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Constitutional law — Constitution of a Province — Power to amend — Language of the Legislature and of the Courts — Charter of the French language — Scope of s. 133 of the B.N.A. Act — Charter of the French language, L.Q. 1977, c. 5, ss. I, 7 to 13 — British North America Act, ss. 92(1), 133.

At the request of respondents Blaikie, Durand and Goldstein, the Superior Court of Quebec held that the provisions of Chapter III of Title I of the Charter of the French language, titled "The Language of the Legisla­ture and the Courts" (ss. 7 to 13), are ultra vires the

[Page 1017]

Legislature of Quebec because they are in direct viola­tion of s. 133 of the B.N.A. Act, the provisions of which cannot be unilaterally modified by that Legislature. In another case heard concurrently, respondent Laurier further alleged that the challenged sections were incom­patible with the Quebec Charter of Human Rights and Freedoms, but this argument was not considered by the Superior Court.

A seven-Judge Quebec Court of Appeal unanimously affirmed both judgments. Appellant, the Attorney Gen­eral of Quebec, obtained leave to raise the constitutional aspect of the case in this Court. He relied primarily on s. 92(1) of the B.N.A. Act, arguing that the power of legislatures to amend "the Constitution of the Province" enabled the legislature of Quebec to enact the chal­lenged provisions. A subsidiary contention of the appel­lant was that the challenged provisions were not incom­patible with s. 133.

Held: The appeals should be dismissed.

The disputed Chapter III is a particular projection of s. 1 of the Charter, which provides that "French is the official language of Quebec". This Court is concerned here only with the particular, and nothing in this judg­ment is to be taken as passing upon the validity of any other provisions of the enactment.

The Court is in agreement with the lower courts, which concluded that ss. 7 to 13 are manifestly in conflict with s. 133. By requiring printing and publica­tion of statutes in both languages, the section in question covers enactment by implication: what is required to be printed and published in French and in English is described as "Acts" and texts do not become "Acts" without enactment.

Section 133 is an entrenched provision, not only forb­idding modification by unilateral action of Parliament or of the Quebec Legislature but also providing a guar­antee to members of Parliament or of the Quebec Legislature and to litigants in the Courts of Canada or of Quebec that they are entitled to use French or English in parliamentary or legislative assembly debates or in pleading (including oral argument) in the Courts of Canada or of Quebec.

Dealing now with the question whether "regulations" issued under the authority of Acts of the legislature of Quebec are "Acts" within the purview of s. 133, it is apparent that it would truncate the requirement of s. 133 if account were not taken of the growth of delegated legislation. This is a case where the greater must include the lesser. The reference in s. 133 to "any of the Courts of Quebec" ought also to be considered broadly, as

[Page 1018]

including not only so-called s. 96 Courts but also Courts established by the Province and administered by provin­cially-appointed judges. In the rudimentary state of administrative law in 1867, it is not surprising that there was no reference to non-curial adjudicative agencies. Dealing with a constitutional guarantee, it would be overly-technical to ignore the modern development of non-curial adjudicative agencies which play so impor­tant a role in our society, and to refuse to extend to proceedings before them the guarantee of the right to use either French or English by those subject to their jurisdiction.

Fielding v. Thomas, [1896] A.C. 600; Jones v. Attor­ney General of New Brunswick, [1975] 2 S.C.R. 182; Edwards v. Attorney General of Canada, [1930] A.C. 124; Attorney General of Ontario v. Attorney General of Canada, [1947] A.C. 127, referred to.

APPEALS from two decisions of the Court of Appeal of Quebec[1], affirming two judgments of Deschênes C.J. of the Superior Court[2], holding certain provisions of the Quebec Charter of the French language to be ultra vires. Appeals dismissed.

Jean K. Samson, Henri Brun and Louis Crête, for the appellant.

A. Kerr Twaddle, Q.C., and Eleanor R. Dawson, for the intervenor the Attorney General of Manitoba.

D. J. Johnston, R. S. Litvack and A. Brossard, Q.C., for the respondents Blaikie et al.

David Wood and William Aaron, for the respondent Henri Wilfrid Laurier.

