Bailey


[1] R. v. Caron, 2009 ABCA 34.
[2] Alta. Reg. 304/2002.
[3] Supra note 1 at para. 1.
[5] Supra note 1 at para. 3.
[6] Ibid. at para. 4.
[7] Ibid. at para. 5.
[8] Ibid. at para. 6.
[9] Ibid. at para. 13.
[12] Supra note 1 at para. 15.
[13] Ibid. at para. 16.
[14] Supra note 4 at para. 40.
[15] 2007 SCC 2 at para. 37.
[16] R.S.A. 2000, c. L-6.
[17] Supra note 1 at para. 20.
[18] Ibid. at para. 23.
[19] Ibid. at para. 24.
[20] [1919] AC 956.
[21] Supra note 1 at paras. 46-47.
[22] Ibid. at paras. 50-53, 65.
[23] Ibid. at para. 55.
[24] Ibid.
[25] Ibid. at para. 56.
[26] Ibid. at para. 59.
[27] Ibid.
[28] Ibid. at para. 60.
[29] Ibid. at para. 62.
[30] Ibid.
[31] Ibid.
[32] Ibid.
[33] Ibid. at para. 64.
[34] Ibid.

Minority Language Rights in Canada

The importance of language rights is grounded in the essential role that language plays in human existence, development and dignity. It is through language that we are able to form concepts; to structure and order the world around us. Language bridges the gap between isolation and community, allowing humans to delineate the rights and duties they hold in respect of one another, and thus to live in society.[1]

The issue of language rights for Canada’s minority language communities is not new. From requesting access to police and government services in their own language, to assuming control of their schools, Canada’s linguistic minorities have historically been very vocal. This paper focuses on the situation of Francophones living outside of Québec. In an era where assimilation is threatening the survival of Canada’s other official language in many parts of the country, it is crucial to find ways to counterbalance this threat. Some attention will also be paid to problems facing Anglophones in Québec, although a comprehensive look at this language issue is beyond the scope of this analysis.

This paper provides a brief introduction to the Acts and Regulations governing language rights in Canada, while specifically addressing case law and examples showing the current state of minority language rights in Canada. Education will be given the major share of space, as it is the “most explosive issue dividing French and English Canadians.”[2] This analysis will conclude with a discussion of access to a wide variety of services, such as police, government, and judicial rights in one’s own language.

Importance of Language Rights in Canada

Even though Francophones are a small minority in most provinces, and Anglophones are a minority in Québec, both groups are given constitutional rights that limit the ability of provinces to impose linguistic uniformity.[3]

Bilingualism used to be omnipresent in the country but in 1792, when the colony was divided into Upper and Lower Canada, it was abolished in the former. In 1839, official unilingualism was proclaimed. The fatal blow came in 1840, when Lord Durham abolished the use of French upon the union of Upper and Lower Canada.[4]

Language rights have not always been granted the same protection they currently enjoy. This stems from the interpretation the courts have given them. In Société des Acadiens v. Association des Parents,[5] the notion of “political compromise” was advanced by Justice Beetz. This was a contrast to other legal rights, which were “seminal in nature because they are rooted in principal.”[6] Canada only began to seriously address the issue of national identity in the 1960s, with the start of the Royal Commission on Bilingualism and Biculturalism,[7] which reported that “relations between English and French Canadians had deteriorated to a point where the two groups’ will to live together was in jeopardy.”[8] It is crucial, at this stage, to clarify that Canada is not a bilingual country. According to Joseph Eliot Magnet, “a bilingual state is a political subdivision where a substantial number of persons are able to speak in and be understood in two languages.”[9] Francophones in Canada have historically needed to learn English in order to receive access to some services, but the same cannot be said of Canada’s Anglophones.

