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Re Manitoba Language Rights, [1985] 1 S.C.R. 721

 

 

IN THE MATTER OF Section 55 of the Supreme Court Act, R.S.C. 1970, c. S‑19, as amended;

 

AND IN THE MATTER OF a Reference by the Governor in Council concerning certain language rights under Section 23 of the Manitoba Act, 1870, and Section 133 of the Constitution Act, 1867 and set out in Order‑in‑Council P.C. 1984‑1136 dated the 5th day of April 1984

 

File No.: 18606.

 

1984: June 11, 12, 13; 1985: June 13.

 

Present: Dickson C.J. and Beetz, Estey, McIntyre, Lamer, Wilson and Le Dain JJ.

 

reference by the governor in council

 

            Constitutional law ‑‑ Language guarantees ‑‑ Manitoba statutes to be enacted, printed and published in both English and French ‑‑ Whether or not s. 23 of Manitoba Act, 1870 mandatory or directory ‑‑ Whether or not statutes, current, repealed or spent, valid if constitutional linguistic requirements not met ‑‑ Extent of force or effect, if any, if statutes invalid ‑‑ Whether or not Act Respecting the Operation of Section 23 of the Manitoba Act in Regard to Statutes valid and of force or effect ‑‑ Manitoba Act, 1870, R.S.C. 1970, App. II, s. 23 ‑‑ Constitution Act, 1867, s. 133 ‑‑ Constitution Act, 1982, s. 52 ‑‑ An Act to Provide that the English Language shall be the Official Language of the Province of Manitoba, 1890 (Man.), c. 14 ‑‑ Act Respecting the Operation of Section 23 of the Manitoba Act in Regard to Statutes, 1980 (Man.), c. 3.

 

            The Governor General in Council by Order in Council P.C. 1984‑1136 dated April 5, 1984, in accordance with s. 55 of the Supreme Court Act, referred to this Court four questions. The questions and this Court's answers are:

 

Question 1‑‑Are the requirements of s. 133 of the Constitution Act, 1867 and of s. 23 of the Manitoba Act, 1870 respecting the use of both the English and French languages in

 

(a)the Records and Journals of the  Houses of the Parliament of Canada and  of the Legislatures of Quebec and  Manitoba, and

 

(b)the Acts of the Parliament of Canada  and of the Legislatures of Quebec and  Manitoba

 

mandatory?

 

Answer‑‑Yes.

 

Question 2‑‑Are those statutes and regulations of the Province of Manitoba that were not printed and published in both the English and French languages invalid by reason of s. 23 of the Manitoba Act, 1870?

 

Answer‑‑Yes, but, for the reasons given by the Court, the invalid current Acts of the Legislature will be deemed temporarily valid for the minimum period of time necessary for their translation, re‑enactment, printing and publication.

 

Question 3‑‑If the answer to question 2 is affirmative, do those enactments that were not printed and published in English and French have any legal force and effect, and if so, to what extent and under what conditions?

 

Answer‑‑The Acts of the Legislature that were not enacted, printed and published in English and French have no legal force and effect because they are invalid, but, for the reasons given by the Court, the current Acts of the Legislature will be deemed to have temporary force and effect for the minimum period of time necessary for their translation, re‑enactment, printing and publication.

 

Question 4‑‑Are any of the provisions of An Act Respecting the Operation of Section 23 of the Manitoba Act in Regard to Statutes, enacted by S.M. 1980, Ch. 3, inconsistent with the provisions of s. 23 of the Manitoba Act, 1870, and if so are such provisions, to the extent of such inconsistency, invalid and of no legal force and effect?

 

Answer‑‑If An Act Respecting the Operation of Section 23 of the Manitoba Act in Regard to Statutes, enacted by S.M. 1980, Ch. 3, was not enacted, printed and published in both official languages, then it is invalid and of no force and effect in its entirety.

 

            If it was enacted, printed and published in both official languages, then ss. 1 to 5 are invalid and of no force and effect.

 

                                                                              I

 

Question 1:

 

            The requirement that both English and French be used in the Records, Journals and Acts of Canada, Quebec and Manitoba, in s. 133 of the Constitution Act, 1867 and s. 23 of the Manitoba Act, 1870, is mandatory. The history and language of these sections indicate that the guarantee they entrench must be obeyed.

 

                                                                             II

 

Questions 2 and 3:

 

            The words "Acts of the Legislature" in s. 23 of the Manitoba Act, 1870 encompass all statutes, regulations, and delegated legislation of the Manitoba Legislature, enacted since 1890, which are covered by this Court's judgments in Attorney General of Quebec v. Blaikie, [1979] 2 S.C.R. 1016, and Attorney General of Quebec v. Blaikie, [1981] 1 S.C.R. 312.

 

            All of the unilingual Acts of the Legislature of Manitoba are, and always have been, invalid and of no force or effect. Section 23 of the Manitoba Act, 1870 entrenches a mandatory requirement to enact, print and publish all Acts of the Legislature in both official languages and, thus, establishes a constitutional duty on the Manitoba Legislature with respect to the manner and form of enactment of legislation. This duty protects the substantive rights of all Manitobans to equal access to the law in either French or English.

 

            Section 52 of the Constitution Act, 1982 does not alter the principles which have provided the foundation for judicial review over the years. In a case where constitutional manner and form requirements have not been complied with, the consequence of such non‑compliance continues to be invalidity. The words "of no force or effect" mean that a law thus inconsistent with the Constitution has no force or effect because it is invalid.

 

            The unilingual enactments of the Manitoba Legislature are inconsistent with s. 23 of the Manitoba Act, 1870 and are invalid and of no force or effect because the constitutionally required manner and form for their enactment has not been followed.

 

            The Court must declare the unilingual Acts of the Legislature of Manitoba to be invalid and of no force and effect. This declaration, however, without more, would create a legal vacuum with consequent legal chaos in the Province of Manitoba. The Manitoba Legislature has, since 1890, enacted nearly all of its laws in English only. The conclusion that all unilingual Acts of the Legislature of Manitoba are invalid and of no force or effect means that the positive legal order which has purportedly regulated the affairs of the citizens of Manitoba since 1890 is destroyed and the rights, obligations and any other effects arising under these laws are invalid and unenforceable. From the date of this judgment, the Province of Manitoba has an invalid and therefore ineffectual legal system until the Legislature is able to translate, re‑enact, print and publish its current laws in both official languages.

 

            The constitutional principle of the rule of law would be violated by these consequences. The principle of rule of law, recognized in the Constitution Acts of 1867 and 1982, has always been a fundamental principle of the Canadian constitutional order. The rule of law requires the creation and maintenance of an actual order of positive laws to govern society. Law and order are indispensable elements of civilized life. This Court must recognize both the unconstitutionality of Manitoba's unilingual laws and the Legislature's duty to comply with the supreme law of this country, while avoiding a legal vacuum in Manitoba and ensuring the continuity of the rule of law.

 

            There will be a period of time during which it would not be possible for the Manitoba Legislature to comply with its constitutional duty under s. 23 of the Manitoba Act, 1870. It is therefore necessary, in order to preserve the rule of law, to deem temporarily valid and effective the Acts of the Manitoba Legislature, which would be currently in force were it not for their constitutional defect. The period of temporary validity will run from the date of this judgment to the expiry of the minimum period necessary for translation, re‑enactment, printing and publishing.

 

            With respect to rights, obligations and any other effects which have purportedly arisen under repealed, spent or current unilingual Acts of the Manitoba Legislature, some will be enforceable and forever beyond challenge by the operation of legal doctrines such as the de facto doctrine, res judicata and mistake of law. Those rights, obligations and other effects not saved by the operation of these doctrines are deemed temporarily to have been, and to continue to be, valid, enforceable and beyond challenge until the expiry of the minimum period necessary for translation, re‑enactment, printing and publishing of the Acts of the Legislature of Manitoba under which they arose. At the termination of the minimum period, these rights, obligations and other effects will cease to have temporary validity and enforceability, unless the Acts under which they arose have been translated, re‑enacted, printed and published in both languages. As a consequence, to ensure the continuing validity and enforceability of rights, obligations and other effects not saved by the de facto or other doctrines, the repealed or spent Acts of the Legislature, under which these rights, obligations and other effects have purportedly arisen, may need to be re‑enacted, printed and published, and then again repealed, in both official languages.

 

            Temporary validity, however, will not apply to unilingual Acts of the Legislature passed after the date of this judgment. From the date of judgment, laws not enacted, printed and published in both languages will be invalid and of no force or effect ab initio.

 

            The Court, as presently equipped, is unable to determine the period during which it would not be possible for the Manitoba Legislature to comply with its constitutional duty. Following a request for determination from the Attorney General of Canada or the Attorney General of Manitoba, made within one hundred and twenty days of the date of judgment, the Court will set a special hearing, accept submissions from the Attorney General of Canada, the Attorney General of Manitoba as well as the other interveners, and make a determination of the minimum period necessary for translation, re‑enactment, printing and publishing of the Acts of the Manitoba Legislature.

 

                                                                            III

 

Question 4:

 

            An Act Respecting the Operation of Section 23 of the Manitoba Act in Regard to Statutes, 1980 (Man.), c. 3, is invalid and of no force and effect in its entirety if it was not enacted, printed and published in both official languages. In any event, ss. 1 to 5 are invalid and of no force or effect because they violate the rights guaranteed in s. 23 of the Manitoba Act, 1870.

 

Cases Cited

 

            Attorney General of Quebec v. Blaikie, [1979] 2 S.C.R. 1016, affirming [1978] C.A. 351, 95 D.L.R. (3d) 42, affirming [1978] C.S. 37, 85 D.L.R. (3d) 252; Attorney General of Quebec v. Blaikie, [1981] 1 S.C.R. 312, followed; Attorney General of the Republic v. Mustafa Ibrahim, [1964] Cyprus Law Reports 195; Special Reference No. 1 of 1955, P.L.R. 1956 W.P. 598, considered; Pellant v. Hebert, St. Boniface Co. Ct., March 9, 1892, reported at (1981), 12 R.G.D. 242; Bertrand v. Dussault, St. Boniface Co. Ct., January 30, 1909, reported at 77 D.L.R. (3d) 458; Re Forest and Registrar of Court of Appeal of Manitoba (1977), 77 D.L.R. (3d) 445; R. v. Forest (1976), 74 D.L.R. (3d) 704; Attorney General of Manitoba v. Forest, [1979] 2 S.C.R. 1032; Bilodeau v. Attorney General of Manitoba, [1981] 5 W.W.R. 393; Société Asbestos Ltée v. Société nationale de l’amiante, [1979] C.A. 342; Re Public Finance Corp. and Edwards Garage Ltd. (1957), 22 W.W.R. 312; Jones v. Attorney General of New Brunswick, [1975] 2 S.C.R. 182; Montreal Street Railway Co. v. Normandin, [1917] A.C. 170; Howard v. Bodington (1877), 2 P. 203; R. ex rel. Anderson v. Buchanan (1909), 44 N.S.R. 112; Bribery Commissioner v. Ranasinghe, [1965] A.C. 172; Amax Potash Ltd. v. Government of Saskatchewan, [1977] 2 S.C.R. 576; Re: Resolution to Amend the Constitution, [1981] 1 S.C.R. 753; Procureur général du Québec v. Collier, [1983] C.S. 366; Procureur général du Québec v. Brunet, J.E. 83‑510, rev'd on other grounds, J.E. 84‑62 (S.C.); Carl‑Zeiss‑Stiftung v. Rayner and Keeler Ltd. (No. 2), [1966] 2 All E.R. 536; Roncarelli v. Duplessis, [1959] S.C.R. 121; Reference re Disallowance and Reservation of Provincial Legislation, [1938] S.C.R. 71; Abbé de Fontaine’s Case (1431), Y.B. 9 H. VI, fol. 32; Scadding v. Lorant (1851), 3 H.L.C. 418, 10 E.R. 164; R. v. Slythe (1827), 6 B. & C. 240, 108 E.R. 441; Margate Pier Co. v. Hannam (1819), 3 B. & Ald. 266, 106 E.R. 661; O'Neil v. Attorney‑General of Canada (1896), 26 S.C.R. 122; Turtle v. Township of Euphemia (1900), 31 O.R. 404; R. v. Gibson (1896), 29 N.S.R. 4; R. v. Corporation of Bedford Level (1805), 6 East 356, 102 E.R. 1323; Parker v. Kett (1702), 1 Ld. Raym. 658, 91 E.R. 1338; Eadie v. Township of Brantford, [1967] S.C.R. 573; Texas v. White, 74 U.S. 700 (1868); Horn v. Lockhart, 84 U.S. 570 (1873); United States v. Insurance Companies, 89 U.S. 99 (1874); Baldy v. Hunter, 171 U.S. 388 (1898); Madzimbamuto v. Lardner‑Burke, [1969] 1 A.C. 645; Federation of Pakistan v. Tamizuddin Khan, P.L.R. 1956 W.P. 306; In re Initiative and Referendum Act, [1919] A.C. 935; Attorney‑General for Alberta v. Attorney‑General for Canada, [1947] A.C. 503, referred to.

 

Statutes and Regulations Cited

 

Act respecting a judgment rendered in the Supreme Court of Canada on 13 December 1979 on the language of the legislature and the courts in Québec, 1979 (Que.), c. 61.

