Some are in the Charter:
ss 16-22: Official Languages of Canada
Eng & Fr “official languages”
of Canada and NB
debates, records & journals,
s. 23: Minority Language Education Rights
Some are in the CA, 1867:
S. 133 (Fr or Eng may be used in Parl, Nat Assembly
of Que, Cts of Quebec and Canada [i.e. S. 101 Cts.])
S. 93 (education): denom school rts at confed
Quebec Prot School Bds case (1984)
Quebec Bill 101 (1977): “Quebec clause” limited Eng lang schooling
to children of parents who had received prim school ed in Eng in Quebec,
or children whose
older siblings had.
1982: After Charter came into effect, Quebec clause clashed with
Que Prot School Bd applied to Quebec Sup Ct for declaration that Quebec
Obviously, there was a clash.
The only issue was whether the Quebec clause could
be justified under s. 1 of the Charter. Remember, this is prior to
the Oakes decision.
Trial Judge: CJ Jules Deschênes
He looked at the sociolinguistic evidence provided
by Que AG
It showed that if the Canada clause replaced the
Quebec clause, this would result in higher enrollments in Eng schools,
but less than 5%
This is not enough to threaten Quebec’s francophone
future. Therefore, the Quebec clause can't be justified under s.1.
Que AG appealed to Que CA and lost again; appealed to SCC
-decision of “the court” (Ritchie, Dickson, Beetz, Estey, McIntyre,
Lamer & Wilson)
-the Quebec Clause is not a “limit” to a right, but a complete denial
of it. Complete denials can never be justified under S. 1.
Société des Acadiens (1986)
-1982: Sch Bd in Grand Falls, New Brunswick, wanted to offer Fr immersion
to francophone st’s in English schools. This idea was opposed
by Société des Acadiens, because they feared that the result
would be lower enrollments in purely francophone schools, and thus resources
to them would be cut. The Société went to the superior trial
ct for a declaration that School Act was violated by this decision of the
-The Société won, and got the declaration. Another
group of parents that wanted the french immersion offered in the English
schools, the Association of Parents, applied for leave (permission) to
appeal the previous decision in the Court of Appeal. The application
for leave was granted by a 3-j panel. One judge (Stratton) was anglophone
with limited ability in French.
-The Société appealed the leave decision; it claimed
that Stratton’s limited ability to understand Fr violated S. 19(2) of the
Charter of Rights. The case got to the SCC. (In this case,
what is impugned is the decision of Stratton that he had a right to participate
in deciding the case, although his French was limited; he did not feel
that his limited ability violated S. 19(2) of the Charter. Look up
what S. 19(2) says.
-Issue: does the word “use” -- referring to French in S. 19(2) -- mean
judges must clearly understand French?
-SCC majority (Beetz, Esty, Chouinard, Lamer & Le Dain):
-Beetz wrote that language rts are different from
the usual rights that a constitutional bill of rights protects, i.e. fundamental
freedoms, legal rights,
and equality rights. Language rights are based
on political compromise. Therefore, decisions to broaden lang rts
should be made by legislatures, not courts.
-s. 19 similar to s. 17 of Charter. In S.
17, which refers to legislatures, it is clear that not all elected members
would have to be fluent in both languages.
They could rely on interpreters. Therefore,
"using" French does not imply a right to be understood in that language.
-Charter would have been clear if rt to be understood
had been intended bu the framers. For example, S. 20 of the Charter
refers to "communication."
That clearly means the right to be understood in
a particular language. The word “communicate” could have been used
in S. 19(2), but was not.
-In any case, natural justice implies a right to
be understood by any reasonable means (eg. interpreter). But this
right does not stem from S. 19(2).
-It's up to Stratton to decide if he understand
enough French, or needs an interpreter. Any other approach would
violate judicial independence.
Separate concurring opinions
-Dickson: lang rts so important, they sh be int’d broadly.
Therefore, S. 19(2) does imply a right to be understood in either English
However, it's still up to Stratton to decide, however,
if he knows enough French to understand without an interpreter..
-Wilson: we need a “progressively expansive interpretation” of
language rights. Today, the standard is “receptive bilingualism.”
In the future, the standard may become complete
fluency. Litigants have a right to be understood; it’s up to Stratton
to decide if he understands (judicial
Manitoba Lang Rts Case (1985)
-S. 23 of Man Act, 1870 is similar to S. 133 of CA, 1867.