The statistics are alarming: the trend is that Canada’s Francophone community outside Québec is shrinking, and has been for over a hundred years. Saskatchewan, Alberta, Newfoundland and Labrador, and British Columbia have “passed the point of no return,” as less than 1 percent of their population have French as their first language.[10] These frightening numbers are not due to migration but assimilation, especially in the three Western provinces. Alberta, Saskatchewan, and British Columbia have seen their Francophone populations decline by over 50 percent because of this.[11] Saskatchewan offers an interesting case study: its population is getting older, the rate of assimilation is the highest in Canada, and only 39 percent of parents are transferring French to their children.[12] Alberta has significant concentrations of Francophones, mainly located in Northern Alberta.[13] According to the latest census, Edmonton has 14,430 citizens whose first language is French.[14] This is a significant percentage of the total number of French first language speakers in Alberta, which totals 61,225.[15] The problem becomes apparent when Francophone Edmontonians were asked which language is the one spoken most often at home and at work: only 5,350 answered “French.” The numbers are very similar in Alberta’s other major city, Calgary.[16] Nevertheless, over 75 percent of Francophones found outside of Québec are living in New Brunswick and Ontario.[17]

Laws Governing Language Rights

Language is a crucial issue in Canada, yet there is no single plenary power to enact laws regarding it.[18]Instead of having either the provincial or the federal government have jurisdiction over the issue, the power is divided between the two. Therefore, it is an “ancillary matter.” Some sections do deal with specific areas that affect language rights. For example, section 93 of the Constitution Act, 1867[19] provides that “each province may exclusively make laws in relation to education, thereby making instruction at all levels, including colleges and universities, a provincial responsibility.”[20]

Section 133 of the Constitution Act, 1867 has been hotly debated in the last hundred years, especially as to whether it applied to all parts of Canada. The section states that:

Either the English or French Language may be used by any Person in the Debates of the Houses of Parliament of Canada and of the House of the Legislatures of Québec; and both those Languages shall be used in the respective Records and Journals of those Houses; and either of those Languages may be used by any Person in any Pleading or Process issuing from any Court of Canada established under this Act, and in or from all or any of the Courts of Québec.[21]

This exact provision has since been duplicated in a number of provincial laws, including section 23 of theManitoba Act,[22]and section 110 of the North-West Territories Act,[23] which Alberta and Saskatchewan have had to comply with. Nevertheless, the fact remains that these language rights were not entrenched, and both provinces have repeatedly attempted to circumvent them by legislation.[24] In Manitoba (A.G.) v. Forest,[25] the Court found that the province’s attempt to repeal section 23’s bilingualism requirement, in 1890, was unconstitutional.[26] That year, Manitoba sought to eliminate the language rights promised to its citizens by enacting An Act to Provide that the English Language shall be the Official Language of the Province of Manitoba.[27]

The Official Languages Act[28] is the law regulating bilingualism in the federal public service, an issue that will be dealt with in greater detail in the final section of this analysis. It is authorized as ancillary to the federal power to make laws for the peace, order, and good government (POGG) of Canada.[29] Pursuant to section 92(14) of the Constitution Act 1867, provinces are also empowered to enact laws respecting the administration of justice. In Jones v. New Brunswick,[30] the Supreme Court decided that when the is no competent federal legislation dealing with linguistic rights in court proceedings, a provincial legislature can legislate the use of the two official languages in its provincial court.[31] Section 101 of the Constitution Act, 1867 provides that both official languages are to be used in the federal courts. Finally, the federal government can legislate in respect to criminal procedure, a power ancillary to section 91(27) of the Constitution Act, 1867.[32]

The Canadian Charter of Rights and Freedoms[33]

Language rights in the Charter are divided into two main sections: official languages of Canada and minority language education rights. The relevant sections of the Charter are as follows:

Section 16.

  1. English and French are the official languages of Canada and have equality of status and equal rights and privileges as to their use in all institutions of the Parliament and government of Canada.
  2. English and French are the official languages of New Brunswick and have equality of status and equal rights and privileges as to their use in all institutions of the legislature and government of New Brunswick.
  3. Nothing in this Charter limits the authority of Parliament or a legislature to advance the equality of status or use of English and French.

Section 16.1.

  1. The English linguistic community and the French linguistic community in New Brunswick have equality of status and equal rights and privileges, including the right to distinct educational institutions and such distinct cultural institutions as are necessary for the preservation and promotion of those communities.
  2. The role of the legislature and government of New Brunswick to preserve and promote the status, rights and privileges referred to in subsection (1) is affirmed.

Section 17.

  1. Everyone has the right to use English or French in any debates and other proceedings of Parliament.
  2. Everyone has the right to use English or French in any debates and other proceedings of the legislature of New Brunswick.

Section 18.