Raynold Langlois, James Mabbutt and André Asselin, Q.C., for the respondent the Attorney General of Canada.

Alan D. Reid, for the intervenor the Attorney General of New Brunswick.

Alain J. Hogue, M. B. Nepon and C. W. Sharp, for the intervenor Georges Forest.

[Page 1019]

THE COURT—In detailed and extensive reasons for judgment, delivered on January 23, 1978[3], Deschênes C.J. of the Quebec Superior Court granted a declaration sought by the plaintiffs Blaikie, Durand and Goldstein that Chapter III of Title I of the Charter of the French language, 1977 (Que.), c. 5, being ss. 7 to 13 of that Statute, was ultra vires the Legislature of Quebec. He held that the challenged statutory provisions were in direct violation of s. 133 of the British North America Act and that it was beyond the compe­tence of the Quebec Legislature to modify unilat­erally the prescriptions of that section. A similar result, and for the same reasons, was reached in a companion case brought by the plaintiff Laurier, who urged not only the unconstitutionality of the challenged provisions of the Quebec Statute but also their incompatibility with the previously enacted Quebec Charter of Human Rights and Freedoms, 1975 (Que.), c. 6. Deschênes C.J. con­cluded that in view of his declaration of invalidity it was unnecessary to pass on the alleged conflict with the Quebec Charter of Human Rights and Freedoms.

A seven-Judge Quebec Court of Appeal unani­mously affirmed the judgment of Deschênes C.J. in both cases[4], it too finding it unnecessary to deal with the alternative point raised in the Laurier case. Leave was sought and given to the Attorney-General of Quebec to argue the issue of constitu­tionality here, the following question being posed for determination:

Are the provisions of Chapter III of Title One of the Charter of the French language (L.Q. 1977, ch. 5) entitled "The Language of the Legislature and the Courts" unconstitutional, ultra vires or inoperative to the extent that they violate the provisions of Section 133 of the British North America Act (1867)?

The Attorney General of Canada had been an intervenor before the Quebec Superior Court and before the Quebec Court of Appeal, supporting the claim of the plaintiffs. He took the same position

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as intervenor here. In addition, the Attorney Gen­eral of Manitoba intervened to support the appel­lant and the Attorney General of New Brunswick intervened in support of the respondents. A late intervention in support of the respondents was allowed to Georges Forest, who was the successful party in the Manitoba Court of Appeal in attack­ing the validity of The Official Language Act, 1890 (Man.), c. 14, as being incompatible with s. 23 of the Manitoba Act, 1870 (Can.), c. 3, confirmed by the British North America Act, 1871 (U.K.), c. 28: see Forest v. Attorney General of Manitoba, judgment delivered on April 25, 1979[5]. Leave to appeal this judgment was given by this Court, the case to be inscribed for hearing at the beginning of the October 1979 term.

Chapter III of Title I of the Charter of the French language, entitled "The Language of the Legislature and of the Courts", reads as follows:

7. French is the language of the legislature and the courts in Quebec.

8. Legislative bills shall be drafted in the official language. They shall also be tabled in the Assemblée nationale, passed and assented to in that language.

9. Only the French text of the statutes and regula­tions is official.

10. An English version of every legislative bill, statute and regulation shall be printed and published by the civil administration.

11. Artificial persons addressing themselves to the courts and to bodies discharging judicial or quasi-judi­cial functions shall do so in the official language, and shall use the official language in pleading before them unless all the parties to the action agree to their pleading in English.

12. Procedural documents issued by bodies discharg­ing judicial or quasi-judicial functions or drawn up and sent by the advocates practising before them shall be drawn up in the official language. Such documents may, however, be drawn up in another language if the natural person for whose intention they are issued expressly consents thereto.

13. The judgments rendered in Quebec by the courts and by bodies discharging judicial or quasi-judicial functions must be drawn up in French or be accom­panied with a duly authenticated French version. Only the French version of the judgment is official.