-1890: anglophones became majority in Manitoba, and Manitoba
legislature enacted the “Official Language Act” (English only).
Clearly, this act was ultra vires S. 23 of
-In 1892, 1909, 1976: Official Language Act was challenged by
a francophone, & the challenger won. However, the victory was
but only in
County Crt (an inferior court), and Manitoba gov’t
refused to comply. Winner cld not appeal; gov’t did not want to appeal.
So the court's decision was not complied with.
-1978: Forest brought an application to Manitoba Ct of Appeal
for a declaration that Off Lang Act ultra vires, and lost (fortunately).
Because Forest lost, he could appeal to SCC. He did so, and won in
1979. However, the Manitoba legislature was slow to act on this,
and only a few statutes were translated into French.
-At same time as Forest decision, SCC released decision in Blaikie
case that parts of Quebec's Bill 101 that contradicted S. 133 were ultra
vires. (Bill 101, amongst other things, had declared French to be
the only "official language" in Quebec, and henceforth statutes were enacted
in French only in spite of S. 133.) Quebec was quick to react, and
re-enacted the impugned statutes in French and English.
-Roger Bilodeau was not happy with how slow the Manitoba legislature
was to enact all statutes in French and English. He pleaded not guilty
to a traffic offence; he claimed that the summons was in English only,
and so contradicted S. 23 of the Manitoba Act and so was invalid.
-The Fed gov’t feared that the Bilodeau case might not answer the question
about the status of all Manitoba statutes enacted in English only since
1890. So the fed cabinet sent a reference question to SCC to answer
all issues re status of Manitoba laws.
-SCC heard reference case and Bilodeau together in 1984.
-Decision of “the court” (Dickson, Beetz, Estey,
McIntyre, Lamer, Wilson & Le Dain): All Manitoba statutes since
1890 are invalid, and there's no way to
-The SCC developed the “doctrine of necessity”:
“The constitution will not suffer a province without laws.” Manitoba
laws were declared temporarily
valid for 3 years to give Manitoba legislature a
chance to re-enact all in French & English.
-In 1981, Duncan Cross MacDonald got a traffic summons in Quebec
in Fr only. He pleaded that this action violated s. 133.
Case got to SCC. At SCC, MacDonald lost.
Court stated that S. 133 allows officials to use Fr or English. MacDonald
has a right to have his summons
translated, but he did not request the translation.
-Bilodeau: also lost because Manitoba statutes were temporarily
-Wilson: dissents in both MacDonald and Bilodeau. She argues
that rights are conferred on invidivuals, not governments. Government
does not therefore have a "right" to use either English or French in court
documents. It's citizens who have a "right" to receive the summons
in English or French.
-1905: The provinces of AB and Sask were created. The laws
of old NWT incorporated into new provinces until revised by new legislatures.
-S. 110 of NWT Act is like S. 133. AB and Sask were to be bilingual.
S. 110 could be amended by the new legislatures, but never were.
-1981: Father Mercure was charged with speeding. He claimed
he had a right to proceed in French because of S. 110.
The judge denied permission. Mercure appealed all the way to SCC,
impugning the judge's decision not to allow him to proceed in French.
However, he died before case could be heard. SCC heard anyway because
of the importance of the issues raised. All 9 js on panel.
-Decision: Sask in similar position to Manitoba: but because
of doctrine of necessity, Sask laws were declared temporarily vaild.
(Estey and McIntyre, however, thought S. 110 had not really been incorporated
into Sask laws.)
-The majority, however, allowed Saskatchewan a way out. La Forest
wrote that S. 110 can be amended by the Sask legislature, as it is not
part of the Canadian constitution, as the Manitoba Act is.
-An argument presented to the court by counsel for Mercure was that
S. 110 could be amended only through S. 43 of CA, 1982. In other
words, lang rts are included in “some but not all” amending formula (a
province and Parliament must act together), and so Sask can't amend S.
110 alone. No judge agreed with this argument, although it is quite
persuasive. Perhaps the judges were worried about creating an anti-French
backlash in Sask and Alberta.
-Sask and AB both repealed S. 110 of the NWT Act, but made some accommodations
to francophones with the assistance of federal grants.