 

Act Respecting the Operation of Section 23 of the Manitoba Act in Regard to Statutes, 1980 (Man.), c. 3.

 

Act to amend an Act Respecting the Operation of Section 23 of the Manitoba Act in Regard to Statutes, 1982 (Man.), c. 3, s. 1.

 

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

 

Colonial Laws Validity Act, 1865 (U.K.), 28 & 29 Vict., c. 63, s. 2.

 

Constitution Act, 1867, preamble, ss. 55, 57, 90, 92, 92A [en. Constitution Act, 1982, s. 50], 93, 95, 133.

 

Constitution Act, 1982, preamble, ss. 18(1), 41(a), 43, 52.

 

Interpretation Act, 1867 (Can.), 31 Vict., c. 1, s. 6(3).

 

Interpretation Act, R.S.C. 1970, c. I‑23, s. 28 "shall".

 

Manitoba Act, 1870, R.S.C. 1970, App. II, ss. 2, 14, 17, 23.

 

Statute of Westminster, 1931 (U.K.), 22 Geo. V, c. 4.

 

Supreme Court Act, R.S.C. 1970, c. S‑19, s. 55.

 

Authors Cited

 

Constantineau, A. The De Facto Doctrine, Toronto, Canada Law Book Co., 1910.

 

Dicey, A.V. The Law of the Constitution, 10th ed., London, MacMillan & Co. Ltd., 1959.

 

Honore, A.M. "Reflections on Revolutions" (1967), 2 Irish Jurist 268.

 

Jennings, W.I. The Law and the Constitution, 5th ed., London, University of London Press, 1959.

 

Odgers’ Construction of Deeds and Statutes, 5th ed. by G. Dworkin, London, Sweet & Maxwell, 1967.

 

Raz, J. The Authority of Law, Oxford, Clarendon Press, 1979.

 

Stavsky, M.M. "The Doctrine of State Necessity in Pakistan" (1983), 16 Cornell Int. L.J. 341.

 

Wade, E.C.S. and G.G. Phillips. Constitutional and Administrative Law, 9th ed., by A.W. Bradley, London, Longman, 1977.  

 

            REFERENCE by the Governor General in Council, pursuant to s. 55 of the Supreme Court Act, concerning certain language rights under s. 23 of the Manitoba Act, 1870 and s. 133 of the Constitution Act, 1867.

 

            Pierre Genest, Q.C., Edward R. Sojonky, Q.C., and Peter W. Hogg, Q.C., for the Attorney General of Canada.

 

            Joseph Eliot Magnet, for the Société franco‑manitobaine.

 

            Gérald‑A. Beaudoin, Q.C., for the Fédération des francophones hors Québec.

 

            Jean‑K. Samson et André Binette, for the Attorney General of Quebec.

 

            Vaughan L. Baird, Q.C., for Roger Bilodeau.

 

            Stephen A. Scott and Warren J. Newman, for Alliance Québec.

 

            Walter J. Roustan, for the Freedom of Choice Movement.

 

            A. Kerr Twaddle, Q.C., and William S. Gange, for the Attorney General of Manitoba.

 

            D. C. H. McCaffrey, Q.C., Colin J. Gillespie and J. F. Reeh Taylor, Q.C., for Douglas L. Campbell, James A. Richardson, Cecil Patrick Newbound, Russell Doern, Herbert Schulz and Patricia Maltman.

 

            The following is the judgment delivered by

 

The Court

 

                                                                              I

 

The Reference

 

1.         This Reference combines legal and constitutional questions of the utmost subtlety and complexity with political questions of great sensitivity. The proceedings were initiated by Order in Council, P.C. 1984‑1136 dated April 5, 1984, pursuant to s. 55 of the Supreme Court Act, R.S.C. 1970, c. S‑19. The Order in Council reads:

 

WHEREAS the Minister of Justice reports;

 

1. That it is important to resolve as expeditiously as possible legal issues relating to certain language rights under section 23 of the Manitoba Act, 1870 and section 133 of the Constitution Act, 1867.

 

2. That in order that such legal issues be addressed without delay, it is considered necessary that the opinion of the Supreme Court of Canada be obtained in relation to the following questions, namely:

 

Question #1

 

Are the requirements of section 133 of the Constitution Act, 1867 and of section 23 of the Manitoba Act, 1870 respecting the use of both the English and French languages in

 

(a)the Records and Journals of the Houses of the Parliament of Canada and of the Legislatures of Quebec and Manitoba, and

 

(d) the Acts of the Parliament of Canada and of the Legislatures of Quebec and Manitoba

 

mandatory?

 

            Question #2

 

Are those statutes and regulations of the Province of Manitoba that were not printed and published in both the English and French languages invalid by reason of section 23 of the Manitoba Act, 1870?

 

            Question #3

 

If the answer to question 2 is affirmative, do those enactments that were not printed and published in English and French have any legal force and effect, and if so, to what extent and under what conditions?

 

            Question #4

 

Are any of the provisions of An Act Respecting the Operation of section 23 of the Manitoba Act in Regard to Statutes, enacted by S.M. 1980, Ch. 3, inconsistent with the provisions of section 23 of the Manitoba Act, 1870, and if so are such provisions, to the extent of such inconsistency, invalid and of no legal force and effect?

 

THEREFORE, HIS EXCELLENCY THE GOVERNOR GENERAL IN COUNCIL, on the recommendation of the Minister of Justice, pursuant to section 55 of the Supreme Court Act, is pleased hereby to refer the questions immediately above set forth to the Supreme Court of Canada for hearing and consideration.

 

2.         An order of this Court dated April 10, 1984 directed that the Attorney General of Canada have carriage of the Reference. Leave to intervene was granted to: the Attorneys General of the Provinces of Manitoba and Quebec; Société franco‑manitobaine; Alliance Québec, Alliance for Language Communities in Quebec (formerly Positive Action Committee); Fédération des francophones hors Québec; the Freedom of Choice Movement; Roger Joseph Albert Bilodeau; Douglas L. Campbell, James A. Richardson, Cecil Patrick Newbound, Russell Doern, Herbert Schulz, and Patricia Maltman, residents of Manitoba and persons interested in the questions before the Court.

 

3.         Section 23 of the Manitoba Act, 1870 provides:

 

            23. 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.         The provisions of s. 133 of the Constitution Act, 1867 are virtually identical to those of s. 23 of the Manitoba Act, 1870. Section 133 provides:

 

            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 be printed and published in both those Languages.

 

                                                                             II

 

Manitoba's Language Legislation

 

5.         Section 23 of the Manitoba Act, 1870 was the culmination of many years of co‑existence and struggle between the English, the French, and the Metis in Red River Colony, the predecessor to the present day Province of Manitoba. Though the region was originally claimed by the English Hudson's Bay Company in 1670 under its Royal Charter, for much of its pre‑confederation history, Red River Colony was inhabited by anglophones and francophones in roughly equal proportions. On November 19, 1869 the Hudson's Bay Company issued a deed of surrender to transfer the North‑West Territories, which included the Red River Colony, to Canada. The transfer of title took effect on July 15, 1870.

 

6.         Between November 19, 1869 and July 15, 1870, the provisional government of Red River Colony attempted to unite the various segments of the Red River colony and drew up a "Bill of Rights" to be used in negotiations with Canada. A Convention of Delegates was elected in January, 1870 to prepare the terms upon which Red River Colony would join the Confederation. The Convention was made up of equal numbers of anglophones and francophones elected from the various French and English parishes.

 

7.         The final version of the Bill of Rights which was used by the Convention delegates in their negotiations with Ottawa, contained these provisions:

 

That the English and French languages be common in the Legislature, and in the courts, and that all public documents, as well as all Acts of the Legislature, be published in both languages.

 

That the Judge of the Superior Court speak the English and French languages.

 

These clauses were re‑drafted by the Crown lawyers in Ottawa and included in a Bill to be introduced in Parliament. The Bill passed through Parliament with no opposition from either side of the House, resulting in s. 23 of the Manitoba Act, 1870. In 1871 this Act was entrenched in the British North America Act, 1871 (renamed Constitution Act, 1871 in the Constitution Act, 1982, s. 53). The Manitoba Act, 1870 is now entrenched in the Constitution of Canada by virtue of s. 52(2)(b) of the Constitution Act, 1982.

 

8.         In 1890 An Act to Provide that the English Language shall be the Official Language of the Province of Manitoba, 1890 (Man.), c. 14 (hereinafter the Official Language Act, 1890), was enacted by the Manitoba Legislature. This Act provides:

 

            1 Any statute or law to the contrary notwithstanding, the English language only shall be used in the records and journals of the House of Assembly for the Province of Manitoba, and in any pleadings or process in or issuing from any court in the Province of Manitoba. The Acts of the Legislature of the Province of Manitoba need only be printed and published in the English language.

 

            2 This Act shall only apply so far as this Legislature has jurisdiction so to enact, and shall come into force on the day it is assented to.

 

9.         Upon enactment of the Official Language Act, 1890 the Province of Manitoba ceased publication of the French version of Legislative Records, Journals and Acts.

 

                                                                            III

 

Legal Challenges to Manitoba's Language Legislation

 

10.       The Official Language Act, 1890 was challenged before the Manitoba courts soon after it was enacted. It was ruled ultra vires in 1892 by Judge Prud'homme of the County Court of St. Boniface, who stated: [TRANSLATION] "I am therefore of the view that c. 14, 53 Vict. is ultra vires the Legislature of Manitoba and that section 23 of the Manitoba Act cannot be changed and even less repealed by the Legislature of that province": Pellant v. Hebert, first published in Le Manitoba (a French language newspaper), March 9, 1892, reported in (1981), 12 R.G.D. 242. This ruling was not followed by the Legislature or the Government of Manitoba. The Official Language Act, 1890 remained in successive revisions of the Statutes of Manitoba; the Government did not resume bilingual publication of Legislative Records, Journals or Acts.

 

11.       In 1909, the Official Language Act, 1890 was again challenged in Manitoba Courts and again ruled unconstitutional: Bertrand v. Dussault, January 30, 1909, County Court of St. Boniface (unreported), reproduced in Re Forest and Registrar of Court of Appeal of Manitoba (1977), 77 D.L.R. (3d) 445 (Man. C.A.), at pp. 458‑62. According to Monnin J.A. in Re Forest, supra, at p. 458, "This latter decision, not reported, appears to have been unknown or ignored".

 

12.       In 1976, a third attack was mounted against the Official Language Act, 1890 and the Act was ruled unconstitutional: R. v. Forest (1976), 74 D.L.R. (3d) 704 (Man. Co. Ct.) Nonetheless, the Official Language Act, 1890 remained on the Manitoba statute books; bilingual enactment, printing and publication of Acts of the Manitoba Legislature was not resumed.

 

13.       In 1979, the constitutionality of the Official Language Act, 1890 was tested before this Court. On December 13, 1979, in Attorney General of Manitoba v. Forest, [1979] 2 S.C.R. 1032, this Court, in unanimous reasons, held that the provisions of Manitoba's Official Language Act, 1890 were in conflict with s. 23 of the Manitoba Act, 1870 and unconstitutional.

 

14.       On July 9, 1980, after the decision of this Court in Forest, the Legislature of Manitoba enacted An Act Respecting the Operation of Section 23 of the Manitoba Act in Regard to Statutes, 1980 (Man.), c. 3. The validity of this Act is the subject of question 4 of this Reference.

 

15.       In the fourth session (1980) and the fifth session (1980‑1981) of the thirty‑first Legislature of Manitoba, the vast majority of the Acts of the Legislature of Manitoba were enacted, printed and published in English only.

 

16.       Since the first session of the thirty‑second Legislature of Manitoba (1982), the Acts of the Legislature of Manitoba have been enacted, printed and published in both English and French. However, those Acts that only amend Acts that were enacted, printed and published in English only, and private Acts, have in most instances been enacted in English only.

 

17.       In Bilodeau v. Attorney General of Manitoba, [1981] 5 W.W.R. 393, the Manitoba Court of Appeal held that Manitoba's Highway Traffic Act, R.S.M. 1970, c. H60, and The Summary Convictions Act, R.S.M. 1970, c. S230, although enacted in English only, were valid. This decision is under appeal to this Court*.

 

*Judgment in Bilodeau v. Attorney General of Manitoba will be delivered at the time of delivery of judgment in MacDonald v. City of Montreal.

 

 18.      On July 4, 1983, the Attorney General of Manitoba introduced into the Legislative Assembly of Manitoba a resolution to initiate a constitutional amendment under s. 43 of the Constitution Act, 1982. The purpose of the resolution was to amend the language provisions of the Manitoba Act, 1870. The second session of the thirty‑second Legislature was prorogued on February 27, 1984, without the resolution having been adopted.

 

19.       It might also be mentioned that on December 13, 1979, in Attorney General of Quebec v. Blaikie, [1979] 2 S.C.R. 1016 (Blaikie No. 1), this Court held that the provisions of Quebec's Charter of the French language (Bill 101), enacted in 1977, were in conflict with s. 133 of the Constitution Act, 1867. The Charter purported to provide for the introduction of Bills in the legislature in French only, and for the enactment of statutes in French only. The day after the decision of this Court in Blaikie No. 1, the Legislature of Quebec re‑enacted in both languages all those Quebec statutes that had been enacted in French only. See: An Act respecting a judgment rendered in the Supreme Court of Canada on 13 December 1979 on the language of the legislature and the courts in Québec, 1979 (Que.), c. 61.