[Page 1021]

The competence of the Quebec Legislature to enact all or any part of the foregoing provisions, in the face of s. 133 of the British North America Act, was asserted by the appellant mainly in reli­ance upon s. 92(1) of the British North America Act, which was said to provide adequate authority for the challenged provisions. A subsidiary conten­tion of the appellant was that the challenged provi­sions were not incompatible with s. 133. Section 133 and s. 92(1) are in the following terms:

133. Either the English or the French Language may be used by any Person in the Debates of the Houses of the Parliament of Canada and of the Houses of the Legislature of Quebec; 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 this Act, and in or from all or any of the Courts of Quebec.

The Acts of the Parliament of Canada and of the Legislature of Quebec shall be printed and published in both those Languages.

92. In each Province the Legislature may exclusively make Laws in relation to Matters coming within the Classes of Subjects next herein-after enumerated; that is to say,—

1. The Amendment from Time to Time, notwithstand­ing anything in this Act, of the Constitution of the Province, except as regards the Office of Lieuten­ant Governor.

Chapter III of Title I of the Charter of the French language is a particular projection of s. 1 of Chapter 1, Title I, of this statute which declares that "French is the official language of Quebec". This Court is concerned here only with the par­ticular, and nothing in these reasons is to be taken as passing upon the validity of any other provisions of the enactment. That being said, it will be con­venient to deal with the subsidiary contention of the appellant that ss. 7 to 13 of Chapter III of Title I of the Charter of the French language can operate or subsist compatibly with s. 133 of the British North America Act. In his detailed reasons for judgment Deschênes C.J. explained why he could not agree with that contention. The same view was taken in the reasons for judgment delivered

[Page 1022]

in the Quebec Court of Appeal, especially those of Dubé J.A. who found the challenged ss. 7 to 13 and s. 133 to be "en contradiction flagrante" and those of Lamer J.A. (with whom Kaufman, Bernier and Mayrand JJ.A. agreed) who said that it was manifest that ss. 7 to 13 of the Charter of the French language were in conflict with s. 133.

Sections 8 and 9 of the Charter of the French language, reproduced above, are not easy to recon­cile with s. 133 which not only provides but requires that official status be given to both French and English in respect of the printing and publication of the Statutes of the Legislature of Quebec. It was urged before this Court that there was no requirement of enactment in both lan­guages, as contrasted with printing and publishing. However, if full weight is given to every word of s. 133 it becomes apparent that this requirement is implicit. What is required to be printed and pub­lished in both languages is described as "Acts" and texts do not become "Acts" without enactment. Statutes can only be known by being printed and published in connection with their enactment so that Bills be transformed into Acts. Moreover, it would be strange to have a requirement, as in s. 133, that both English and French "shall be used in the ... Records and Journals" of the Houses (there were then two) of the Quebec Legislature and not to have this requirement extend to the enactment of legislation.

So, too, is there incompatibility when ss. 11 and 12 of the Charter would compel artificial persons to use French alone and make it the only official language of "procedural documents" in judicial or quasi-judicial proceedings, while section 133 gives persons involved in proceedings in the Courts of Quebec the option to use either French or English in any pleading or process. Whether s. 133 covers the processes of "bodies discharging judicial or quasi-judicial functions", whether it covers the issuing and publication of judgments of the Courts and decisions of "judicial or quasi-judicial" tri­bunals, and also whether it embraces delegated legislation will be considered later.

[Page 1023]

The central issue in this case, reflected in the question posed for determination by this Court, is whether the Legislature of Quebec may unilateral­ly amend or modify the provisions of s. 133 in so far as they relate to the Legislature and Courts of Quebec. It was the contention of the appellant that the language of the Legislature and of the Courts of Quebec is part of the Constitution of the Prov­ince and hence is within the unilateral amending or modifying authority of the Legislature under s. 92(1). Emphasis was, understandably, placed on the words in s. 92(1) "notwithstanding anything in this Act".

What is meant by "the Constitution of the Province" is not defined or described in any enact­ing terms of the British North America Act. The Act is divided into consecutively numbered parts (following the preamble) from roman numeral Ito XI (part X, respecting the intercolonial railway, was repealed as spent, by 1893 (U.K.), c. 14), each number having an associated heading. The roman numeral V has subjoined to it the words "Provin­cial Constitutions", embracing ss. 58 to 90 of the Act. (Sections 81 and 89 were repealed, as spent provisions, by 1893 (U.K.), c. 14).