  1. The statutes, records and journals of Parliament shall be printed and published in English and French and both language versions are equally authoritative.
  2. The statutes, records and journals of the legislature of New Brunswick shall be printed and published in English and French and both language versions are equally authoritative.

Section 19.

  1. Either English or French may be used by any person in, or in any pleading in or process issuing from, any court established by Parliament.
  2. Either English or French may be used by any person in, or in any pleading in or process issuing from, any court of New Brunswick.

Section 20.

  1. Any member of the public in Canada has the right to communicate with, and to receive available services from, any head or central office of an institution of the Parliament or government of Canada in English or French, and has the same right with respect to any other office of any such institution where
    • a) there is a significant demand for communications with and services from that office in such language; or
    • b) due to the nature of the office, it is reasonable that communications with and services from that office be available in both English and French.
  2. Any member of the public in New Brunswick has the right to communicate with, and to receive available services from, any office of an institution of the legislature or government of New Brunswick in English or French.

Section 21. 
Nothing in sections 16 to 20 abrogates or derogates from any right, privilege or obligation with respect to the English and French languages, or either of them, that exists or is continued by virtue of any other provision of the Constitution of Canada.

Section 22.
Nothing in sections 16 to 20 abrogates or derogates from any legal or customary right or privilege acquired or enjoyed either before or after the coming into force of this Charter with respect to any language that is not English or French.

Section 23.

  1. Citizens of Canada
    • a) whose first language learned and still understood is that of the English or French linguistic minority population of the province in which they reside, or
    • b) who have received their primary school instruction in Canada in English or French and reside in a province where the language in which they received that instruction is the language of the English or French linguistic minority population of the province, have the right to have their children receive primary and secondary school instruction in that language in that province.
  2. Citizens of Canada of whom any child has received or is receiving primary or secondary school instruction in English or French in Canada, have the right to have all their children receive primary and secondary school instruction in the same language.
  3. The right of citizens of Canada under subsections (1) and (2) to have their children receive primary and secondary school instruction in the language of the English or French linguistic minority population of a province
    • a) applies wherever in the province the number of children of citizens who have such a right is sufficient to warrant the provision to them out of public funds of minority language instruction; and
    • b) Includes, where the number of those children so warrants, the right to have them receive that instruction in minority language educational facilities provided out of public funds.[34]

The Charter has been an important tool for Anglophones in Québec, and especially Francophones outside of Québec. Every word contained in sections 16-23 is crucial for the survival of the minority communities, from accessing public service in the language of one’s choice, to being able to build minority language schools in a community. Before discussing section 23 and the educational rights it confers on the minority language communities, a brief summary of the current situation in Québec will be presented.

Situation in Québec

In 1974, the province of Québec adopted Bill 22,[35] making French the only official language of the province. A number of references were made to the English language, to show that Québec was not against linguistic duality.[36] The bigger change came in 1981, when the Parti Québécois adopted Bill 101,[37] which offers less recognition to English than Bill 22. The 1970s were a crucial decade for Anglophones in Québec. Following the October Crisis and the election of the Parti Québécois, Anglo-Québeckers longer enjoyed the good relationship they had with the provincial government, leading to a significant exodus from the province.[38]

Education Rights

The importance of minority language education was perhaps best illustrated by Chief Justice Dickson during the Mahé trial:

Minority-language education guarantee has two purposes: first, education in one’s language provides an important way to preserve and promote the minority group’s language and culture…there is also a strong remedial component- designed to protect the French and English minorities from assimilation and to give recognition and encouragement to the two official language groups in Canada.[39]

Section 23 of the Charter deals explicitly with the right of the French or English-speaking minority to be educated in the minority language. It only provides rights for Canadian citizens. In all provinces and territories except Québec, the three eligibility criteria are 1) that the first language of the parents is French, 2) the parents had their primary education in Canada in French, and 3) the parents have a child who has received or is receiving his or her education in French in Canada. For English-speakers in Québec, they have the right to educate their children in English if 1) the parents had their primary education in Canada in English or 2) the parents have a child who has received or is receiving his or her education in English in Canada. Governments have not been constitutionally barred from stipulating criteria which must be met before these rights are protected. In Manitoba, for example, only parents who have received at least four years of instruction in a French program in Canada are entitled to have their children instructed in French.[40]

There are instances where case law will deal with equality issues, along with language rights claims. One such example from Québec is Gosselin (Tutor of) v. Québec (Attorney General),[41] where French parents demanded to send their children to an English-language school. This case is very different from others seen so far, since the parents wanted education in the OTHER official language for their children. The Court ruled that since the parents were members of the French-language majority, section 23 Charter rights did no apply, and section 15 Charter equality rights did not trump section 23 rights in this case.