 

20.       The implication of this Court's holdings in Blaikie No. 1, supra, and Forest, supra, was that provincial legislation passed in accordance with the ultra vires statutes, i.e. enacted in one language only, was itself in derogation of the constitutionally entrenched language provisions of the Constitution Act, 1867 and the Manitoba Act, 1870, and therefore invalid. In Société Asbestos Ltée v. Société nationale de l'amiante, [1979] C.A. 342, the Quebec Court of Appeal held, in a judgment also rendered December 13, 1979, that this was indeed the consequence of unilingual enactment and struck down two statutes that had not been enacted in English.

 

21.       In Attorney General of Quebec v. Blaikie, [1981] 1 S.C.R. 312 (Blaikie No. 2), this Court elaborated its earlier decision in Blaikie No. 1 by holding that regulations adopted by or subject to the approval of the Government of Quebec and Rules of Court were subject to the requirements of s. 133. However, regulations adopted by subordinate bodies, outside the Government of Quebec, and not subject to the approval of the Government of Quebec, as well as municipal by‑laws and school board by‑laws, were not subject to the requirements of s. 133.

 

22.       The Manitoba Court of Appeal, in Bilodeau, supra, was faced with a similar challenge to unilingually enacted legislation. That Court held that the unilingual legislation of the Manitoba Legislature was not invalid. The majority (per Freedman C.J.M.) held that the requirement for bilingual enactment was directory rather than mandatory and that therefore the consequence of disobedience was not invalidity. Monnin J.A. thought that s. 23 was mandatory but would have applied the doctrine of state necessity (of which more anon) to prevent invalidity.

 

                                                                            IV

 

Question 1

 

The Mandatory Nature of s. 133 of the Constitution Act, 1867 and s. 23 of the Manitoba Act, 1870

 

23.       Question No. 1 of this Reference asks whether the requirements of s. 133 of the Constitution Act, 1867 and s. 23 of the Manitoba Act, 1870, respecting the use of both English and French in the Records, Journals and Acts of the Parliament of Canada and of the Legislatures of Quebec and Manitoba, are "mandatory".

 

24.       The Attorney General of Manitoba responds to this question in his written argument with the plain assertion that:

 

            Since the decisions of this Court in Attorney General of Quebec v.  Blaikie, [1979] 2 S.C.R. 1016 and Attorney General of Manitoba v. Forest, [1979] 2 S.C.R. 1032 it is beyond dispute that statutes of the Parliament of Canada, of the National Assembly of Quebec and of the Legislature of Manitoba are required to be enacted in both the English and the French languages. The requirement is imperative, rather than permissive, in the sense that the legislative bodies have no option in the matter.

 

and later:

 

            Obviously it was intended that the requirement of enactment in both languages be observed. The relevant question is: What is the consequence of non‑observance?

 

 

The consequence of non‑observance will be addressed when questions 2 and 3 are under consideration.

 

25.       For present purposes, it seems clear that the bilingual record‑keeping and the printing and publication requirements of s. 23 of the Manitoba Act, 1870 and s. 133 of the Constitution Act, 1867 are mandatory in the sense that they were meant to be obeyed.

 

26.       Section 23 of the Manitoba Act, 1870, provides that both English and French "shall be used in the ... Records and Journals" of the Manitoba Legislature. It further provides that "[t] he Acts of the Legislature shall be printed and published in both those languages". Section 133 of the Constitution Act, 1867, is strikingly similar. It provides that both English and French "shall be used in the respective Records and Journals" of Parliament and the Legislature of Quebec. It also provides that "[t] he Acts of the Parliament of Canada and the Legislature of Quebec shall be printed and published in both those Languages".

 

27.       As used in its normal grammatical sense, the word "shall" is presumptively imperative. See Odgers' Construction of Deeds and Statutes (5th ed. 1967) at p. 377; The Interpretation Act, 1867 (Can.), 31 Vict., c. 1, s. 6(3); Interpretation Act, R.S.C. 1970, c. I‑23, s. 28 ("shall is to be construed as imperative"). It is therefore incumbent upon this Court to conclude that Parliament, when it used the word "shall" in s. 23 of the Manitoba Act, 1870 and s. 133 of the Constitution Act, 1867, intended that those sections be construed as mandatory or imperative, in the sense that they must be obeyed, unless such an interpretation of the word "shall" would be utterly inconsistent with the context in which it has been used and would render the sections irrational or meaningless. See, e.g. Re Public Finance Corp. and Edwards Garage Ltd. (1957), 22 W.W.R. 312, p. 317 (Alta. S.C.)

 

28.       There is nothing in the history or the language of s. 23 of the Manitoba Act, 1870 or s. 133 of the Constitution Act, 1867 to indicate that "shall" was not used in its normal imperative sense. On the contrary, the evidence points ineluctably to the conclusion that the word "shall" was deliberately and carefully chosen by Parliament for the express purpose of making the bilingual record‑keeping and printing and publication requirements of those sections obligatory. In particular, Parliament's use of the presumptively imperative word "shall" twice in s. 23 of the Manitoba Act, 1870 and twice in s. 133 of the Constitution Act, 1867 contrasts starkly with its use of the presumptively permissive word "may" twice in the same sections. Section 23 provides that either English or French "may be used" by anyone in the debates of the Manitoba Legislature and that either language "may be used" by anyone in the Manitoba courts. Similarly, s. 133 provides that either English or French "may be used" by anyone in the debates of Parliament and the Legislature of Quebec, and in the courts of Canada and Quebec.

 

29.       The French versions of both sections leave no doubt that the choice of these contrasting terms was deliberate. In the French version of s. 23, "shall" appears as "sera obligatoire" and "seront", while "may" appears as "sera facultatif" and "pourra être ... à faculté". Similarly, in the French version of s. 133, "shall" is expressed as "sera obligatoire" at one point, and as "devront être" at another, while "may" is expressed as "sera facultatif" in the first clause in which it appears and as "pourra être ... à faculté" in the second.

 

30.       In Blaikie v. Attorney General of Quebec (1978), 85 D.L.R. (3d) 252 (Que. S.C.), at p. 260, Deschênes C.J.S.C. had this to say about the may/shall dichotomy in s. 133 of the Constitution Act, 1867:

 

The Imperial Parliament has passed s. 133 with, from all evidence, extreme care and even the most mildly attentive observer cannot help but be struck by the alternation of the means of expression that are found in considering the use of the two languages: first part, `Either ... may'; second part, `Both ... shall'; third part, `Either ... may'; fourth part, `Shall ... both'.

 

            The Court is totally incapable of finding in the second part of s. 133 justification for the alternates or the sequence of the languages that the Attorney‑General of Quebec suggests can be read there: this is not one or the other language as a choice, but the two at the same time which must be used in the records and journals of the Legislature.

 

(Emphasis added.)

 

See also Jones v. Attorney General of New Brunswick, [1975] 2 S.C.R. 182, at pp. 192‑93.

 

31.       If more evidence of Parliament's intent is needed, it is necessary only to have regard to the purpose of both s. 23 of the Manitoba Act, 1870 and s. 133 of the Constitution Act, 1867, which was to ensure full and equal access to the legislatures, the laws and the courts for francophones and anglophones alike. The fundamental guarantees contained in the sections in question are constitutionally entrenched and are beyond the power of the provinces of Quebec or Manitoba to amend unilaterally: Blaikie No. 1, supra; Attorney General of Manitoba v. Forest, supra. Those guarantees would be meaningless and their entrenchment a futile exercise were they not obligatory.

 

32.       That this was recognized by the drafters of s. 133, after which s. 23 was modeled, is clear from the former section's legislative history. Early drafts of s. 133 used the permissive word "may". This generated considerable concern and comment during the Confederation Debates, and in the third draft of s. 133 in February 1867 the word "may" was replaced by the word "shall" in the provision regarding the use of both languages in the records and journals of Parliament and the Legislature of Quebec. In the final draft of s. 133 of the British North America Act, 1867 (as it was then called) the provision for printing and publication of all laws in both languages was added, the word "shall" again being used.

 

33.       The conclusion seems inescapable that the drafters of the Constitution Act, 1867 deliberately selected the imperative term "shall" in preference to the permissive term "may" because they intended s. 133's language guarantees to be just that‑‑guarantees. And the use by Parliament only three years later of nearly identical language in s. 23 of the Manitoba Act, 1870 is strong evidence of a similar intendment with regard to the language provisions of that Act. The requirements of s. 133 of the Constitution Act, 1867 and of s. 23 of the Manitoba Act, 1870 respecting the use of both English and French in the Records, Journals and Acts of Parliament and the Legislatures of Quebec and Manitoba are "mandatory" in the normally accepted sense of that term. That is, they are obligatory. They must be observed.

 

34.       Nonetheless, it has been argued by the Attorney General of Manitoba that, though the words of s. 23 of the Manitoba Act, 1870 and s. 133 of the Constitution Act, 1867 are mandatory in the common grammatical sense, they are only directory in the legal sense and, thus, laws in violation of these provisions will not necessarily be invalid. He states in his factum:

 

            The Courts have drawn a distinction between requirements which are said to be "directory" and those which are said to be "mandatory". The terminology used has not always been consistent and mandatory requirements have been referred to as "imperative" or "obligatory". Non‑compliance with a directory requirement does not result in what was done having no effect whereas if a mandatory requirement is not complied with all of what is done is a nullity.

 

The Attorney General goes on to argue that the requirements of s. 23 of the Manitoba Act, 1870 and s. 133 of the Constitution Act, 1867, are directory rather than mandatory.

 

35.       A distinction between statutory provisions that are mandatory in the sense that failure to comply with them will lead to invalidity of the act in question, and directory, in the sense that failure to comply will not necessarily lead to such invalidity, is one that is found in Anglo‑Canadian law. The most commonly cited formulation is Sir Arthur Channell's in Montreal Street Railway Co. v. Normandin, [1917] A.C. 170 (P.C.), at pp. 174‑75:

 

The question whether provisions in a statute are directory or imperative has very frequently arisen in this country, but it has been said that no general rule can be laid down and that in every case the object of the statute must be looked at .... When the provisions of a statute relate to the performance of a public duty and the case is such that to hold null and void acts done in neglect of this duty would work serious general inconvenience, or injustice to persons who have no control over those entrusted with the duty, and at the same time would not promote the main object of the Legislature, it has been the practice to hold such provisions to be directory only, the neglect of them, though punishable, not affecting the validity of the acts done.

 

See also Howard v. Bodington (1877), 2 P. 203 at p. 210.

 

36.       The doctrinal basis of the mandatory/directory distinction is difficult to ascertain. The "serious general inconvenience or injustice" of which Sir Arthur Channell speaks in Montreal Street Railway Co. v. Normandin, supra, appears to lie at the root of the distinction as it is applied by the courts. In Russel J.'s words (R. ex rel. Anderson v. Buchanan (1909), 44 N.S.R. 112 (C.A.), at p. 130):

 

I do not profess to be able to draw the distinction between what is directory and what is imperative, and I find that I am not alone in suspecting that, under the authorities, a provision may become directory if it is very desirable that compliance with it should not have been omitted, when that same provision would have been held to be imperative if the necessity had not arisen for the opposite ruling.

 

            The temptation is very great, where the consequences of holding a statute to be imperative are seriously inconvenient, to strain a point in favor of the contention that it is mere directory ....

 

37.       There is no authority in Canada for applying the mandatory/directory doctrine to constitutional provisions. It is our belief that the doctrine should not be applied when the constitutionality of legislation is in issue. This was the position of Monnin J.A. of the Manitoba Court of Appeal, dissenting on this point in Bilodeau, supra, at pp. 405‑07:

 

I see no necessity to import into this argument the notion of directory legislation as opposed to mandatory legislation. Unfortunately, this court raised it in A.G. Man. v. Forest, supra, at p. 247, but I am certain that this theory has been put to rest by the two decisions of the Supreme Court of Canada on the matter, especially in Blaikie, supra. The Supreme Court of Canada did not call to its assistance such theories, and declared that in respect to the province of Quebec all statutes must be published in both languages.

 

                                                                             ...

 

...the legislation is clear, and speaks of "shall be used" and "shall be printed". There is nothing of a directory nature in that language. Furthermore, entrenched linguistic rights are by nature mandatory and never directory. If they were directory only, the risk is that they would never be enjoyed or be of any use to those to whom they were addressed. If it were merely directory it would fly in the face of entrenchment, which, but by its very nature, is mandatory. The authorities submitted by counsel on the mandatory or directory nature of legislation has [sic] no application to entrenched rights. Violence to the constitution cannot be tolerated.

 

(Emphasis added.)

 

38.       The decisions of this Court in Blaikie No. 1, supra, and Forest, supra, referred to by Monnin J.A. in the above excerpt are not the only constitutional cases in which the mandatory/directory distinction has not been applied. In Bribery Commissioner v. Ranasinghe, [1965] A.C. 172, for example, the Privy Council did not mention the distinction in ruling that legislation which had not been enacted in compliance with the appropriate constitutional "manner and form" requirements was invalid. Reference could also be made to the numerous decisions of American courts striking down legislation as unconstitutional, without bothering to discuss the mandatory/directory distinction, even though the distinction figures prominently in the American law on statutory construction.