It was urged against the contention of the appel­lant that whatever be embraced in a constitution as a generality or in the abstract, the British North America Act provided its own dictionary meaning by embracing only those provisions included under the number and heading "V-Provincial Constitutions". These did not reach s. 133 which was, therefore, outside of the amending power conferred by s. 92(1). A contrary submis­sion was made that other provisions in the British North America Act, which could be properly regarded as coming within the words in s. 92(1) "The Constitution of the Province", were outside of Part V, and hence there was no logic to a limitation of those words to what was included only in Part V. Among the provisions said to be in this category were ss. 128, 129, 134, 135, 136, 137 and 144. It is apparent that ss. 129, 134, 135, 136 and 137 are transitional provisions and hence stand on a different footing than s. 133. Section 144, dealing with the establishment of townships in Quebec by proclamation of the Lieutenant-Governor

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of Quebec, appears to be related more prop­erly to provincial power in relation to municipal institutions in the Province under s. 92(8) of the British North America Act than to the Constitu­tion of the Province under s. 92(1). Section 128, referring to the taking of a prescribed oath of allegiance before the Governor-General or before the Lieutenant-Governor of a Province by elected or appointed members of the federal House of Commons or Senate or a provincial Legislative Assembly or Council, as the case may be, raises a different issue, referable to the office of the Gover­nor-General and of the Lieutenant-Governor and touching the position of the Crown in respect of members of the legislative chambers, so long as such chambers exist. There has not been any Legislative Council in Quebec since its abolition by Quebec legislation in late 1968.

It was also the position of the appellant and of its supporting intervenor, the Attorney General of Manitoba, that Fielding v. Thomas[6] showed that Part V was not exhaustive of what was included in "the Constitution of the Province". That case, taken broadly, concerned the privileges and immunities of members of the Nova Scotia Legis­lative Assembly, and legislation giving immunity from civil liability in respect of words and conduct in the Legislative Assembly was held to be intra vires under s. 92(1).

The fact that Fielding v. Thomas concerned matters relating to the Constitution of the Prov­ince, in the sense that it bore on the operation of an organ of the government of the Province, does not help to establish the appellant's position as to the unlimited scope of s. 92(1). The latter may, of course, cover such changes as were dealt with in Fielding v. Thomas and, also, other matters not expressly covered by the British North America Act but implicit in the Constitution of the Prov­ince. That does not, however, carry the necessary conclusion that s. 133 is unilaterally amendable. Indeed, the argument goes too far because, as pressed, it would permit amendment of the cata­logue of legislative powers in the succeeding catalogue

[Page 1025]

of classes of subjects in s. 92 and this was not suggested.

It does not seem necessary to come to a determi­nation whether s. 128 is part of the Constitution of the Province and amendable as such under s. 92(1), so as to lend support to the appellant's contention of the amendability by unilateral action of s. 133. The reasons for this transcend even the widest operation of s. 92(1) and are cogently set out in the judgment of Deschênes C.J., followed by the Quebec Court of Appeal. He found that s. 133 is not part of the Constitution of the Province within s. 92(1) but is rather part of the Constitu­tion of Canada and of Quebec in an indivisible sense, giving official status to French and English in the Parliament and in the Courts of Canada as well as in the Legislature and Courts of Quebec. Concerning the qualification in s. 91(1) of the British North America Act (enacted by 1949 (U.K.), c. 81) to the power of Parliament to amend the "Constitution of Canada", except (inter alia), "as regards the use of the English or French language" it is difficult to see how this amendment enacted in the terms requested by Parliament, can be of any help in interpreting a statute expressly passed for the purpose of giving effect to a political arrangement, made more than eighty years earlier, which did not contemplate such federal power.

There is, moreover, another consideration noticed in the Courts below which should also be brought into account. In Jones v. Attorney-Gener­al of New Brunswick[7], which concerned the validi­ty of the federal Official Languages Act, the Court had this to say about s. 133 (at pp. 192-3):

... Certainly, what s. 133 itself gives may not be diminished by the Parliament of Canada, but if its provisions are respected there is nothing in it or in any other parts of the British North America Act (reserving for later consideration s. 91(1)) that precludes the con­ferring of additional rights or privileges or the imposing

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of additional obligations respecting the use of English and French, if done in relation to matters within the competence of the enacting Legislature.