The Rise of Community Schools

Minority language schools should not be considered a concession to the minority-language group: for pedagogical reasons they are the most efficient and most effective way of educating the minority.[42]

In Fredericton, New Brunswick, the idea of building Francophone community centres with Francophone schools gained momentum in the 1970s, as a way not only to fulfill the educational requirements of the Francophone minority, but to allow for the growth of the French language in Anglophone communities. École Sainte-Anne, part of the Centre Communautaire Sainte-Anne, used to be a kindergarten to grade 12 school, but due to increased enrolment, now houses 662 students from grades 6-12.[43] The Centre Communautaire Sainte-Anne was finalized in June 1978, with École Sainte-Anne following shortly after. When the Centre first opened in 1978, it included not only the school, but also a library, a daycare, a bank, and a bookstore. Over the years, many others have been added, such as a community radio and a Francophone sporting association.[44] Every Sunday, mass also took place in the auditorium of the community centre. After an absence of 242 years, a new French church made its home in Fredericton in 2001. Now, over 700 families consider Sainte-Anne-des-Pays-Bas their parish.[45]

Francophone community centres are not simply an Atlantic Canadian phenomenon; they are currently gaining momentum in the Western Provinces, especially Alberta. Currently, Francophone community centres can be found all over the province including: École Nouvelle Frontière in Grande Prairie, Centre communautaire Centralta in Legal, Centre scolaire et communautaire francophone in Plamondon, La Cité des Rocheuses in Calgary, Centre scolaire communautaire in Saint-Paul, and Centre communautaire scolaire Boréal in Fort McMurray.[46]

A Divisive Issue: Eligibility Criteria

In regards to the eligibility criteria to determine one’s Charter right to school one’s children in French,[47] the courts have yet to rule on whether it is sufficient that only one parent is entitled under section 23, but Mark Power and Pierre Foucher believe that that will be the case if this specific point is ever argued in the courts.[48]

The “where numbers warrant” term found in section 23(3) of the Charter is generally considered to be the most controversial, and there is ample case law addressing the concept. In the seminal Alberta case Mahé,[49] it was noted that the effect of subsection 3, especially paragraphs a and b, established a “sliding scale of entitlement based on the number of children whose parents qualify under s.23.”[50] In Prince Edward Island, for example, there were enough children in a local community to justify a new school but the Minister of Education refused, saying the children could take a bus to another community. The Court disagreed, noting that “section 23 is intended to fix past wrongs, preserve and promote the minority language community, and protect it from assimilation.”[51] The Supreme Court has adopted an intermediate approach to count the numbers for this question: the “number of persons who will eventually take advantage of the contemplated programme or facility.”[52] It is the parents that have the burden of proof regarding the demonstration that the numbers do warrant minority language educational services paid by the taxpayers.

The courts are progressively getting better at managing timelines associated with the construction of new schools and community centres. In a seminal Nova Scotia case, the Supreme Court decided that a judge could monitor a province’s effort to create new facilities, stating that “if the provincial government was left to build French schools on its own timetable, the French-speaking minority of Nova Scotia could be in danger of being assimilated into the English-speaking majority.”[53]

An important concept coming out of Mahé is that completely separate school boards are not necessary to fulfill section 23 requirements. The essential criterion is that “the minority language groups have control over these aspects of education which pertain to or have an effect upon their language culture.”[54] If current school boards are to be used, then:

  1. the representation of the linguistic minority on local boards or other public authorities which administer minority language instruction or facilities should be guaranteed,
  2. the number of minority language representatives on the boards should be, at a minimum, proportional to the number of minority language instruction and facilities,
  3. the minority language representatives should have exclusive authority to make decisions relating to the minority language instruction and facilities.[55]