 

39.       More important than the lack of authority to support the application of the mandatory/directory distinction to constitutional provisions, however, is the harm that would be done to the supremacy of Canada's Constitution if such a vague and expedient principle were used to interpret it. It would do great violence to our Constitution to hold that a provision on its face mandatory, should be labelled directory on the ground that to hold otherwise would lead to inconvenience or even chaos. Where there is no textual indication that a constitutional provision is directory and where the words clearly indicate that the provision is mandatory, there is no room for interpreting the provision as directory.

 

40.       In answer to Question 1, s. 23 of the Manitoba Act, 1870 and s. 133 of the Constitution Act, 1867 are mandatory.

 

                                                                             V

 

Questions 2 and 3

 

41.       Question 2 asks whether the unilingual statutes and regulations of Manitoba are invalid. Question 3 asks about the force and effect of these statutes and regulations if they are found to be invalid. Before addressing the consequences of the Manitoba Legislature's failure to enact its laws in both French and English, it will be necessary to determine what is encompassed by the words "Acts of the Legislature" in s. 23 of the Manitoba Act, 1870.

 

A)        The Meaning of “Acts of the Legislature”

 

42.       The requirements of s. 23 of the Manitoba Act, 1870 pertain to "Acts of the Legislature". These words are, in all material respects, identical to those found in s. 133 of the Constitution Act, 1867. As we have already indicated, in Blaikie No. 2, supra, this Court held that s. 133 applied to regulations enacted by the Government of Quebec, a Minister of the Government or a group of Ministers and to regulations of the civil administration and of semi‑public agencies which required the approval of that Government, a Minister or group of Ministers for their legal effect. It was emphasized that only those regulations which could properly be called "delegated legislation" fell within the scope of s. 133; rules or directives of internal management did not. It was also held that s. 133 applied to rules of practice enacted by courts and quasi‑judicial tribunals, but that it did not apply to the by‑laws of municipal bodies or the regulations of school bodies.

 

43.       Given the similarity of the provisions, the range of application of s. 23 of the Manitoba Act, 1870, should parallel that of s. 133 of the Constitution Act, 1867. All types of subordinate legislation that in Quebec would be subject to s. 133 of the Constitution Act, 1867, are, in Manitoba, subject to s. 23 of the Manitoba Act, 1870.

 

44.       In this judgment, all references to "Acts of the Legislature" are intended to encompass all statutes, regulations and delegated legislation of the Manitoba Legislature, enacted since 1890, that are covered by this Court's judgments in Blaikie No. 1 and Blaikie No. 2.

 

B) The Consequences of the Manitoba Legislature’s Failure to Enact, Print and Publish in both Languages

 

45.       Section 23 of the Manitoba Act, 1870 entrenches a mandatory requirement to enact, print, and publish all Acts of the Legislature in both official languages (see Blaikie No. 1, supra). It establishes a constitutional duty on the Manitoba Legislature with respect to the manner and form of enactment of its legislation. This duty protects the substantive rights of all Manitobans to equal access to the law in either the French or the English language.

 

46.       Section 23 of the Manitoba Act, 1870 is a specific manifestation of the general right of Franco‑Manitobans to use their own language. 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.

 

47.       The constitutional entrenchment of a duty on the Manitoba Legislature to enact, print and publish in both French and English in s. 23 of the Manitoba Act, 1870 confers upon the judiciary the responsibility of protecting the correlative language rights of all Manitobans including the Franco‑Manitoban minority. The judiciary is the institution charged with the duty of ensuring that the government complies with the Constitution. We must protect those whose constitutional rights have been violated, whomever they may be, and whatever the reasons for the violation.

 

48.       The Constitution of a country is a statement of the will of the people to be governed in accordance with certain principles held as fundamental and certain prescriptions restrictive of the powers of the legislature and government. It is, as s. 52 of the Constitution Act, 1982 declares, the "supreme law" of the nation, unalterable by the normal legislative process, and unsuffering of laws inconsistent with it. The duty of the judiciary is to interpret and apply the laws of Canada and each of the provinces, and it is thus our duty to ensure that the constitutional law prevails.

 

49.       As this Court said in Amax Potash Ltd. v. Government of Saskatchewan, [1977] 2 S.C.R. 576, at p. 590:

 

            A state, it is said, is sovereign and it is not for the Courts to pass upon the policy or wisdom of legislative will. As a broad statement of principle that is undoubtedly correct, but the general principle must yield to the requisites of the constitution in a federal state. By it the bounds of sovereignty are defined and supremacy circumscribed. The Courts will not question the wisdom of enactments which, by the terms of the Canadian Constitution are within the competence of the Legislatures, but it is the high duty of this Court to insure that the legislatures do not transgress the limits of their constitutional mandate and engage in the illegal exercise of power.

 

(Emphasis added.)

 

See also Re: Resolution to Amend the Constitution, [1981] 1 S.C.R. 753 (the Patriation Reference), at pp. 841, 848, 877.

 

50.       Since April 17, 1982, the mandate of the judiciary to protect the Constitution has been embodied in s. 52 of the Constitution Act, 1982. This section reads:

 

            52. (1) The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.

 

Prior to enactment of the Constitution Act, 1982, the governing provision was, pursuant to the Statute of Westminster, 1931, s. 2 of the Colonial Laws Validity Act, 1865, 1865 (U.K.), 28 & 29 Vict., c. 63, which provides:

 

            2. Any Colonial Law which is or shall be in any respect repugnant to the Provisions of any Act of Parliament extending to the Colony to which such Law may relate, or repugnant to any Order or Regulation made under Authority of such Act of Parliament, or having in the Colony the Force and Effect of such Act, shall be read subject to such Act, Order, or Regulation, and shall, to the Extent of such Repugnancy, but not otherwise, be and remain absolutely void and inoperative.

 

(Emphasis added.)

 

51.       The constitutional jurisprudence, developed under the Colonial Laws Validity Act, 1865, was based on the invalidity doctrine. If Parliament or a provincial legislature was ultra vires its constitutionally allocated powers in enacting a certain Act, then the repugnancy of that Act with the provisions of the British North America Act, 1867 would mean that the Act was "absolutely void and inoperative".

 

52.       Section 52 of the Constitution Act, 1982 does not alter the principles which have provided the foundation for judicial review over the years. In a case where constitutional manner and form requirements have not been complied with, the consequence of such non‑compliance continues to be invalidity. The words "of no force or effect" mean that a law thus inconsistent with the Constitution has no force or effect because it is invalid.

 

53.       Canadian courts have been unanimous in finding that failure to respect mandatory requirements to enact, print and publish statutes and regulations in both official languages leads to inconsistency and thus invalidity. See, Société Asbestos Ltée v. Société nationale de l’amiante, supra; Procureur général du Québec v. Collier, [1983] C.S. 366; Procureur général du Québec v. Brunet, J.E. 83‑510, reversed on other grounds, J.E. 84‑62 (S.C.) These cases accord with the general principle that failure to comply with constitutional provisions dealing with the manner and form of the enactment of legislation will result in inconsistency and thus invalidity. See Bribery Commissioner v. Ranasinghe, supra.

 

54.       In the present case the unilingual enactments of the Manitoba Legislature are inconsistent with s. 23 of the Manitoba Act, 1870 since the constitutionally required manner and form for their enactment has not been followed. Thus they are invalid and of no force or effect.

 

C) The Rule of Law

 

1. The Principle

 

55.       The difficulty with the fact that the unilingual Acts of the Legislature of Manitoba must be declared invalid and of no force or effect is that, without going further, a legal vacuum will be created with consequent legal chaos in the Province of Manitoba. The Manitoba Legislature has, since 1890, enacted nearly all of its laws in English only. Thus, to find that the unilingual laws of Manitoba are invalid and of no force or effect would mean that only laws enacted in both French and English before 1890, would continue to be valid, and would still be in force even if the law had purportedly been repealed or amended by a post‑1890 unilingual statute; matters that were not regulated by laws enacted before 1890 would now be unregulated by law, unless a pre‑confederation law or the common law provided a rule.

 

56.       The situation of the various institutions of provincial government would be as follows: the courts, administrative tribunals, public officials, municipal corporations, school boards, professional governing bodies, and all other bodies created by law, to the extent that they derive their existence from or purport to exercise powers conferred by Manitoba laws enacted since 1890 in English only, would be acting without legal authority.

 

57.       Questions as to the validity of the present composition of the Manitoba Legislature might also be raised. Under the Manitoba Act, 1870, the Legislative Assembly was to be composed of 24 members (s. 14), and voters were to be male and over 21 (s. 17). By laws enacted after 1890 in English only, the size of the Legislative Assembly was increased to 57 members, and all persons, both women and men, over 18 were granted the right to vote: see Act to amend "The Manitoba Election Act", 1916 (Man.), c. 36; Act to amend "The Election Act", 1969 (Man.), 2nd Sess., c. 7; The Legislative Assembly Act, R.S.M. 1970, c. L110, s. 4(1). If these laws are invalid and of no force or effect, the present composition of the Manitoba Legislature might be invalid. The invalidity of the post‑1890 laws would not touch the existence of the Legislature or its powers since these are matters of federal constitutional law: Constitution Act, 1867, ss. 92, 92A, 93, 95; Manitoba Act, 1870, s. 2.

 

58.       Finally, all legal rights, obligations and other effects which have purportedly arisen under all Acts of the Manitoba Legislature since 1890 would be open to challenge to the extent that their validity and enforceability depends upon a regime of unconstitutional unilingual laws.

 

59.       In the present case, declaring the Acts of the Legislature of Manitoba invalid and of no force or effect would, without more, undermine the principle of the rule of law. The rule of law, a fundamental principle of our Constitution, must mean at least two things. First, that the law is supreme over officials of the government as well as private individuals, and thereby preclusive of the influence of arbitrary power. Indeed, it is because of the supremacy of law over the government, as established in s. 23 of the Manitoba Act, 1870 and s. 52 of the Constitution Act, 1982, that this Court must find the unconstitutional laws of Manitoba to be invalid and of no force and effect.

 

60.       Second, the rule of law requires the creation and maintenance of an actual order of positive laws which preserves and embodies the more general principle of normative order. Law and order are indispensable elements of civilized life. "The rule of law in this sense implies ... simply the existence of public order." (W. I. Jennings, The Law and the Constitution (5th ed. 1959), at p. 43). As John Locke once said, "A government without laws is, I suppose, a mystery in politics, inconceivable to human capacity and inconsistent with human society" (quoted by Lord Wilberforce in  Carl‑Zeiss‑Stiftung v. Rayner and Keeler Ltd. (No. 2), [1966] 2 All E.R. 536 (H.L.), at p. 577). According to Wade and Phillips, Constitutional and Administrative Law (9th ed. 1977), at p. 89: "... the rule of law expresses a preference for law and order within a community rather than anarchy, warfare and constant strife. In this sense, the rule of law is a philosophical view of society which in the Western tradition is linked with basic democratic notions".

 

61.       It is this second aspect of the rule of law that is of concern in the present situation. The conclusion that the Acts of the Legislature of Manitoba are invalid and of no force or effect means that the positive legal order which has purportedly regulated the affairs of the citizens of Manitoba since 1890 will be destroyed and the rights, obligations and other effects arising under these laws will be invalid and unenforceable. As for the future, since it is reasonable to assume that it will be impossible for the Legislature of Manitoba to rectify instantaneously the constitutional defect, the Acts of the Manitoba Legislature will be invalid and of no force or effect until they are translated, re‑enacted, printed and published in both languages.

 

62.       Such results would certainly offend the rule of law. As we stated in the Patriation Reference, supra, at pp. 805‑06:

 

The "rule of law" is a highly textured expression ... conveying, for example, a sense of orderliness, of subjection to known legal rules and of executive accountability to legal authority.

 

(Emphasis added.)

 

Dr. Raz has said: " `The rule of law' means literally what it says: the rule of the law.... It has two aspects: (1) that people should be ruled by the law and obey it, and (2) that the law should be such that people will be able to be guided by it" (The Authority of Law (1979), at pp. 212‑13). The rule of law simply cannot be fulfilled in a province that has no positive law.

 

63.       The constitutional status of the rule of law is beyond question. The preamble to the Constitution Act, 1982 states:

 

            Whereas Canada is founded upon principles that recognize the supremacy of God and the rule of law.

 

(Emphasis added.)

 

This is explicit recognition that "the rule of law [is] a fundamental postulate of our constitutional structure" (per Rand J., Roncarelli v. Duplessis, [1959] S.C.R. 121, at p. 142). The rule of law has always been understood as the very basis of the English Constitution characterising the political institutions of England from the time of the Norman Conquest (A.V. Dicey, The Law of the Constitution (10th ed. 1959), at p. 183). It becomes a postulate of our own constitutional order by way of the preamble to the Constitution Act, 1982, and its implicit inclusion in the preamble to the Constitution Act, 1867 by virtue of the words "with a Constitution similar in principle to that of the United Kingdom".

 

64.       Additional to the inclusion of the rule of law in the preambles of the Constitution Acts of 1867 and 1982, the principle is clearly implicit in the very nature of a Constitution. The Constitution, as the Supreme Law, must be understood as a purposive ordering of social relations providing a basis upon which an actual order of positive laws can be brought into existence. The founders of this nation must have intended, as one of the basic principles of nation building, that Canada be a society of legal order and normative structure: one governed by rule of law. While this is not set out in a specific provision, the principle of the rule of law is clearly a principle of our Constitution.