The words of s. 133 themselves point to its limited concern with language rights; and it is, in my view, correctly described as giving a constitutionally based right to any person to use English or French in legisla­tive debates in the federal and Quebec Houses and in any pleading or process in or issuing from any federally established Court or any Court of Quebec, and as imposing an obligation of the use of English and French in the records and journals of the federal and Quebec legislative Houses and in the printing and publication of federal and Quebec legislation. There is no warrant for reading this provision, so limited to the federal and Quebec legislative chambers and their legislation, and to federal and Quebec Courts, as being in effect a final and legislatively unalterable determination for Canada, for Quebec and for all other Provinces, of the limits of the privileged or obligatory use of English and French in public proceedings, in public institutions and in public communications. On its face, s. 133 provides special protection in the use of English and French; there is no other provision of the British North America Act refer-able to the Parliament of Canada (apart from s. 91(1)) which deals with language as a legislative matter or otherwise. I am unable to appreciate the submission that to extend by legislation the privileged or required public use of English and French would be violative of s. 133 when there has been no interference with the special protection which it prescribed .. .

What the Jones case decided was that Parlia­ment could enlarge the protection afforded to the use of French and English in agencies and institu­tions and programmes falling within federal legis­lative authority. There was no suggestion that it could unilaterally contract the guarantees or requirements of s. 133. Yet it is contraction not enlargement that is the object and subject of Chapter III, Title I of the Charter of the French language. But s. 133 is an entrenched provision, not only forbidding modification by unilateral action of Parliament or of the Quebec Legislature

[Page 1027]

but also providing a guarantee to members of Parliament or of the Quebec Legislature and to litigants in the Courts of Canada or of Quebec that they are entitled to use either French or English in parliamentary or legislative assembly debates or in pleading (including oral argument) in the Courts of Canada or of Quebec.

Subject to consideration of the range of protec­tion given by s. 133 in the use of either French or English, there does not appear any need to expand any further on the main issue in this case. On matters of detail and of history, we are content to adopt the reasons of Deschênes CJ. as fortified by the Quebec Court of Appeal.

Dealing now with the question whether "regula­tions" issued under the authority of acts of the Legislature of Quebec are "Acts" within the purview of s. 133, it is apparent that it would truncate the requirement of s. 133 if account were not taken of the growth of delegated legislation. This is a case where the greater must include the lesser. Section 9 of the impugned provisions, in giving official status only to the French text of regula­tions as well as of statutes and s. 10 in providing for the subordinate position of an English version of bills, statutes and regulations appear to put all these instruments on an equal footing with respect to language and, consequently, towards s. 133.

There is, however, a more compelling answer not only to the question of the language of delegat­ed legislation but also to the question of the lan­guage of Court pleading, Court processes, oral argument before the Courts and Court judgments, and it is to be found in s. 7 of Chapter III of Title I of the Charter of the French language. The generality of s. 7, "French is the language of the legislature and the courts in Quebec" sweeps in the particulars spelled out in the succeeding ss. 8 to 13. It encompasses in its few and direct words what the succeeding sections say by way of detail. Indeed, as already pointed out, Chapter III of Title I, and especially s. 7 thereof, is a particular projection of Title I, Chapter I of the Charter of the French language, saying that "French is the

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official language of Quebec". Although as a matter of construction, the particular in a statute may modify or limit the general, nothing in ss. 8 to 13 indicates any modification or limitation of s. 7. If anything, there is an extension of the term "Courts" as it appears in s. 7 to include "bodies discharging judicial or quasi-judicial functions": see ss. 11 and 12. In s. 13, the reference is to "judgments ... by courts and by bodies discharg­ing judicial or quasi-judicial functions" in making only the French text of such judgments official. Again, this appears to envisage an enlarged appreciation of the meaning of "Courts of Quebec", as that term appears in s. 133.