In Alberta, the School Act[56] currently provides for Francophone Education Regions and Regional Authorities to be established, similar to school districts and school boards. It is the Regional Authority that has the responsibility to ensure that the rights of the minority are protected.[57] This system differs drastically from New Brunswick, the only bilingual province in Canada, which has a dual school system permitting the minority to exercise the right to manage all facilities and instructional programmes in its jurisdiction. Bilingual instruction has been abolished everywhere in the province, save for second language instruction in Francophone schools, and French immersion programs in Anglophone schools.[58]

Access to Services in French

The Reference re: Manitoba Language Rights case is crucial for many reasons, especially for what it says about government documents. In this case, the Court looked at whether the laws and documents of both Parliament and the Manitoba legislature must be published in French as well as English, saying that they must.[59] As mentioned earlier in this paper, the Western provinces have not always been receptive the notion of minority language rights. In R v. Mercure,[60] the government of Saskatchewan took up the Court’s suggestion to write a new bilingual statute removing all restrictions imposed by the previous language law, which abolished any requirements that documents be translated in French.[61] Father Mercure was charged with speeding, and requested three things when he appeared in Provincial Court: to 1) plead to the charge in French, 2) have a trial in French, and 3) delay the trial until there were adequate French translations of all relevant statutes.[62] Justice LaForest concluded that section 110 of the NWT Act did apply to the modern courts of Saskatchewan, that no statute purporting to remove language rights in court proceedings had been passed by the province.[63]

An even more striking example is “l’affaire Piquette” in Alberta. Piquette, an MLA for the Athabasca-Lac La Biche region, was routinely interrupted by the Speaker of the Alberta Legislative Assembly for speaking in French. The premier also rose to demand an apology from Piquette for having done so.[64] Feathers were ruffled across the country, including then Prime Minister Brian Mulroney, who was quoted as having said “can you imagine how a unilingual French-Canadian from a small town in Québec must feel watching on French TV the denial of the right to speak French in the Alberta Legislative Assembly.”[65]

Receiving court services in French has long been an important issue in Canadian jurisprudence. Four foundational principles are at the core of official minority languages in the courts:

  1. Constitutional entrenchment of minority language rights in the judicial system.
  2. Right to use minority language rights in judicial proceedings, separate and apart from the right to an interpreter or, said differently, the right to be understood.
  3. Recognition of language rights based on individual choices (personality) rather than location (territoriality).
  4. Use of non-legislative tools to promote the integration of minority languages at the institutional level of the judicial system.[66]

In 2008, important clarifications and changes were made through the adoption of Bill C-13, amending theCriminal Code[67] which clarified court-related language provisions, as well as improved Canada’s criminal procedure and sentencing. Section 530.1 of the Code excludes New Brunswick, as that province is already covered under Charter rights. Among the changes are the right to be advised by a judge to hold a trial in the official language of one’s choice in all cases, and codifying the right to obtain a translation of the indictment or information upon request.[68]

In 1999, the Supreme Court of Canada ruled that even if a person understands both French and English, they have a right to a trial in their first language, a right that has nothing to do with fundamental justice.[69] The language of the accused is part of his or her cultural identity, very personal in nature, and cannot just be tossed aside when it comes to choosing which language the proceedings will follow.[70] An important distinction to note is that the right to an interpreter is not a minority language right, unlike the right to use a minority language in the courts.[71]

The Official Languages Act of New Brunswick guarantees equal access to the courts in both official languages, whether it is the conduct of proceedings, the issuance of decisions or communications to the public.[73] Unlike its federal counterpart, the New Brunswick Act does not include an obligation for the province to provide all final judgments and decisions in both official languages, although the province has taken the responsibility to do so. In contrast, the three Western provinces have extremely low degrees of judicial bilingualism, especially in British Columbia, where the use of French in the courts is almost non-existent.[74] Alberta was the host of a long traffic ticket case over the last few years, culminating in a favourable ruling from the Provincial Court.[75] Gilles Caron, a truck driver, received a $54 ticket for an unsafe left turn. He proceeded to ask for a French hearing, but was denied under the Languages Act[76] that revoked these rights in Alberta.