 

65.       This Court cannot take a narrow and literal approach to constitutional interpretation. The jurisprudence of the Court evidences a willingness to supplement textual analysis with historical, contextual and purposive interpretation in order to ascertain the intent of the makers of our Constitution.

 

66.       The Court has in the past inferred constitutional principles from the preambles to the Constitution Acts and the general object and purpose of the Constitution. In the Patriation Reference, supra, the Court found the federal principle to be inherent in the Constitution in this way. At pages 905‑06 the Court said:

 

            The reason for the rule is the federal principle. Canada is a federal union. The preamble of the B.N.A. Act states that

 

...the Provinces of Canada, Nova Scotia, and New Brunswick have expressed their Desire to be federally united...

 

            The federal character of the Canadian Constitution was recognized in innumerable judicial pronouncements. We will quote only one, that of Lord Watson in Liquidators of the Maritime Bank of Canada v. Receiver‑General of New Brunswick, [1892] A.C. 437, at pp. 441‑42:

 

The object of the Act was neither to weld the provinces into one, nor to subordinate provincial governments to a central authority, but to create a federal government in which they should all be represented, entrusted with the exclusive administration of affairs in which they had a common interest, each province retaining its independence and autonomy.

 

            The federal principle cannot be reconciled with a state of affairs where the modification of provincial legislative powers could be obtained by the unilateral action of the federal authorities. It would indeed offend the federal principle that "a radical change to... (the) constitution (be) taken at the request of a bare majority of the members of the Canadian House of Commons and Senate" (Report of Dominion Provincial Conference, 1931, at p. 3).

 

Martland and Ritchie JJ. in their dissent stated (at p. 841):

 

However, on occasions, this Court has had to consider issues for which the B.N.A. Act offered no answer. In each case, this Court has denied the assertion of any power which would offend against the basic principles of the Constitution.

 

They went on to discuss a number of the more important decisions rendered by this Court and conclude with the following (at pp. 844‑45):

 

            It may be noted that the above instances of judicially developed legal principles and doctrines share several characteristics. First, none is to be found in express provisions of the British North America Acts or other constitutional enactments. Second, all have been perceived to represent constitutional requirements that are derived from the federal character of Canada's Constitution. Third, they have been accorded full legal force in the sense of being employed to strike down legislative enactments. Fourth, each was judicially developed in response to a particular legislative initiative in respect of which it might have been observed, as it was by Dickson J. in the Amax (supra) case at p. 591, that "There are no Canadian constitutional law precedents addressed directly to the present issue...".

 

(Emphasis added.)

 

In other words, in the process of Constitutional adjudication, the Court may have regard to unwritten postulates which form the very foundation of the Constitution of Canada. In the case of the Patriation Reference, supra, this unwritten postulate was the principle of federalism. In the present case it is the principle of rule of law.

 

2)         Application of the Principle of the Rule of Law

 

67.       It is clear from the above that: (i) the law as stated in s. 23 of the Manitoba Act, 1870 and s. 52 of the Constitution Act, 1982 requires that the unilingual Acts of the Manitoba Legislature be declared to be invalid and of no force or effect, and (ii) without more, such a result would violate the rule of law. The task the Court faces is to recognize the unconstitutionality of Manitoba's unilingual laws and the Legislature's duty to comply with the "supreme law" of this country, while avoiding a legal vacuum in Manitoba and ensuring the continuity of the rule of law.

 

68.       A number of the parties and interveners have suggested that the Court declare the unilingual Acts of the Manitoba Legislature to be invalid and of no force or effect and leave it at that, relying on the legislatures to work out a constitutional amendment. This approach because it would rely on a future and uncertain event, would be inappropriate. A declaration that the laws of Manitoba are invalid and of no legal force or effect would deprive Manitoba of its legal order and cause a transgression of the rule of law. For the Court to allow such a situation to arise and fail to resolve it would be an abdication of its responsibility as protector and preserver of the Constitution.

 

69.       Other solutions suggested by the parties and interveners are equally unsatisfactory. Counsel for the Attorney General of Manitoba argues that the linguistic rights guaranteed by s. 23 of the Manitoba Act, 1870 can be protected by the Lieutenant‑Governor of the province, who can either withhold royal assent to a unilingual bill or reserve the bill for the signification of the Governor General's pleasure: Constitution Act, 1867, ss. 55, 57, 90. See also Manitoba Act, 1870, s. 2. Though this legal power continues to exist, it has not been exercised in recent years. See, Reference re Disallowance and Reservation of Provincial Legislation, [1938] S.C.R. 71.

 

70.       The fundamental difficulty with the Attorney General of Manitoba's suggestion is that it would make the executive branch of the federal government, rather than the courts, the guarantor of constitutionally entrenched language rights. It should be noted that a decision of a provincial Lieutenant‑Governor as to whether to withhold assent or reserve a bill is not reviewable by the courts: Reference re Disallowance and Reservation of Provincial Legislation, supra, at p. 95. The overall effect of implementing the suggestion of the Attorney General of Manitoba would be to insulate the Legislature's failure to comply with s. 23 of the Manitoba Act, 1870 from judicial review. Such a result would be entirely inconsistent with the judiciary's duty to uphold the Constitution.

 

71.       Similar considerations would apply to the six Manitoba citizen interveners' contention that the federal power of disallowance in the Constitution Act, 1867 could be used as an alternative to judicial invalidation. This is not an appropriate alternative solution because it asks the Court to abdicate its responsibility to enforce the dictates of the Constitution.

 

72.       The only appropriate resolution to this Reference is for the Court to fulfill its duty under s. 52 of the Constitution Act, 1982 and declare all the unilingual Acts of the Legislature of Manitoba to be invalid and of no force and effect and then to take such steps as will ensure the rule of law in the Province of Manitoba.

 

73.       There is no question that it would be impossible for all the Acts of the Manitoba Legislature to be translated, re‑enacted, printed and published overnight. There will necessarily be a period of time during which it would not be possible for the Manitoba Legislature to comply with its constitutional duty under s. 23 of the Manitoba Act, 1870.

 

74.       The vexing question, however, is what will be the legal situation in the Province of Manitoba for the duration of this period. The difficulties faced by the Province of Manitoba are two‑fold: first, all of the rights, obligations and other effects which have arisen under the repealed, spent and current Acts of the Manitoba Legislature will be open to challenge, since the laws under which they purportedly arise are invalid and of no force or effect; and, second, the Province of Manitoba has an invalid and therefore ineffectual legal system until the Legislature is able to translate, re‑enact, print and publish its current Acts.

 

75.       With respect to the first of these problems, it was argued by a number of the parties and interveners that the de facto doctrine might be used to uphold the rights, obligations and other effects which have purportedly arisen under the unilingual Acts of the Manitoba Legislature since 1890.

 

76.       The de facto doctrine is defined by Judge Albert Constantineau in The De Facto Doctrine (1910), at pp. 3‑4 as follows:

 

            The de facto doctrine is a rule or principle of law which, in the first place, justifies the recognition of the authority of governments established and maintained by persons who have usurped the sovereign authority of the State, and assert themselves by force and arms against the lawful government; secondly, which recognizes the existence of, and protects from collateral attack, public or private bodies corporate, which, though irregularly or illegally organized, yet, under color of law, openly exercise the powers and functions of regularly created bodies; and, thirdly, which imparts validity to the official acts of persons who, under color of right or authority, hold office under the aforementioned governments or bodies, or exercise lawfully existing offices of whatever nature, in which the public or third persons are interested, where the performance of such official acts is for the benefit of the public or third persons, and not for their own personal advantage.

 

That the foundation of the principle is the more fundamental principle of the rule of law is clearly stated by Constantineau in the following passage (at pp. 5‑6):

 

Again, the doctrine is necessary to maintain the supremacy of the law and to preserve peace and order in the community at large, since any other rule would lead to such uncertainty and confusion, as to break up the order and quiet of all civil administration. Indeed, if any individual or body of individuals were permitted, at his or their pleasure, to challenge the authority of and refuse obedience to the government of the state and the numerous functionaries through whom it exercises its various powers, or refuse to recognize municipal bodies and their officers, on the ground of irregular existence or defective titles, insubordination and disorder of the worst kind would be encouraged, which might at any time culminate in anarchy.

 

77.       The de facto doctrine is of ancient and venerable origin. The first reported English case was the Abbé de Fontaine's Case (1431), Y.B. 9 H. VI., fol. 32. The doctrine's utility was even recognized by the Romans. See A.M. Honore, "Reflections on Revolutions" (1967), 2 Irish Jurist 268 at p. 269. See also, Scadding v. Lorant (1851), 3 H.L.C. 418, 10 E.R. 164 (H.L.); R. v. Slythe (1827), 6 B. & C. 240, 108 E.R. 441, at p. 444; Margate Pier Co. v. Hannam (1819), 3 B. & Ald. 266, 106 E.R. 661, at p. 663.

 

78.       The de facto doctrine has long been accepted in Canada. In O'Neil v. Attorney‑General of Canada (1896), 26 S.C.R. 122, at p. 130, Chief Justice Strong said: "The rule of law is that the acts of a person assuming to exercise the functions of an office to which he has no legal title are, as regards third persons, ... legal and binding". See also Turtle v. Township of Euphemia (1900), 31 O.R. 404; R. v. Gibson (1896), 29 N.S.R. 4; see generally cases collected in Constantineau, supra, at p. 20, note 35.

 

79.       There is only one true condition precedent to the application of the doctrine: the de facto officer must occupy his or her office under colour of authority. This is consistent with the rationale for the doctrine, viz., that the members of the public with whom the officer dealt relied upon his ostensible status. Simply put, "[a]n officer de facto is one who has the reputation of being the officer he assumes to be, and yet is not a good officer in point of law". R. v. Corporation of Bedford Level (1805), 6 East 356, 102 E.R. 1323 at p. 1328 (per Lord Ellenborough C.J.). See also Parker v. Kett (1702), 1 Ld. Raym. 658, 91 E.R. 1338, at p. 1340.

 

80.       The application of the de facto doctrine is, however, limited to validating acts which are taken under invalid authority: it does not validate the authority under which the acts took place. In other words, the doctrine does not give effect to unconstitutional laws. It recognizes and gives effect only to the justified expectations of those who have relied upon the acts of those administering the invalid laws and to the existence and efficacy of public and private bodies corporate, though irregularly or illegally organized. Thus, the de facto doctrine will save those rights, obligations and other effects which have arisen out of actions performed pursuant to invalid Acts of the Manitoba Legislature by public and private bodies corporate, courts, judges, persons exercising statutory powers and public officials. Such rights, obligations and other effects are, and will always be, enforceable and unassailable.

 

81.       The de facto doctrine will not by itself save all of the rights, obligations and other effects which have purportedly arisen under the repealed and current Acts of the Legislature of Manitoba from 1890 to the date of this judgment. Some of these rights, obligations and other effects did not arise as a consequence of reliance by the public on the acts of officials acting under colour of authority or on the assumed validity of public and private bodies corporate. Furthermore, the de facto authority of officials and entities acting under the invalid laws of the Manitoba Legislature will cease on the date of this judgment since all colour of authority ceases on that date. Thus, the de facto doctrine only provides a partial solution.

 

82.       It should be noted that there are other doctrines which might provide relief from the consequences of the invalidity of Manitoba's laws. For example, res judicata would preclude the re‑opening of cases decided by the courts on the basis of invalid laws. And the doctrine of mistake of law might, in some circumstances, preclude recovery of monies paid under invalid laws: see Eadie v. Township of Brantford, [1967] S.C.R. 573; Amax Potash Ltd. v. Government of Saskatchewan, supra. However, as the Attorney General of Canada has stated in his factum, these doctrines are of limited scope and may not cover all of the situations that could be questioned.

 

83.       The only appropriate solution for preserving the rights, obligations and other effects which have arisen under invalid Acts of the Legislature of Manitoba and which are not saved by the de facto or other doctrines is to declare that, in order to uphold the rule of law, these rights, obligations and other effects have, and will continue to have, the same force and effect they would have had if they had arisen under valid enactments, for that period of time during which it would be impossible for Manitoba to comply with its constitutional duty under s. 23 of the Manitoba Act, 1870. The Province of Manitoba would be faced with chaos and anarchy if the legal rights, obligations and other effects which have been relied upon by the people of Manitoba since 1890 were suddenly open to challenge. The constitutional guarantee of rule of law will not tolerate such chaos and anarchy.

 

84.       Nor will the constitutional guarantee of rule of law tolerate the Province of Manitoba being without a valid and effectual legal system for the present and future. Thus, it will be necessary to deem temporarily valid and effective the unilingual Acts of the Legislature of Manitoba which would be currently in force, were it not for their constitutional defect, for the period of time during which it would be impossible for the Manitoba Legislature to fulfil its constitutional duty. Since this temporary validation will include the legislation under which the Manitoba Legislature is presently constituted, it will be legally able to re‑enact, print and publish its laws in conformity with the dictates of the Constitution once they have been translated.

 

85.       Analogous support for the measures proposed can be found in cases which have arisen under the doctrine of state necessity. Necessity in the context of governmental action provides a justification for otherwise illegal conduct of a government during a public emergency. In order to ensure rule of law, the Courts will recognize as valid the constitutionally invalid Acts of the Legislature. According to Professor Stavsky, "The Doctrine of State Necessity in Pakistan" (1983), 16 Cornell Int. L.J. 341, at p. 344: "If narrowly and carefully applied, the doctrine constitutes an affirmation of the rule of law" (Emphasis added.)

