3.3 Legislative and judicial bilingualism in Alberta
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R. c. Caron96
The defendant, Gilles Caron, was charged with a violation of the Alberta Traffic Safety Act.97 The defendant did not contest the facts surrounding the traffic violation, which Wenden J. of the Provincial Court of Alberta found to be sufficient to prove his guilt beyond a reasonable doubt. Rather, in his defence, Mr. Caron alleged that his constitutional rights had been violated because the statute in question had not been published in the French language. The constitutional challenge launched by Mr. Caron took aim at the Alberta Languages Act98 of 1988, which provides that all acts or regulations may be enacted, printed and published solely in the English language. As such, he was seeking the following remedies:
- A declaration under section 52 of the Constitution Act, 198299 that the Alberta Languages Act, to the extent that it abolishes or diminishes the language rights that were in force prior to its adoption, is incompatible with the Constitution of Canada and is of no force and effect.
- An order under section 24(1) of the Charter that the charges against him be dropped.
- A declaration under section 52 that the Legislature of the Province of Alberta adopt and sanction all the laws and regulations of the Province of Alberta in French, starting with those required by the defendant within the current proceedings: Traffic Safety Act; Use of Highways and Rules of the Road Regulations;100 Provincial Court Act;101 etc.
- A declaration under section 52 that all persons have a constitutional guarantee to court proceedings in French, like in English, in penal and civil matters before all courts of the Province of Alberta, including the right to submit all documents and forms in French and to be heard and understood in French without the use of an interpreter.
Essentially, the defence’s theory, which focused on the period from 1846 to 1877, was that language rights (both legislative and before the courts) were a condition of the transfer and admission of Rupert’s Land and the North-Western Territory to Canada, and that these rights had been entrenched in the Constitution. The defence’s theory was based on the status and use of the French language prior to and after the transfer and admission of these territories to Canada.
A. The hearing
After overcoming some initial difficulties experienced by Mr. Caron in obtaining a trial in French, the trial, originally set for five days in October 2005, commenced on March 1, 2006 and lasted a total of 89 days spread over several periods. Eight expert witnesses were heard (five for the defence and three for the province) on the subjects of history, sociology, sociolinguistics and political science, and the testimony of four witnesses (including the defendant) described the difficulties they experienced in "living in French." Approximately 80 pages of the 96-page judgment describe and analyze the historical evidence presented during the hearing. In the words of Wenden J., it was a "hearing without precedent."102
B. Historical context
The vast territory of Rupert’s Land and the Northwest (which today includes the Northwest Territories, the Yukon, most of Manitoba, Saskatchewan and Alberta, northern Ontario, northern Quebec and most of Nunavut) remained under the tutorship of the Hudson’s Bay Company for decades. The majority of the population lived in the Red River Settlement situated in Rupert’s Land (part of what is Manitoba today). There were no other settlements within the territory of similar dimensions. It was not until after the transfer of the territories to Canada that the population started settling further west.
At the time of the transfer, the Red River Settlement was the residence of the Governor General of the colony, the administrative headquarters of the Hudson’s Bay Company, the Council of Assiniboia and the Recorder’s Court. The population of the Red River Settlement was almost evenly split between people of French and Aboriginal descent (Métis) and of English and Aboriginal descent (Sang-Mêlés). The settlement was the start and return point for those who worked for the Hudson’s Bay Company (as hunters, trappers, etc.) throughout the territory to be transferred to Canada. In reality, the population of the Red River Settlement was the population of Rupert’s Land and the Northwest.
In 1868–1869, the Company decided to cede its charter to the British Crown and consented to the transfer of Rupert’s Land and the North-Western Territory to Canada in exchange for financial compensation and the retrocession of certain Arab lands. However, the conditions and procedures to admit the territories into Canada provided for under section 146 of the Constitution Act, 1867103 required British intervention.
The decision to cede the territory to the British Crown and to subsequently transfer it to Canada had been made by the Hudson’s Bay Company, the British Parliament and the Parliament of Canada. However, the residing population had not been consulted. This omission resulted in the dissatisfaction of a segment of the population, more particularly the Métis community, which was concerned that the transfer would affect its rights, and ultimately led to the Red River Rebellion. Although the transfer had been set for December 1, 1869, the disturbances forced the parties to suspend the transfer procedure and to push back the cession date. In fact, the Canadian government did not want to accept the transfer because of the unstable situation that existed at the Red River Settlement.
Meanwhile, the Métis and Sang-Mêlés held two conventions to establish their demands, and redacted a List of Rights (in fact, four lists had been developed in different stages). Representatives of both communities were present at these conventions, as was the representative of the Canadian government, Donald Smith. During the second convention, Mr. Smith rendered public the Proclamation of the 6th of December 1869, enacted in Her Majesty’s name by the representative of the British Empire for the region, Governor General Young. The Proclamation was issued in response to the population’s demands and sought to re-establish order in the territory. It guaranteed that the inhabitants’ rights would be respected after the territory’s admission into Canada. The transfer finally took place by Order of Her Majesty in Council, adopted on June 23, 1870, and came into force on July 5, 1870.