Parliament launched the Court Challenges Program in 1978, with a goal to finance cases involving important constitutional issues relating to language rights and equality,[77] but federal governments made a number of changes to the program during the 1990s and more recently, and it was cancelled in 2006.[78] Nevertheless, Prime Minister Stephen Harper has since decided to restore some parts of the program. The new “Program to Support Linguistic Rights” aims to help Anglophones in Québec and Francophones in the rest of Canada to defend their language rights under the Charter. It puts more emphasis on mediation and alternative dispute resolution, but still does not fund challenges to provincial laws, unless it can be shown that provincial law violates the Charter.[79] The program will be granted a $1.5 billion budget per year, and will begin in 2009.[80]

The relationship between the courts and the Royal Canadian Mounted Police (RCMP) regarding official languages had not always been smooth.  A recent case from New Brunswick illustrates this point: Marie-Claire Paulin was issued a speeding ticket April 26, 2000 by a unilingual RCMP officer in Woodstock, New Brunswick.[81] While she paid the fine that day, Paulin later brought a declaratory action against the Crown because her right to receive police services in her native tongue of French was denied, breaching section 20(2) of the Charter. At the Federal Court level, her action was joined by the Société des Acadiens et Acadiennes du Nouveau Brunswick (SAANB), a partisan group that is not a stranger to the Supreme Court. An earlier judgment pronounced by the Federal Court held that since the RCMP was serving as a provincial police in New Brunswick, making it a “New Brunswick institution” for the purposes of section 20(2) of theCharter, the officers are required to provide police services in both French and English.[82] The respondent’s main rebuttal to the argument was that the RCMP is a federal institution, not a provincial body, and is therefore not subject to section 20(2), which only applies to New Brunswick institutions. Both the Federal Court, and the Federal Court of Appeal were in agreement that the RCMP is “at all times subject to the minimum obligations imposed on it by section 20(1) of the Charter and by federal official languages legislation, regardless of whether it is acting as the federal police force or as a provincial or municipal force under an agreement.”[83] In the end, the Supreme Court stated that as a resident of Canada’s only officially bilingual province, Mrs. Paulin had a constitutional right to receive police services in French, and that nothing the RCMP could say would trump this right.[84]

Bilingualism in the courts is not only an issue for the people commencing actions. Lawyers are also faced with the difficulty of not being able to speak their own language in front of a court. Most minority-language lawyers in the country are bilingual, and they will refrain from speaking French when a court insists on using interpreters, setting up a vicious cycle where French rarely gets used in court proceedings in some provinces, especially in Western Canada.[85]


Language is so intimately related to the form and content of expression that there cannot be true freedom of expression by means of language if one is prohibited from using the language of one’s choice. Language is not merely a means or medium of expression; it colours the content and meaning of expression.[86]   

Language rights in Canada are not all afforded the same protection. While language rights contained in sections 16-20 of the Charter are not subject to the notwithstanding clause of section 33, any breach of these rights could potentially be deemed acceptable and reasonable under section 1 of the Charter, the reason usually being “administrative inconvenience.”[87] On the other hand, one could claim there is no strongerCharter rights than those contained in section 23, which “imposes upon governments an explicitly positive obligation to act.”[88] A huge issue with minority-language education is that that if we open the doors of minority Francophone schools to children of the majority language, these schools could turn into immersion or bilingual schools, and completely negate all the positive aspects of having a homogenous language environment.[89]

The old adage that the “more things change, the more they stay the same” rings true in the context of language rights. One can look at the employment situation of a Northern New Brunswick man, for example. Instead of making the trip down to Saint John to find employment, he will be inclined to sojourn to Fort McMurray and other regions in Alberta, where English is the only language spoken.[90] While this person might be ready to fight to receive services in French, the reality is he will most likely end up following the rules of the majority instead of being categorized as a “trouble maker” championing his rights.