 

86.       The courts have applied the doctrine of necessity in a variety of circumstances. A number of cases have involved challenges to the laws of an illegal and insurrectionary government. In the aftermath of the American Civil War, the question arose as to the validity of laws passed by the Confederate States. The courts in addressing this question were primarily concerned with ensuring that the rule of law be upheld. The principle which emerges from these cases can be summarized as follows: During a period of insurrection, when territory is under the control and dominance of an unlawful, hostile government and it is therefore impossible for the lawful authorities to legislate for the peace and good order of the area, the laws passed by the usurping government which are necessary to the maintenance of organized society and which are not in themselves unconstitutional will be given force and effect: see Texas v. White, 74 U.S. 700 (1868); Horn v. Lockhart, 84 U.S. 570 (1873); United States v. Insurance Companies, 89 U.S. 99 (1874); Baldy v. Hunter, 171 U.S. 388 (1898).

 

87.       The general principles and concerns which underlie these cases are best stated by Mr. Justice Field in Horn v. Lockhart, supra, at pp. 580‑81:

 

            We admit that the acts of the several States in their individual capacities, and of their different departments of government, executive, judicial, and legislative, during the war, so far as they did not impair or tend to impair the supremacy of the National authority, or the just rights of citizens under the Constitution, are, in general, to be treated as valid and binding. The existence of a state of insurrection and war did not loosen the bonds of society, or do away with civil government, or the regular administration of the laws. Order was to be preserved, police regulations maintained, crime prosecuted, property protected, contracts enforced, marriages celebrated, estates settled, and the transfer and descent of property regulated precisely as in time of peace. No one that we are aware of seriously questions the validity of judicial or legislative acts in the insurrectionary States touching these and kindred subjects, where they were not hostile in their purpose or mode of enforcement to the authority of the National government, and did not impair the rights of citizens under the Constitution.

 

88.       The doctrine of necessity was also applied with respect to an insurrectionary government in Madzimbamuto v. Lardner‑Burke, [1969] 1 A.C. 645 (P.C.) This case dealt with the efficacy of official acts of the Smith régime shortly after Southern Rhodesia's unilateral declaration of independence from Britain in 1965. Lord Reid, writing for the majority, canvassed the American authorities discussed above, but found them distinguishable on the ground that in this case, Parliament had specifically provided that it would have legislative authority for the territory of Southern Rhodesia (in the Southern Rhodesia Act and Order in Council of 1965), and it thereby followed that there was no "legal vacuum" necessitating recognition by the courts of the laws purportedly enacted by the insurrectionary Smith government.

 

89.       Lord Pearce dissented from the majority view. He saw no merit in the distinction drawn by the majority, noting that while the lawful government had formally asserted its authority, it was in no position, as a practical matter, to actually govern. In his view, the American cases presented "a helpful analogy" and, in reliance on them, he formulated the "state necessity doctrine" as follows, at p. 732:

 

            I accept the existence of the principle that acts done by those actually in control without lawful validity may be recognized as valid or acted upon by the courts, with certain limitations namely (a) so far as they are directed to and reasonably required for ordinary orderly running of the State, and (b) so far as they do not impair the rights of citizens under the lawful (1961) Constitution, and (c) so far as they are not intended to and do not in fact directly help the usurpation and do not run contrary to the policy of the lawful Sovereign. This last, i.e., (c), is tantamount to a test of public policy.

 

Again, it is clear that the reasons for applying the state necessity doctrine pertain to a concern with the rule of law. At page 740, Lord Pearce says:

 

If one disregards all illegal provision for the needs of the country, there is a vacuum and chaos.

 

            In my view, the principle of necessity or implied mandate applies to the present circumstances in Rhodesia.

 

(Emphasis added.)

 

90.       It should be noted that neither the American cases on necessity, nor the comments of Lord Pearce in Madzimbamuto can be applied directly to the present case. All of these cases are concerned with insurrectionary governments, the present case is not. But even more fundamental than this distinction is the fact that all of these cases require that the laws saved by the application of the doctrine not impair the rights of the citizens guaranteed by the Constitution. In the present case, the laws in question do impair these rights. Nonetheless, the necessity cases on insurrectionary governments illustrate the more general proposition that temporary effect can be given to invalid laws where this is necessary to preserve the rule of law.

 

91.       The doctrine of state necessity has also been used to uphold laws enacted by a lawful government in contravention of express constitutional provisions under extraordinary circumstances which render it impossible for the government to comply with the Constitution. In Attorney General of the Republic v. Mustafa Ibrahim, [1964] Cyprus Law Reports 195, the Court of Appeal of Cyprus invoked the doctrine of state necessity to hold valid a law passed in direct contravention of the express provisions of the Cypriot Constitution.

 

92.       Cyprus is a dyarchy, power being shared between Greek and Turkish Cypriots. The 1960 Cypriot Constitution contained several entrenched provisions guaranteeing the equality of status of the two Cypriot communities. In particular, the Constitution established a High Court of Justice and a Supreme Constitutional Court, each staffed by judges from both communities and governed by a neutral (non‑Cypriot) President. A Turkish Cypriot charged with an offence against a Greek Cypriot was given the right to be tried by such a "mixed" court. In addition, all laws were required to be enacted in both the Turkish and the Greek languages. These constitutional provisions, termed "basic articles", could not be amended.

 

93.       In 1963, Turkish insurgents gained control over those parts of Cyprus inhabited by the Turkish community. This effectively prevented Turkish Cypriots from participating in the government of the country, including the Parliament of Cyprus and all courts located outside the Turkish areas. As a consequence, it became impossible to constitute "mixed" courts as required by the Constitution, to assemble the Supreme Constitutional Court, or to enact laws in Turkish, there being virtually no qualified translators available during the insurgency.

 

94.       To deal with the emergency, the Parliament of Cyprus passed a temporary law abolishing the requirement of mixed courts for the duration of the insurrection and conferring on a new Court of Appeal, composed solely of Greek Cypriot Judges, the jurisdiction then vested by the Constitution in the Supreme Constitutional Court. This temporary measure, enacted in Greek only, was challenged as unconstitutional.

 

95.       The Court of Appeal upheld the law on grounds of necessity. Josephides J. at p. 265 set forth four prerequisites which he said must be satisfied before the doctrine of state necessity could apply to validate such an unconstitutional law:

 

 

 

(a) an imperative and inevitable necessity or exceptional circumstances;

 

(b) no other remedy to apply;

 

(c) the measure taken must be proportionate to the necessity; and

 

(d) it must be of a temporary character limited to the duration of the exceptional circumstances.

 

Josephides J. added:

 

A law thus enacted is subject to the control of this court to decide whether the aforesaid prerequisites are satisfied, i.e. whether there exists such a necessity and whether the measures taken were necessary to meet it.

 

All four conditions being satisfied, Josephides J. concluded (at p. 268) that the impugned law, while unconstitutional, was nevertheless effectual "for the duration of the necessity and no more".

 

96.       The question in Ibrahim, supra, was whether a temporary unconstitutional law, enacted in order to meet the exigencies of a state of emergency, could be valid. The question in the present Reference is quite different. Here, the Court is concerned with whether unconstitutional laws can be given temporary validity in order to avoid a state of emergency. It is the Court which must take steps to avoid the deleterious consequences of the Manitoba Legislature's persistent failure to observe the Constitution. In Ibrahim the Court simply condoned the measures taken by the Parliament of Cyprus in response to a necessitous situation arising out of circumstances beyond its control. Thus, Ibrahim is not directly applicable to the circumstances of the present case.

 

97.       The principle that can be deduced from the Ibrahim case with respect to the present context, however, is that a Court may temporarily treat as valid and effective laws which are constitutionally flawed in order to preserve the rule of law. The case stands for the proposition that under conditions of emergency, when it is impossible to comply with the Constitution, the Court may allow the government a temporary reprieve from such compliance in order to preserve society and maintain, as nearly as possible, normal conditions. The overriding concern is the protection of the rule of law.

 

98.       A third situation in which the doctrine of necessity has been applied is where the executive has taken emergency action to fill a legislative void created by a court ruling. In the Pakistani case of Special Reference No. 1 of 1955, P.L.R. 1956 W.P. 598, there was a challenge to emergency action taken by the Governor General of Pakistan in the face of an apparent legal vacuum. The Indian Independence Act, 1947, was the original Constitution for the newly created dominions of India and Pakistan. As a step toward complete independence, the Act provided for a Constituent Assembly in each country, with power to amend the Act and enact new constitutional laws. Royal assent was required for the passage of all such constitutional legislation.

 

99.       The Constituent Assembly of Pakistan set out immediately to forge its own Constitution. From 1947 to 1954 it enacted 44 constitutional amendments. The members of the Assembly, however, felt that it was important that the new Constitution have roots as independent of imperial authority as possible. They therefore deliberately failed to obtain royal assent to any of the amendments. Indeed, in 1948, the Assembly passed an amendment purportedly abolishing the requirement of royal assent. This amendment, like the other 43, was itself passed without royal assent.

 

100.     In Federation of Pakistan v. Tamizuddin Khan, P.L.R. 1956 W.P. 306, the Federal Court of Pakistan held the constitutional amendments void. It followed that a great many statutes and regulations enacted pursuant to the invalid amendments were themselves nullities. The situation that obtained was in many respects similar to that now facing Manitoba.

 

101.     The Governor General of Pakistan reacted to the emergency by summoning a Constituent Convention and issuing a proclamation assuming to himself, until the Convention could act, the power to validate and enforce all laws necessary to preserve the State and maintain the government of the country. This action was challenged, and in Special Reference No. 1 of 1955, supra, the Federal Court of Pakistan held that although the Governor General's action was not authorized by the Constitution, it nevertheless was valid under the doctrine of state necessity. Muhammad Munir C.J. said (at p. 671):

 

            The disaster that stared the Governor‑General in the face, consequent on the illegal manner in which the Constituent Assembly exercised its legislative authority is apparent ... The Governor‑General must, therefore, be held to have acted in order to avert an impending disaster and to prevent the State and society from dissolution. His proclamation of the 16th April, 1955, declaring that the laws mentioned in the Schedule to the Emergency Powers Ordinance, 1955, shall be retrospectively enforceable is accordingly valid during the interim period, i.e., until the validity of these laws is decided upon by the new Constituent Assembly.

 

102.     The Special Reference No. 1 of 1955, supra, stands for the proposition that a situation of state necessity can arise as a consequence of judicial invalidation of unconstitutional laws, leaving a legal void. The difference between that case and the present is that in the present case it is the judicial branch of government that is retrospectively recognizing unconstitutional laws as temporarily valid and enforceable, while in the Special Reference No. 1 of 1955 case it was the executive branch of government which proclaimed that laws were retrospectively valid and enforceable, and the role of the judiciary was simply to condone the actions of the executive.

 

103.     Thus, the Special Reference No. 1 of 1955 case, supra, cannot be directly applied to the present set of circumstances. It is, however, illustrative of the broader principles which justify this Court's action in the present case: namely, that otherwise invalid acts may be recognized as temporarily valid in order to preserve normative order and the rule of law. The Federal Court of Pakistan allowed an unconstitutional exercise of executive power since the effects of not allowing such an exercise of power would have been anarchy and chaos and thereby a violation of the rule of law.

 

104.     The cases on the necessity doctrine in all three circumstances discussed above point to the same conclusion: the courts will recognize unconstitutional enactments as valid where a failure to do so would lead to legal chaos and thus violate the constitutional requirement of the rule of law. This is well expressed by Mr. Justice Triantafyllides in Ibrahim, supra, at p. 237:

 

            If the position was that the administration of justice and the preservation of the rule of law and order in the State could no longer be secured in a manner which would not be inconsistent with the constitution, a constitution under which the sovereign will of the people could not be expressed so as to regulate through an amendment of the fundamental law such a situation, then the House of Representatives, elected by the people, should be empowered to take such necessary steps as are warranted, by the doctrine of necessity, in the exigencies of the situation. Otherwise the absurd corollary would have been entailed viz. that a State, and the people, should be allowed to perish for the sake of the constitution; on the contrary, a constitution should exist for the preservation of the State and the welfare of the people.

 

(Emphasis added.)

 

105.     The doctrine of necessity is not used in these cases to support some law which is above the Constitution; it is, instead used to ensure the unwritten but inherent principle of rule of law which must provide the foundation of any constitution.

 

106.     In every case in which the doctrine of state necessity has been applied it has been either the executive or the legislative branch of government which has responded to the necessitous circumstances, later to have its actions tested in the courts. This fact does not, however, detract from the general relevance of these cases in demonstrating that the courts will not allow the Constitution to be used to create chaos and disorder.

 

107.     Turning back to the present case, because of the Manitoba Legislature's persistent violation of the constitutional dictates of the Manitoba Act, 1870, the Province of Manitoba is in a state of emergency: all of the Acts of the Legislature of Manitoba, purportedly repealed, spent and current (with the exception of those recent laws which have been enacted, printed and published in both languages), are and always have been invalid and of no force or effect, and the Legislature is unable to immediately re‑enact these unilingual laws in both languages. The Constitution will not suffer a province without laws. Thus the Constitution requires that temporary validity and force and effect be given to the current Acts of the Manitoba Legislature from the date of this judgment, and that rights, obligations and other effects which have arisen under these laws and the repealed and spent laws of the Province prior to the date of this judgment, which are not saved by the de facto or some other doctrine, are deemed temporarily to have been and continue to be effective and beyond challenge. It is only in this way that legal chaos can be avoided and the rule of law preserved.

