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Bilingualism ruling seen as ‘major setback’

Thursday, December 03, 2015 @ 7:00 PM | By Cristin Schmitz

The Supreme Court’s refusal to constitutionally entrench “legislative bilingualism” in Alberta moves the fight for French language services in that province back to the political realm, say language rights advocates.

The court divided 6-3 on Nov. 20 to dismiss the appeals of two francophone Albertans who challenged their English only traffic tickets in 2008.

They argued that Alberta’s Traffic Safety Act was invalid because the province was constitutionally obliged to enact its laws in both French and English by virtue of the historic bargain Canada struck in 1867 with the Metis and other inhabitants of Rupert’s Land and the North-Western Territory to annex the Hudson Bay Company controlled lands (comprising the Prairies and the North, including parts of Ontario and Quebec).

Gilles Caron and Pierre Boutet won in provincial court, but lost at Alberta’s Court of Queen’s Bench and Court of Appeal.

They struck out for the third and last time at the Supreme Court where the majority did not agree that Alberta is obliged to enact, print and publish all its laws in both languages pursuant to a constitutional promise implicit in documents from 1867 and 1870 that statutes in the annexed territory would be published in both languages.

“As we see it, there are many fundamental flaws in the appellants’ position” which is “inconsistent with the text, context, and purpose of the documents on which they rely, and must be rejected,” Justices Thomas Cromwell and Andromache Karakatsanis wrote on behalf of Chief Justice Beverley McLachlin and Justices Marshall Rothstein, Michael Moldaver, and Clément Gascon.

The majority noted that the political events, negotiations and agreement which led to the territories’ annexation in 1870, also culminated in the creation of the province of Manitoba.

“Legislative bilingualism is expressly provided for in the Manitoba Act, 1870 but is not mentioned in either the 1867 Address [in which Parliament formally asked Queen Victoria to annex the territories] or the 1870 [Rupert’s Land and North-Western Territory] Order, the documents upon which the appellants rely,” Justices Cromwell and Karakatsanis reasoned.

“It is inconceivable that such an important right, if it were granted, would not have been granted in explicit language as it was in the Canadian Constitution and in the Manitoba Act, 1870, which was enacted at the same time as the 1870 Order was made.”

In dissent Justices Rosalie Abella, Richard Wagner and Suzanne Côté (the latter are two of the court’s three Quebec judges) agreed with the appellants that Canada promised legislative bilingualism in the 1867 Address when the Dominion of Canada pledged that, in the event of a transfer, she “will be ready to provide that the legal rights of any corporation, company, or individual within the same shall be respected.”

The words to respect the “legal rights” of those in the territories — many or most of whom were French-speaking — when read in their full context, gave assurance that the laws would be enacted in both languages in the territories and what eventually became the province of Alberta, the minority concluded.

Caron’s counsel, Roger Lepage of Regina’s Miller Thomson, called the majority decision a “huge surprise.

“I think it’s a major setback for language rights in Canada,” said the longtime language rights advocate.

“I am saddened by the decision because I think the majority starts off from the premise that language rights can only be constitutionalized if they are contained in an explicit text which, in my opinion, goes contrary to the principles the court had established in the past. It’s the first time that I’m told that: ‘Unless you have explicit text in a constitutional document, language rights don’t exist.’ ”

Mark Power of Vancouver’s Juristes Power, who was counsel for the intervener Association canadienne française de l’Alberta and also co-counsel for Boutet, called the decision a “tremendous disappointment.”

He contrasted the court’s approach to Aboriginal rights claims with its reasoning on language rights in Caron.

“As the minority shows, all of the historians agree that a deal was cut. All of the sociologists agree that that deal was that the Northwest would continue to essentially be as bilingual as New Brunswick and Manitoba, and yet it was not [expressly] in writing…But more major developments of the law have occurred in First Nations law with much less in writing — in fact some claims are almost solely based on oral history.

“But the majority says ‘No — you didn’t get it in writing, and so that [language] right doesn’t exist.’ ”

“I think that’s an overstatement, frankly,” responded Graeme Mitchell, counsel for the intervener Saskatchewan. Had the appellants won, that province would also have been compelled to translate all its laws and regulations into French.

“If you read the majority decision — and they’re absolutely right — any guarantee of language rights in our constitutional system has always been explicit, both pre-1870 and post-1870,” Mitchell said. “You can’t point to a situation where language rights have been given constitutional stature or protection where they were not explicitly set out — even in the Charter.”

He added “we’re satisfied with the judgment.” Saskatchewan has been translating laws of importance to the community into French since litigation over the issue reached the Supreme Court in 1988, he said. “We have over 50 [translated statutes] at the moment, and both the Court of Appeal Act and Regulations and the Queen’s Bench Act and Rules are in both official languages,” Mitchell said. “We’re going to…continue to do that work, and enlarge the number of bilingual statutes.”

Boutet’s counsel, University of Ottawa law professor Sébastien Grammond, said longstanding demands in Alberta for bilingual laws and delivery of other government services in French must be dealt with by the government.

“I think progress will have to be made on the political stage,” he said. “The big question is, will the new NDP government of Alberta show a more open approach than the previous [Progressive Conservative] government?”

Justices Cromwell and Karakatsanis concluded that discussions leading to the annexing of the territories show that neither Canada, nor the representatives of the territories, “ever considered that the promise to respect ‘legal rights’ in the 1867 Address referred to linguistic rights. Rather, the contemporary evidence shows that the territorial representatives considered that their linguistic rights had been assured through the Manitoba Act, 1870, not the 1870 Order, and not the 1867 Address, which is annexed as a schedule to the 1870 Order. In addition, the Parliamentary debates related to the adoption of the 1867 Address show that language rights were not subsumed under the phrase ‘legal rights’.”