C. Language rights in Rupert’s Land and the North-Western Territory prior to the transfer to Canada
The defence alleged that the French language had been used by the courts and in the Council for the District of Assiniboia before the transfer of the territories to Canada. In fact, the use of the French language was well established and never contested; judges (recorders) were bilingual, there were Francophone juries and the Council for the District of Assiniboia included Francophone councillors. The defence argued that these facts represented the beginning of official bilingualism in the region. In support of this proposition, the defence relied on three events: the memoranda of the Métis and Sang-Mêlés sent to the Secretary of State for the Colonies in 1846 detailing certain demands, the Sayer trial of 1849 and the use of French by the Council for the District of Assiniboia.
The memorandum of the Métis and the memorandum of the Sang-Mêlés sent to the Secretary of State for the Colonies constituted the beginning of a pact between Francophones and Anglophones that culminated in the adoption of the List of Rights in 1869–1870. According to the Court, the two memoranda, when read together, covered the entirety of Rupert’s Land and the Northwest (as opposed to the Red River Settlement only), and contained an implicit demand for the presence of Francophone judges. Similarly, during the Sayer trial, demands were made that the hearing be conducted in the French language, confirming that the right to a trial in French existed at that time and in the territory in question. The official status of the French language was further demonstrated by the extent to which it was used by the Council for the District of Assiniboia: when the council acted as legislature, orders and regulations were issued in French; when the council acted as a tribunal, jury summons were also issued in French.
D. Language rights in Rupert’s Land and the North-Western Territory during and after the transfer to Canada
Having established that language rights (both legislative and before the courts) existed in the territories prior to their transfer to Canada, the Court then had to determine whether their recognition was a condition of the transfer. In order to do so, the Court examined the context in which the transfer was made as well as various constitutional documents surrounding the transfer. Central to the defence’s theory were the List of Rights developed in 1869–1870, and the Proclamation of the 6th of December 1869.
The List of Rights, developed in four stages in 1869–1870, explicitly included language guarantees regarding the legislative assembly and the courts. The Court found that the rights mentioned in the list were bona fide rights that emerged from the pact entered into by the Anglophones (Sang-Mêlés) and Francophones (Métis) regarding the conditions for admission into the Union. Furthermore, the Court found that the list also reflected a pact entered into by the delegates of the Métis and Sang-Mêlés and the provisional government. The third list reiterated the demands found in the previous lists, and was written by the provisional government. According to the Court, this pact was continued by the British Parliament with section 23 of the Manitoba Act, 1870,104 and confirmed by the Parliament of Canada in the North-West Territories Act, 1875105 and its subsequent amendment in 1877 with the addition of section 11,106 which would later be renumbered as section 110.
The purpose of the Proclamation of 1869 was to resolve the problem caused by the Red River Rebellion and to obtain the peaceful transfer of the territories, taking into account the grievances and demands expressed by the delegates in the List of Rights. Therefore, in exchange for a peaceful transfer, the Proclamation made certain guarantees: that all civil and religious rights and privileges would be respected. The Proclamation originated from the Queen, and the authorities in London believed that it had the force of law. They authorized Governor General Young to issue the Proclamation, whoin turn asked Donald Smith, the representative of the Canadian government, to read it to the delegates in order to obtain their obedience following the rebellion. By disclosing the contents of the Proclamation at that time, that is, during the second convention, the authorities indicated to the population, at that time, that they wanted to obtain their obedience. Thus, the proclamation had the force of law and imposed an obligation on the population to stop the rebellion, while bringing them certain guarantees, namely the respect of their civil and religious rights and privileges. The term "civil rights" was interpreted by the Court to include language rights, as was expressed by the delegates during the conventions and in the List of Rights.
The Order of Her Majesty in Council Admitting Rupert’s Land and the North-Western Territory into the Union, 1870107 enacted by Her Majesty on June 23, 1870, contained 15 conditions. The fifteenth condition was very specific: "The Governor in Council is authorized and empowered to arrange any details that may be necessary to carry out the above terms and conditions." In fact, the fifteenth condition restated, in very similar language, a resolution voted on by the House of Commons on May 28, 1869, setting the conditions for the transfer. According to the Court, the Proclamation of 1869 was issued by the governor in accordance with the fifteenth condition, and therefore had acquired constitutional status.
E. The Court’s jurisdiction regarding remedy
Having determined that language rights (both legislative and before the courts) were a condition of the transfer and admission of Rupert’s Land and the North-Western Territory into Canada, Wenden J. found that the Languages Act violated Mr. Caron’s language rights, but that the Court lacked the jurisdiction under section 52 of the Constitution Act, 1982 to declare the Act unconstitutional. Instead, he declared the Traffic Safety Act and its regulations of no force and effect in relation to the specific charges against Mr. Caron, due to the fact they were enacted solely in the English language. As such, Mr. Caron was found not guilty.
The Province of Alberta has appealed the decision to the Court of Queen’s Bench. The appeal was heard in January 2009.108