 

108.     To summarize, the legal situation in the Province of Manitoba is as follows. All unilingually enacted Acts of the Manitoba Legislature are, and always have been, invalid and of no force or effect.

 

109.     All Acts of the Manitoba Legislature which would currently be valid and of force and effect, were it not for their constitutional defect, are deemed temporarily valid and effective from the date of this judgment to the expiry of the minimum period necessary for translation, re‑enactment, printing and publishing. Rights, obligations and any other effects which have arisen under these current laws by virtue of reliance on acts of public officials, or on the assumed legal validity of public or private bodies corporate, are enforceable and forever beyond challenge under the de facto doctrine. The same is true of those rights, obligations and other effects which have arisen under current laws and are saved by doctrines such as res judicata and mistake of law.

 

110.     Rights, obligations and any other effects which have arisen under purportedly repealed or spent laws by virtue of reliance on acts of public officials, or on the assumed legal validity of public or private bodies corporate are enforceable and forever beyond challenge under the de facto doctrine. The same is true of those rights, obligations and other effects which have arisen under purportedly repealed or spent laws and are saved by doctrines such as res judicata and mistake of law.

 

111.     All rights, obligations and any other effects which have arisen under Acts of the Manitoba Legislature which are purportedly repealed, spent, or would currently be in force were it not for their constitutional defect, and which are not saved by the de facto doctrine, or doctrines such as res judicata and mistake of law, are deemed temporarily to have been, and to continue to be, enforceable and beyond challenge from the date of their creation to the expiry of the minimum period of time necessary for translation, re‑enactment, printing and publishing of these laws. At the termination of the minimum period these rights, obligations and other effects will cease to have force and effect unless the Acts under which they arose have been translated, re‑enacted, printed and published in both languages. As a consequence, to ensure the continuing validity and enforceability of rights, obligations and any other effects not saved by the de facto or other doctrines, the repealed or spent Acts of the Legislature, under which these rights, obligations and other effects have purportedly arisen, may need to be enacted, printed and published, and then repealed, in both official languages.

 

112.     As concerns the future, the Constitution requires that, from the date of this judgment, all new Acts of the Manitoba Legislature be enacted, printed and published in both French and English. Any Acts of the Legislature that do not meet this requirement will be invalid and of no force or effect.

 

                                                                            VI

 

The Duration of the Temporary Period

 

113.     The difficult question, then, is what is the duration of the minimum period necessary for translation, re‑enactment, printing and publishing of the unilingual Acts of the Manitoba Legislature?

 

114.     It was argued by the Attorney General of Canada and by the Fédération des francophones hors Québec that this Court fix some arbitrary period such as a year or two years during which the Manitoba Legislature could re‑enact its unilingual legislation in both languages.

 

115.     This solution would not be satisfactory. We do not know how many of the Acts of the Legislature have already been translated. We know nothing as to the availability of translators or their daily output. We thus have no factual basis for determining a period during which compliance with s. 23 of the Manitoba Act, 1870 would not be possible.

 

116.     As presently equipped the Court is incapable of determining the period of time during which it would not be possible for the Manitoba Legislature to comply with its constitutional duty. The Court will, however, at the request of either the Attorney General of Canada, or the Attorney General of Manitoba, made within one hundred and twenty days of the date of this judgment, make such a determination. The Attorney General of Canada was granted carriage of this Reference and the Attorney General of Manitoba represents the province whose laws are in issue in this case. Following such a request, a special hearing will be set and submissions will be accepted from the Attorney General of Canada and the Attorney General of Manitoba and the other interveners.

 

117.     The period of temporary validity will not apply to any unilingual Acts of the Legislature enacted after the date of judgment. From the date of judgment, laws which are not enacted, printed, and published in both languages will be invalid and of no force and effect ab initio.

 

                                                                            VII

 

Question 4

 

The Status of the 1980 Act

 

118.     Question No. 4 of this Reference asks whether any of the provisions of An Act Respecting the Operation of Section 23 of the Manitoba Act in Regard to Statutes, 1980 (Man.), c. 3 (the 1980 Act), are inconsistent with s. 23 of the Manitoba Act, 1870 and, if so, whether the inconsistent provisions are invalid and of no force or effect.

 

The Act in its entirety reads:

 

            Definition of "official language".

 

1 In this Act "official language" means the English language or the French language.

 

            Interpretation where conflict.

 

2 Where the meaning of a provision of an Act in one official language conflicts with, is repugnant to or is inconsistent with the meaning of the corresponding provision of the Act in the other official language

 

(a) the provision in the official language in which the Bill for the Act was printed when copies thereof were first distributed to the members of the assembly in the assembly prevails over the corresponding provision in the other official language; and

 

(b) if the Bill for the Act was printed in both official languages when copies thereof were first distributed to the members of the assembly in the assembly, preference shall be given to that meaning of the provision that, according to the true spirit, intent and meaning of the Act as a whole, best insures the attainment of its objects.

 

            Certificate on introduction of Bill.

 

3(1) Where a Bill introduced in the Legislature is printed in only one of the official languages when copies thereof are first distributed to the members of the assembly in the assembly, the Clerk of the House shall endorse on the Bill a certificate certifying that the Bill was printed in that official language when copies thereof were first distributed to the members of the assembly in the assembly and, if the Bill is enacted, that certificate shall be printed on the Act in all copies thereof printed and published by or on behalf of the government.

 

            Language for distribution of old statutes.

 

3(2) For greater certainty in the interpretation of the statutes of the province heretofore enacted, the Bills for all Acts heretofore enacted shall be conclusively deemed to have been printed in the English language when copies thereof were first distributed to the members of the assembly in the assembly.

 

            Where translation of Bill deemed enacted.

 

4(1) Where a Bill for an Act that was introduced in the Legislature was printed in only one of the official languages and was enacted before a translation thereof into the other official language was available, if subsequently there is deposited with the Clerk of the House a translation of the Act into that other official language, certified to be a true translation of the Act by a person designated by the Speaker for the purpose of examining and certifying the translation of the Act, that translation of the Act into that other official language shall, for all purposes, be valid and of the same effect as the Act in the official language in which the Bill for the Act was printed, from and after the date of the enactment of the Act.

 

            Printing of translation.

 

4(2) Where the translation of an Act into an official language is deposited with the Clerk of the House in accordance with subsection (1), the Clerk of the House shall endorse on the translation a certificate certifying that the translation, certified by the person designated by the Speaker for the purpose of examining and certifying the translation of the Act, has been deposited with him as of the date on which it was so deposited, and that certificate, and the certificate of the person designated by the Speaker for the purpose of examining and certifying the translation of the Act shall be printed on the translation of the Act in all copies thereof printed and published by or on behalf of the government.

 

            Reference to lines in Acts.

 

5 Where in an Act of the Legislature enacted before January 1, 1981, there is a reference to a specific line of a section, subsection, clause, sub‑clause, sub‑sub‑clause, paragraph, sub‑paragraph, schedule, form or other portion of that Act or any other Act of the Legislature enacted before January 1, 1981 (hereinafter in this section referred to as the "named Act") and there appears to be an inconsistency or ambiguity raised by the reference because that specific line in the named Act printed in one official language differs in content from the specific line in the named Act printed in the other official language, the reference shall be deemed to be a reference to that specific line in the named Act printed in the English language.

 

            Place in Continuing Consolidation.

 

6 This Act may be referred to as chapter S207 of the Continuing Consolidation of the Statutes of Manitoba.

 

            Repeal.

 

7 An Act to provide that the English language shall be the Official Language of the Province of Manitoba, being chapter O10 of the Revised Statutes, is repealed.

 

            Commencement of Act.

 

8 This Act comes into force on the day it receives the royal assent.

 

119.     The Act was amended in 1982 to add the following subsection:

 

            Where a Speaker unable to act.

 

4(3) Where the Speaker is absent or unable for any other reason to designate a person for the purpose of examining and certifying the translation of an Act, the Deputy Speaker may designate a person for that purpose, and where there is no Speaker or Deputy Speaker, or both the Speaker and the Deputy Speaker are absent or unable to act, the Attorney‑General may designate a person for the purpose of examining and certifying the translation of an Act.

 

(An Act to Amend an Act Respecting the Operation of Section 23 of the Manitoba Act in Regard to Statutes, 1982 (Man.), c. 3, s. 1.)

 

120.     This amendment was enacted, printed and published in both French and English (see Loi modifiant la Loi sur l’application de l’article 23 de l’Acte du Manitoba aux textes législatifs, 1982 (Man.), c. 3).

 

121.     There is a dispute among the parties, however, as to whether the 1980 Act itself was enacted, printed and published in both languages or whether it was enacted, printed and published in English only. The Attorney General of Manitoba claims that the 1980 Act was passed in both languages. Counsel for Alliance Québec says that it was not. The record before the Court is inconclusive. On the one hand, counsel for Alliance Québec has submitted the sworn statement of the Acting Clerk for the Legislative Assembly of Manitoba that the 1980 Act was passed in the French language by the Manitoba Legislature (Appendices to factum of Alliance Québec, at p. 13). And counsel for the Attorney General of Canada has submitted a French version of the 1980 Act, entitled "Loi sur l’application de l’article 23 de l’Acte du Manitoba aux textes législatifs" (factum of the Attorney General of Canada, at p. 60). On the other hand, there is no French language version of the 1980 Act in the 1980 volume of the Statutes of Manitoba. Nor does such a version appear in the Continuing Consolidation of the Statutes of Manitoba, although an English version of the Act appears there, as chapter S207. Finally, the English version of the Act has, in the upper right hand corner, the notation: "Assented to July 9, 1980". The French version submitted by the Attorney General of Canada has a similar notation, but the date is left blank. It reads: "Sanctionnée le   1980".

 

122.     On the record as it stands, it is difficult to say with certitude whether the 1980 Act was indeed passed in both languages or whether, even if passed in both languages, it ever received royal assent, or whether, even if passed and assented to in both languages, it was ever actually published in French. It is unnecessary to resolve this factual question for the purposes of this Reference. It is enough to say that if the 1980 Act was not enacted, printed and published in both English and French, the entire Act, with the exception of new s. 4(3), is invalid and of no force or effect under s. 23 of the Manitoba Act, 1870. Beyond this, several individual sections of the 1980 Act, including new s. 4(3), are, themselves, in substantive conflict with s. 23 of the Manitoba Act, 1870 and invalid.

 

123.     In Blaikie No. 1, this Court held that Chapter III of Title I of the Charter of the French language, 1977 (Que.), c. 5, ss. 7‑13, was ultra vires the Legislature of Quebec by virtue of s. 133 of the Constitution Act, 1867. Among the provisions struck down were these:

 

            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.

 

124.     The teaching of Blaikie No. 1 is three‑fold. First, s. 133 of the Constitution Act, 1867 demands not just bilingual printing and publication, but bilingual enactment. "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" (at p. 1022).

 

125.     Second, the English and French texts of laws must be equally authoritative. "[Section 133] not only provides but requires that official status be given to both French and English ..." (at p. 1022) (holding unconstitutional ss. 8, 9 of the Charter of the French language, reproduced supra). Cf. Constitution Act, 1982, s. 18(1).

 

126.     In the Quebec Court of Appeal, Attorney General of Quebec v. Blaikie (1978), 95 D.L.R. (3d) 42, Dubé J.A. said, after setting forth ss. 7 to 13 of the Charter of the French language and s. 133 of the Constitution Act, 1867 (at p. 51):

 

            [TRANSLATION]  It seems to me, obviously, that these two Acts are in flagrant contradiction. Chapter III of the Charter of the French Language seeks to make the French language the only official language in the National Assembly and before the Courts, with respect to both oral and written proceedings, whereas s.133 of the British North America Act, 1867, on the other hand, seeks to put the French language and the English language on exactly the same footing of equality before the Legislature and before the Courts of Quebec, as well as before the Houses of the Parliament of Canada and before the Courts of Canada.

 

(Emphasis added.)

 

127.     Deschênes C.J.S.C., put it this way in the Quebec Superior Court (1978), 85 D.L.R. (3d) 252, at p. 264:

 

The Court therefore holds to its conclusion that the requirement of the printing and publishing of the laws in the two languages, French and English, necessarily implies that of their passing and assent in these two languages in a way that the two versions possess this character that Bill 22 called "authentic" and that the Charter qualifies rather as "official".

 

These observations, which make clear that both versions of laws are to be equally authoritative, were adopted by this Court in disposing of the Attorney General's appeal (at p. 1027).

 

128.     The third criterion which emerges from Blaikie No. 1 is the requirement of simultaneity in the use of both languages in the enactment process.

 

The Attorney‑General of Quebec maintains that this expression ["both those languages shall be used"] does not imply simultaneity in the use of both the French and English languages.

 

                                                                             ...

 

            The Court is totally incapable of finding in the second part of s. 133 justification for the alternates or the sequence of the languages that the Attorney‑General of Quebec suggests can be read there: this is not one or the other language as a choice, but the two at the same time which must be used in the records and journals of the Legislature.