Even if this not be the view of the Quebec Legislature in enacting ss. 11, 12 and 13 above-mentioned, the reference in s. 133 to "any of the Courts of Quebec" ought to be considered broadly as including not only so-called s. 96 Courts but also Courts established by the Province and administered by provincially-appointed Judges. It is not a long distance from this latter class of tribunal to those which exercise judicial power, although they are not courts in the traditional sense. If they are statutory agencies which are adjudicative, applying legal principles to the asser­tion of claims under their constituent legislation, rather than settling issues on grounds of expedien­cy or administrative policy, they are judicial bodies, however some of their procedures may differ not only from those of Courts but also from those of other adjudicative bodies. In the rudimen­tary state of administrative law in 1867, it is not surprising that there was no reference to non-curi­al adjudicative agencies. Today, they play a sig­nificant role in the control of a wide range of individual and corporate activities, subjecting them to various norms of conduct which are at the same time limitations on the jurisdiction of the agencies and on the legal position of those caught by them. The guarantee given for the use of French or English in Court proceedings should not be liable to curtailment by provincial substitution of adjudicative agencies for Courts to such extent

[Page 1029]

as it compatible with s. 96 of the British North America Act.

Two judgments of the Privy Council, which wrestled with similar questions of principle in the construction of the British North America Act, are, to some degree, apposite here. In Edwards v. Attorney General of Canada[8], the "persons" case (respecting the qualification of women for appointment to the Senate under s. 24), there are observa­tions by Lord Sankey of the need to give the the British North America Act a broad interpretation attuned to changing circumstances: "The British North America Act", he said, at p. 136, "planted in Canada a living tree capable of growth and expansion within its natural limits". Dealing, at this Court is here, with a constitutional guarantee, it would be overly-technical to ignore the modern development of non-curial adjudicative agencies which play so important a role in our society, and to refuse to extend to proceedings before them the guarantee of the right to use either French and English by those subject to their jurisdiction.

In Attorney General of Ontario v. Attorney General of Canada[9], (the Privy Council Appeals Reference), Viscount Jowitt said in the course of his discussion of the issues, that "it is, as their Lordships think, irrelevant that the question is one that might have seemed unreal at the date of the British North America Act. To such an organic statute the flexible interpretation must be given which changing circumstances require" (at p. 154).

[Page 1030]

Although there are clear points of distinction between these two cases and the issue of the scope of s. 133, in its reference to the Courts of Quebec, they nonetheless lend support to what is to us the proper approach to an entrenched provision, that is, to make it effective through the range of institu­tions which exercise judicial power, be they called courts or adjudicative agencies. In our opinion, therefore, the guarantee and requirements of s. 133 extend to both.

It follows that the guarantee in s. 133 of the use of either French or English "by any person or in any pleading or process in or issuing from ... all or any of the Courts of Quebec" applies to both ordinary Courts and other adjudicative tribunals. Hence, not only is the option to use either lan­guage given to any person involved in proceedings before the Courts of Quebec or its other adjudica­tive tribunals (and this covers both written and oral submissions) but documents emanating from such bodies or issued in their name or under their authority may be in either language, and this option extends to the issuing and publication of judgments or other orders.

In the result, the appeals are dismissed in both cases with costs to the plaintiffs as provided in the orders granting leave. There shall be no order as to costs either to or against any of the other parties.

Appeals dismissed with costs.

Solicitors for the appellant: Bilodeau, Flynn, Boissonneault & Roy, Montreal; Jean K. Samson, Quebec; Henri Brun, Quebec.

Solicitors for the respondents Blaikie et al.: Chait, Salomon, Gelber, Reis, Bronstein, Litvack, Echenberg & Lipper, Montreal; Johnston, Heenan & Blaikie, Montreal; André Brossard, Montreal.

Solicitors for the respondent Laurier: Wood & Aaron, Montreal.



[1] [1978] C.A. 351.

[2] [1978] C.S. 37, 85 D.L.R. (3d) 252.

[3] [1978] C.S. 37, 85 D.L.R. (3d) 252.

[4] [1978] C.A. 351.

[5] [1979] 4 W.W.R. 229.

[6] [1896] A.C. 600.

[7] [1975] 2 S.C.R. 182.

[8] [1930] A.C. 124.

[9] [1947] A.C. 127.

 

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