Nevertheless, language rights are far from obsolete. While Canada’s two official languages have not always lived peacefully side-by-side, the recent events in New Brunswick surrounding the elimination of early French immersion show that most Canadians recognize the importance of knowing a second language, and will not lose it without a fight.[91] This was not always the case in New Brunswick, a province which once elected eights MPs from the Confederation of Regions Party (COR), a party whose main goal was to abolish all forms of bilingualism in the province.[92]

The situation in New Brunswick regarding early immersion will be interesting to follow, whether one is a legal scholar or not. Bilingualism has been such a big part of our history and for many, our heritage, and that any assault on this principle is guaranteed to anger some citizens. Language is not something that can be tossed aside or belittled, and can have positive, as well as extremely negative consequences, depending on how it is treated in Canadian society:

The system of language rights is symbolically charged. Canada’s bilingual character is an essential feature of Canadian national identity, a reference for national loyalty, pride and patriotism. Like the flag, the national anthem and other overarching symbols of nationhood, Canada’s bilingual composition portrays the national personality- a symbol of Canada- that has potential to strengthen the nation when properly managed. When mishandled, official languages policy has an equal aptitude to contribute to national destruction.[93]



Act to Provide that the English Language shall be the Official Language of the Province of Manitoba, 1890 (Man.), c. 14.

Alberta School Act, S.R.A 2000, c. S-3.

An Act to amend and continue the Act 32 and 33 Victoria chapter 3; and to establish and provide for the Government of the Province of Manitoba, 33 Victoria, c. 3 (Canada).

Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to theCanada Act 1982 (U.K.), 1982, c.11.

Constitution Act, 1867 (U.K.),30 & 31 Vict., c.3, reprinted in R.S.C. 1985, App. II, No. 5

Criminal Code, R.S.C. 1985, c. C-46. [Code]

Languages Act, R.S.A. 2000, c. L-6, R.S.C. 1886, c.50

North-West Territories Act, R.S.C. 1886, c.50

Official Languages Act, R.S.N.B., c. O-0.5North-West Territories West

Official Language Act, S.Q. 1974

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Gosselin (Tutor of) v. Québec (Attorney General), [2005] 1 S.C.R. 238.

Jones v. A.G. of New Brunswick, [1975] 2 S.C.R. 182

MacDonald v. City of Montreal, [1986] 1 S.C.R. 460

Mahé v. Alberta, [1990] 1 S.C.R. 342

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Regina v. Beaulac, [1999] 1 S.C.R. 768

R v. Mercure, [1988] 1 R.C.S. 234

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Société des Acadiens et Acadiennes du Nouveau-Brunswick Inc. v. Canada, 2008 SCC 15.

Société des Acadiens et Acadiennes du Nouveau-Brunswick Inc. v. Canada, 2005 FC 1172.


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Court Challenges Program Makes Partial Comeback

Prime Minister Stephen Harper has decided to restore parts of the court challenges program, eighteen months after the Conservative government originally scrapped it. [1] The new “Program to Support Linguistic Rights” will help Anglophones in Quebec and Francophones in the rest of Canada to defend their language rights under the Charter [2]. The new program puts more emphasis on mediation and alternative dispute resolution, and still does not fund challenges to provincial laws, unless it can be shown that the law violates the Charter .[3] The program will be granted a $1.5 billion budget per year, and will begin in 2009. [4]

In 2006, the Fédération des communautés francophones et acadienne (FCFA) du Canada sued federal government when it first dropped the court challenges program. Heritage Minister Josée Verner announced that an agreement was reached between the two parties, although details have not yet surfaced. [5]


Official Languages Commissioner Graham Fraser believes the restoration of the program is a “huge victory for the minority language communities.” [6] Reactions are not entirely positive; Liberal Heritage critic Denis Coderre laments that other minorities, including gays and lesbians, or those with disabilities, have been left out of the program. [7] New Democrat MP Yvon Godin agrees with Coderre, stating that “ there is nothing for a person with a handicap, nothing for women, nothing for minorities in our country. It is a big loss.” [8]


The news came on the same day the Tories announced their action plan relating to linguistic duality. The plan, which spans 2008-2013 and has a budget of $1.1 billion, aims to support minority language groups in a variety of settings, such as justice, health and immigration. [9] The plan follows the recommendations of Bernard Lord’s report on linguistic duality.


Further Reading:


Canadian Heritage, Summative Evaluation of the Court Challenges Program: Final Report (26 February 2008).


[1] Elizabeth Thompson, Tories Restore Parts of Scrapped Court Challenges Program, The Gazette, 25 June 2008.
[2] Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 [Charter].
[3] Supra note 1.
[5] CBC News, “Conservatives, Francophone Group Reach Deal on Court Challenges” (16 June 2008).
[6] Supra note 1.
[7] Ibid.
[8] Ibid.
[9] Supra note 4.