 

                                                                             ...

 

            The Court concludes that arts. 7 to 10 of the Charter contravene s. 133 of the British North America Act, 1867, inasmuch as they purport to abolish the obligation of using simultaneously the two languages, French and English, in the "Records" or archives of the National Assembly. [Blaikie v. Attorney‑General of Quebec (1978), 85 D.L.R. (3d) at pp. 260‑61, adopted in the reasons for judgment of this Court in Attorney‑General of Quebec v. Blaikie, [1979] 2 S.C.R. 1016, at p. 1027.]

 

(Emphasis added.)

 

129.     As this Court observed in Blaikie No. 1 "it would be strange to have a requirement, as in s. 133 of the Constitution Act, 1867, that both English and French `shall be used in the ... Records and Journals' ... and not to have this requirement extend to the enactment of legislation" (at p. 1022). Simultaneity of the use of both English and French is therefore required throughout the process of enacting bills into law.

 

130.     To summarize, Blaikie No. 1 stands for the proposition that s. 133 of the Constitution Act, 1867 requires (i) simultaneous enactment of legislation in both English and French, and (ii) equal authority and status for both the English and the French versions. Nothing less would adequately preserve the linguistic guarantees of those sections or ensure that the law was equally accessible to francophones and anglophones alike.

 

131.     As we have said, s. 23 of the Manitoba Act, 1870 and s. 133 of the Constitution Act, 1867 are coterminous. Blaikie No. 1 is therefore controlling on the question of the effect of s. 23 of the Manitoba Act, 1870 on the similar legislation in issue here. Applying the criteria as laid down in Blaikie No. 1 to the present case, it is clear that the 1980 Act does not meet the requirements of s. 23 of the Manitoba Act, 1870.

 

132.     The heart of the 1980 Act is s. 4(1), which authorizes the bilingual promulgation of legislation in two stages: (i) the enactment of a statute in one official language only; and (ii) subsequent translation into the other official language. The translation, once certified and deposited with the Clerk of the House, is deemed "valid and of the same effect" as the formally enacted version.

 

133.     This procedure is insufficient to satisfy s. 23 of the Manitoba Act, 1870. Bilingual enactment is required by s. 23 and unilingual enactment, followed by the later deposit of a translation, is not bilingual enactment. Moreover, s. 4(1) does not contemplate simultaneity in the use of English and French in the enactment process, i.e. in the Records and Journals of the Legislature, as required by s. 23.

 

134.     Beyond this, the provision for the deposit of a translation is entirely voluntary. There is no requirement that a translation be deposited. Section 4(1) says only that "if ... there is deposited with the Clerk of the House a translation ..." the translation will be deemed valid and effective. To be sure, most recent legislation in Manitoba has been bilingually promulgated in accordance with this procedure. But that is because the provincial government has chosen to do so. The 1980 Act nowhere requires that the procedure set forth in s. 4(1) be followed. Unilingually promulgated legislation is still permissible under the Act.

 

135.     Finally, the effort to give legal force and effect to a mere translation of an Act through certification and deposit with the Clerk of the House must fail as an unconstitutional attempt to interfere with the powers of the Lieutenant‑Governor. Royal assent is required of all enactments. Section 4(1) purports to do away with royal assent for the translations of Acts, while giving the translations the full force of law. This scheme is clearly ultra vires the province under s. 41(a) of the Constitution Act, 1982. See In re Initiative and Referendum Act, [1919] A.C. 935 (P.C.)

 

136.     For all of these reasons, s. 4(1) of the 1980 Act is invalid.

 

137.     Section 4(2), which facilitates the process of certifying translations, is also invalid because it is inextricably linked to s. 4(1). It would be meaningless standing alone. Attorney‑General for Alberta v. Attorney‑General for Canada, [1947] A.C. 503 (P.C.), at p. 518.

 

138.     Section 4(3), added by amendment in 1982, is subject to the same infirmity.

 

139.     The same could be said of ss. 1, 2, 3 and 5. All contemplate the unconstitutional two step promulgation process authorized by s. 4(1) and are designed either to facilitate or complement that scheme.

 

140.     Additionally, ss. 2(a) and 5 violate Blaikie No. 1's requirement that the English and French texts of statutes be equally authoritative. Section 2(a) provides that when one version conflicts with the other, the original enactment prevails over the subsequent translation. And s. 5 provides that for all laws enacted before January 1, 1981 any ambiguities or inconsistencies in cross‑references to other laws are to be resolved by reference to the English text of such laws. These provisions cannot stand. Any mechanism for resolving semantic conflicts between the English and French versions of a statute which prefers one text to the other renders the non‑preferred text legally irrelevant, since it cannot safely be relied upon. The non‑preferred version has the status of law only in so far as it is consistent with the preferred version. In all instances, it is necessary to have regard to the preferred version in order to know the law. This is in conflict with the command of Blaikie No. 1 that both language versions be "official" (at p. 1022).

 

141.     It does not matter, for constitutional purposes, whether the linguistic preference is expressly given to one language, as in s. 5, or left to be determined by the member who introduces the bill, as in s. 2(a). Any mechanism for attributing superior status to one language version, however fashioned, violates s. 23 of the Manitoba Act, 1870.

 

142.     Section 3(1), which provides for certification of the language of enactment, and s. 3(2), which establishes a conclusive presumption that the language of enactment was English in the case of all statutes enacted before the coming into effect of the 1980 Act, are clearly ancillary to and inseverable from s. 2(1). They are also, as we have said, inseverable parts of the unilingual enactment scheme envisaged by s. 4(1). They therefore fall with these two sections.

 

143.     Section 1, which provides simply that the term "official language" means either English or French, would be innocuous in any other context. It is clearly, however, ancillary to the invalid provisions of the 1980 Act. The term it defines, "official language", appears fourteen times in the four unconstitutional sections discussed above. In our view, s. 1, although unobjectionable in itself, is inseverable from the invalid provisions and falls with them. It would, in any event, be meaningless standing alone.

 

144.     Subsection 2(b) provides that where a statute is bilingually enacted, conflicts in meaning between the two language versions are to be resolved by giving preference to the version that "according to the true spirit, intent and meaning of the Act as a whole, best insures the attainment of its objects". This subsection, too, is inextricably bound up with the other unconstitutional provisions of the 1980 Act, and is invalid for that reason.

 

145.     Sections 1 to 5 of the 1980 Act are invalid and of no force or effect under s. 23 of the Manitoba Act, 1870.

 

146.     Sections 6, 7 and 8 of the 1980 Act, however, are severable from the unconstitutional moiety and do not substantively conflict with s. 23. Section 7, for example, repeals the Official Language Act 1890 which this Court held invalid in Attorney General of Manitoba v. Forest, supra. Section 6, in turn, gives the 1980 Act a chapter number in the Continuing Consolidation of the Statutes of Manitoba. And s. 8 simply provides for the Act coming into force on the day it receives royal assent. These three provisions are unobjectionable and can stand on their own, free from the defects which infect the rest of the 1980 Act. They are, in our view, severable from the unconstitutional provisions of the 1980 Act.

 

147.     To summarize, the entire Act, except for new s. 4(3), may be invalid under s. 23 of the Manitoba Act, 1870, if it was not enacted, printed and published bilingually. The record is inconclusive on this point. Substantively, ss. 6, 7 and 8 are unobjectionable. Section 4(1), however, violates s. 23's requirement of simultaneous, bilingual enactment and ss. 2(a) and 5 violate s. 23's requirement that both language versions be equally authoritative. The remaining sections of the Act are inseverable from the constitutionally infirm provisions and fall with them.

 

                                                                           VIII

 

Conclusions

 

148.     i) Section 133 of the Constitution Act, 1867 and s. 23 of the Manitoba Act, 1870 are mandatory;

 

149.     ii) All Acts of the Manitoba Legislature that were not printed and published in both the English and French languages are, and always have been, invalid and of no force and effect;

 

150.     iii) The Acts of the Manitoba Legislature which would currently be in force were it not for their constitutional defect (i.e. current Acts) are deemed to have temporary validity and force and effect from the date of this judgment to the expiry of the minimum period required for translation, re‑enactment, printing and publishing;

 

151.     iv) Rights, obligations and any other effects which have arisen under current Acts, and purportedly repealed or spent Acts, of the Legislature of Manitoba, which are not saved by the de facto doctrine or doctrines such as res judicata and mistake of law, are deemed temporarily to have been, and to continue to be, valid, and of force and effect until the expiry of the minimum period required for translation, re‑enactment, printing and publishing;

 

152.     v) The Court will, at the request of either the Attorney General of Canada or the Attorney General of Manitoba, made within one hundred and twenty days of the date of this judgment, establish the minimum period necessary for translation, re‑enactment, printing and publishing of (1) unilingual Acts of the Legislature of Manitoba which would be currently in force were it not for their constitutional defect, and (2) the unilingual repealed and spent Acts of the Legislature of Manitoba. Following such a request, a special hearing will be set and submissions will be accepted from the Attorney General of Canada and the Attorney General of Manitoba and the other interveners.

 

153.     vi) An Act Respecting the Operation of Section 23 of the Manitoba Act in Regard to Statutes, 1980 (Man.), c. 3, is invalid and of no force and effect in its entirety if it was not enacted, printed, and published in both official languages. In any event, ss. 1 to 5 are invalid and of no force and effect.

 

                                                                            IX

 

Answer to the Questions

 

Question 1

 

154.     "Are the requirements of section 133 of the Constitution Act, 1867 and of section 23 of the Manitoba Act, 1870 respecting the use of both the English and French languages in

 

(a) the Records and Journals of the Houses of the Parliament of Canada and of the Legislatures of Quebec and Manitoba, and

 

(b) the Acts of the Parliament of Canada and of the Legislatures of Quebec and Manitoba

 

mandatory?"

 

Answer:

 

155.     Yes.

 

Question 2

 

156.     "Are those statutes and regulations of the Province of Manitoba that were not printed and published in both the English and French languages invalid by reason of section 23 of the Manitoba Act, 1870?"

 

Answer:

 

157.     Yes, but, for the reasons given by the Court, the invalid current Acts of the Legislature will be deemed temporarily valid for the minimum period of time necessary for their translation, re‑enactment, printing and publication.

 

             

 

Question 3

 

158.     "If the answer to question 2 is affirmative, do those enactments that were not printed and published in English and French have any legal force and effect, and if so, to what extent and under what conditions?"

 

Answer:

 

159.     The Acts of the Legislature that were not enacted, printed and published in English and French have no legal force and effect because they are invalid, but, for the reasons given by the Court, the current Acts of the Legislature will be deemed to have temporary force and effect for the minimum period of time necessary for their translation, re‑enactment, printing and publication.

 

Question 4

 

160.     "Are any of the provisions of An Act Respecting the Operation of Section 23 of the Manitoba Act in Regard to Statutes, enacted by S.M. 1980, Ch. 3, inconsistent with the provisions of section 23 of the Manitoba Act, 1870, and if so are such provisions, to the extent of such inconsistency, invalid and of no legal force and effect?"

 

Answer:

 

161.     If An Act respecting the Operation of Section 23 of the Manitoba Act in Regard to Statutes enacted by S.M. 1980, Ch. 3, was not enacted, printed and published in both official languages, then it is invalid and of no force and effect in its entirety.

 

162.     If it was enacted, printed and published in both official languages, then ss. 1 to 5 are invalid and of no force and effect.

 

163.     The questions referred to were answered as follows:

 

Question 1:‑‑Yes.

 

Question 2:‑‑Yes, but, for the reasons given by the Court, the invalid current Acts of the Legislature will be deemed temporarily valid for the minimum period of time necessary for their translation, re‑enactment, printing and publication.

 

Question 3:‑‑The Acts of the Legislature that were not enacted, printed and published in English and French have no legal force and effect because they are invalid, but, for the reasons given by the Court, the current Acts of the Legislature will be deemed to have temporary force and effect for the minimum period of time necessary for their translation, re‑enactment, printing and publication.

 

Question 4:‑‑If An Act Respecting the Operation of Section 23 of the Manitoba Act in Regard to Statutes, enacted by S.M. 1980, Ch. 3, was not enacted, printed and published in both official languages, then it is invalid and of no force and effect in its entirety.

 

If it was enacted, printed and published in both official languages, then ss. 1 to 5 are invalid and of no force and effect.

 

            Solicitor for the Attorney General of Canada: R. Tassé, Ottawa.

 

            Solicitor for the Société franco‑manitobaine: Joseph E. Magnet, Ottawa.

 

            Solicitor for the Fédération des francophones hors Québec: Gérald‑A. Beaudoin, Hull.

 

            Solicitors for the Attorney General of Quebec: Jean‑K. Samson and André Binette, Ste‑Foy.

 

            Solicitor for Roger Bilodeau: Vaughan L. Baird, Winnipeg.

 

            Solicitor for Alliance Québec: Stephen A. Scott, Montréal.

 

            Solicitor for the Freedom of Choice Movement: Walter J. Roustan, Montréal.

 

            Solicitor for the Attorney General of Manitoba: R. H. Tallin, Winnipeg.

 

            Solicitor for Douglas L. Campbell, James A. Richardson, Cecil Patrick Newbound, Russell Doern, Herbert Schulz and Patricia Maltman: D. C. H. McCaffrey, Winnipeg.

 

 

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